Parler v. Johnson

Bleckley, Chief Justice. 1. The code, §§1899, 8351, expressly provides that where some of the partners sued on a copartnership contract are served with process and others not, and these facts appear by proper returns, the judgment shall bind the copartnership property, and also the individual property of the partners who have been served. It is said these sections do not apply where all are served. They do not literally, but they take it for granted that where all are served all would be bound, and they establish a like rule where the service is but partial instead of complete — that is, they carry the judgment as it respects individual property as far as the service has gone but no farther. Can there be any good reason why individual property should be affected where some only are served, and not affected where all are served ? It is suggested that áfi.fa. against A and B, “copartners,” is against the partnership only, and not against the partners, either or both, individually; that if they have property as copartners, it may be seized, but what they have severally, as mere individuals, cannot be seized under a direction to seize the property of A and B, copartners. Suppose “ copartners ” omitted, would [259] not the ji. fa. be authority for seizing not only the joint property of A and B, but the separate property of either ? There can be no doubt that it would, for it is the universal practice to connect defendants in fi. fa. conjunctively and not disjunctively. To reach individual property the writ does not have to say, nor does it ever say, A “or” B, but it always says A “and” B; and so it would do, putting the word and before the last defendant, and nothing before any of the others, were there a score of defendants. Then it is not and which makes the present problem, but copartners. The effect of this word is either to render partnership as well as individual effects subject to seizure, or it is mere description. Construe it either way, and it will leave untouched the validity of the fi. fa. as to individual property. There may be some doubt as to whether the jfi. fa. could move against partnership property, but there is none whatever that it is authority for seizing the individual property of either defendant. 2. One witness testified that the land actually sold by the sheriff was not that embraced in the sheriff’s return and in his deed of conveyance; that the reversion in the land covered by the widow’s dower was not sold. More than twenty years had elapsed, and surely the recollection of this one witness was not sufficient to match and master official documents like these. The defendants in the action wanted to traverse the return, that is, make up a collateral issue denying its truth. The court declined to allow this, and we suppose correctly, for we never heard of the like. They who proposed the traverse were not parties to the cause in which the return was made. 3. That the bidder, with the consent of the sheriff did not pay cash down, but held himself ready to pay the money when it was wanted, and after some delay [260] suffered another person to pay the money and take the sheriff’s deed, was no hurt to any one and was not unlawful. If the sheriff chose, at his own risk, to let the bidder retain the money, and the bidder chose to allow another to pay the money and be substituted for himself as purchaser, neither law nor public policy was violated, so far as we can see. We think it is a common practice and a harmless one for those who bid off property at public sales to direct titles to be made to other persons; and if the officer gets the money when he wants it, no matter whose it is or who pays it. The money is no worse for coming from a third person, and the conveyance no worse for being made to such person. 4. The levy was upon the whole fee in the premises, but the sale • excepted the widow’s right to dower. That she had such, right was afterwards established, for before the sheriff made his deed, the dower was assigned and laid off. We see nothing to invalidate the sale in the fact that the levy was upon a larger estate than was sold. The sale could not be good for more than was embraced in the levy; for less it could be, and, we think, was good. 5. The kind of description of the premises which the deed contained is substantially indicated in the fifth head-note. We think it was sufficient to prevent the deed from being void for uncertainty. . Generally whether the premises can be identified by the description is a question for the jury. The plain import of this deed is to convey the reversion in the identical land upon which the widow’s dower had been located. The boundaries of the dower were the boundaries of the reversion. 6. We perceive no conflict of the verdict with law, and no want of sufficiency in the evidence to support [261] the finding. The result is, that the court did not err ' in denying the motion for a new trial. Judgment affirmed.