Richard v. Allen

Opinion, Mr. Chief Justice Gobdon : We may admit for the purposes of this case, however doubtful the proposition, that a constable may levy an execution which he holds against an individual member of a firm, on his interest in the goods and assets of the partnership; yet, even with tins admission, the case in hand is by no means determined in favor of the plaintiffs in error. The constable’s levies were necessarily confined to the property of the individuals against whom they were issued, qua individuals, and his seizure of the goods of the firm was a trespass- and legally void. A partnership is a distinct entity, and the joint effects belong to it, and not to the several partners: Doner v. Stauf [206] fer, 1 P. & W. 198. It follows, that the levies on the goods of the linn of Sargent & Holt, for the several debts of the individual members of that firm, created no lien upon those goods, and were, in fact, as nugatory as though levied upon the property of a stranger. Admittedly, had the sale been on but one of the writs, the purchaser would have taken no right in the firm assets, but only the right to compel an account with the continuing partner, and such also is the purport of the first section of the act of the 8th of April, 1873. If, however, a levy on the interest of a single partner would have created no lien on the goods in controversy, we cannot see how a levy on the individual interests of both could alter the legal aspect of affairs, for in either case those interests were several, and the firm rights remained unaffected. The action of the constable did not deprive the partnership of the control of its own goods; the several partners still continued to be the agents of the firm, and it would not be proper to say that a sale by both or either of them, as such, would not have passed a good title to a purchaser of those goods regardless of the levies. But the sheriff’s levy, made by virtue of an execution issued on a judgment against the partnership, was a lien on the goods themselves, and his sale was not the disposition of a mere right in the firm, but of the property itself, and, therefore, vested in his vendee the absolute ownership thereof, leaving to the constable’s vendees the' right to have so much of the proceeds of the sale as remained after the satisfaction of the sheriff’s writ. Had there been no levy by the sheriff on the property in question until after the sale to the plaintiffs, their case would have been different; in that event, the interest of both parties having been disposed of, there would, thereafter, have been no partnership in existence, hence, no firm goods on which to levy: Doner v. Stauffer, supra. The equities of partnership creditors depend on the equities of the partners, and as long as a partner continues to have an interest in the partnership, so long do the equities of the firm creditors continue; but when the rights of all the partners have been disposed of, either by judicial or private sale, neither partnership nor partnership rights remain; and, consequently, they, the creditors, have no longer anything to which they can look for a satisfaction of their claims except individual responsibility. But as a [207] levy on tbe right of a partner neither divests that right, nor dissolves tbe partnership, clearly, tbe power of tbe firm to dispose of its own goods is not thereby affected, and, as a consequence, tbe equities of firm creditors remain. That the judgment was confessed by tbe firm subsequently to tbe levies by tbe constable, even though tbe debt for which it was given was contracted after those levies, is not of material consequence ; it was, nevertheless,' a debt of the firm for the payment of which the goods might have been assigned, or converted into cash; and as the levies by the constable created no lien, the property was entirely free for seizure on the execution against the partnership. The judgment is affirmed.