Kepler v. Erie Dime Savings & Loan Co.

Mr. Justice Green delivered the opinion of the court, December 30th 1882. It is true that the affidavit of defence alleges that the real estate assigned to the affiant was the property of the partnership of Hayes & Kepler, but that is the only averment it makes on that subject. The other allegations are merely conclusions of the affiant which may or may not be correct. Thus he says that, “ consequently” the property was not subject to the debts of the defendant, except as to any surplus remaining after payment of the partnership debts, and that there can be no such surplus because the assigned property is not sufficient to pay the debts. He then expresses his belief that the plaintiff’s judgment was not a lien upon the property assigned to him, and closes the affidavit. We are clearly of opinion that the affidavit does not disclose sufficient facts to prevent a judgment of revival. In the case of Lefevre’s Appeal, 19 P. F. Smith 122, the present Chief Justice showed, in a careful review of the authorities, that even when real estate was purchased with the money of a firm, and title taken in the name of the firm, it was not enough to convert it into personalty as partnership property. In order to accomplish that result as to strangers, purchasers, mortgagees and creditors, the fact that the property is held as partnership property must be expressed on the face of the deed [604] itself, or else some agreement in writing to that effect must shave been executed by the members of the firm and duly recorded. If this has not been done, notice of the character of the real estate as partnership property must have been brought home to a purchaser or creditor before he can be affected by it. It will be perceived that the facts which will give the quality of personal estate to partnership land are exceptional and special. They cannot be presumed, but must be alleged and proved, if one who is either a purchaser or creditor is sought to be affected. It is essential that the affidavit of defence, in a case like the present, must set forth the facts which arc necessary to defeat the revival of the plaintiff’s judgment. All the actual facts alleged in this affidavit may be strictly true, and yet it would not. necessarily follow that the plaintiff is not entitled to judgment. It is the exhibition of this peculiar kind of title to. the public that gives immunity to real estate so held, from the claims of lien creditors of the individuals composing the firm. If it does not appear on the face of the deed, or by some recorded agreement in writing, that the land in question is held as partnership land, it does not have that qualiity. This fact, then, being vital, must be specially alleged, and in case of contest, must be proved, in order to defeat the plaintiff’s claim. Especially is this the case where, as here, the proceeding is simply a scire facias to revive the judgment against the original defendant, and one who is his assignee for the benefit of creditors. Such an assignee is not a purchaser. lie is a mere volunteer standing in the place of the assignor, and as a general rule has no rights against the lien creditors of the assignor, which the latter did not himself have. In Luckenbach v. Brickenstein, 5 W. & S. 145, it was held that assignees under a voluntary assignment for the benefit of creditors have no rights as against a mortgage creditor which could not be claimed by the assignor himself. In Ludwig v. Highley, 5 Barr, on p. 137, we said, “The assignees being mere volunteers are regarded but as the agents of the assignor, standing in his place, and consequently, as a general rule, take only such rights and interests as he himself had, and could claim, at the time of the assignment made.” It is only necessary to add that the defendant in this case makes no defence against the revival of this judgment, and further, that this is not a proceeding for the distribution of the proceeds of the sale of the land of the defendant. Hence we decide nothing more than the mere question Of, revival. If it shall turn out hereafter that there are partnership creditors claiming that any real estate which the defendant held, either as a partner or otherwise, at the time the writ in this case was issued, was really partnership property, [605] and not subject to tbe lien of this judgment, their right's will not be in the least degree prejudiced by the decision of this case. Judgment affirmed.