Barrett v. McKenzie

Gileillan, C. J. The plaintiffs were a copartnership composed of Edward H. and E. E. Barrett, Preston Cooper and Cyrus Severance, and brought this action upon the balance of an indebtedness accruing to them as such copartnership. The defence rested on the facts that L. Butler & Co. recovered judgment, and issued execution thereon against the property of another copartnership, composed of Preston Cooper and one B. Cooper, and that the sheriff, before the return-day of the execution, levied upon, and, after the return-day, sold, the interest of Preston Cooper in the debt on which this suit [23] is brought; that, at such sale, L. Butler & Co. became the purchasers, and afterwards the defendant paid to them the part of the debt constituting the balance for which this suit is brought, and paid the other part of the debt to plaintiffs. The court below rendered judgment for the plaintiffs. This judgment must be sustained, if at all, upon one of two propositions : First, that the execution was void because made after the return-day of the execution; second, that if the sale was valid, the purchaser at it acquired thereby no title to, nor right to receive payment of, the debt or any part of it. Upon the first of these propositions the law is clear. It is an undoubted rule at the common law, that a sheriff who commences the execution of his writ, by a levy, before the return-day, may complete it, by a sale, after such day. Jackson v. Browner, 7 Wend. 388; Wood v. Colvin, 5 Hill, 228; Wheaton v. Sexton, 4 Wheat. 503; Butterfield v. Walsh, 21 Iowa, 97; Pettingill v. Moss, 3 Minn. 151 (222.) The statute, (Gen. St. c. 66, § 265,) as amended by the act of February 15, 1871, (Laws 1871, c. 61,) referred to as abrogating this rule, was passed merely to avoid the necessity of issuing an alias execution, and was not intended to, and does not by its terms, affect any common law rule governing executions. Although the authorities are not entirely uniform as to the second proposition, the weight of authority and the principles governing partnerships and the rights of partners, partnership creditors and purchasers of the interest of individual partners, sustain the decision of the court below, that the purchaser of Preston Cooper’s interest got no title to, nor right to receive payment of, the debt. Unquestionably an attachment or execution against the property of one of the partners may be levied upon his interest in. chattels belonging to or in debts due the firm. And, although it has been sometimes doubted, the sheriff, in levying upon the partner’s interest in a partnership chattel, may take possession of the [24] chattel to the exclusion of the other partners, while the levy continues. Caldwell v. Auger, 4 Minn. 156, (217.) This right of exclusive possession is necessary to make the levy effectual. But a levy upon a partner’s interest in a debt due the firm does not affect the right of the firm to collect or sue for the debt, even pending the levy. Day v. McQuillan, 13 Minn. 205. For that right does not interfere with the proceedings of the sheriff, and his levy does not divest the title of the partnership to the debt or any part of it. The levy is not on the debt itself, but on the partner’s individual interest in it. That interest is a right to share in the surplus after the partnership affairs are settled. It is a contingent interest, depending for its value upon a surplus for the debtor partner existing after the firm debts are paid, and the accounts of the partners between themselves settled. The debtor partner has, it is true, authority to collect the debt; but that authority he derives from being a partner, and, as such, an agent for the firm to transact its business, and to collect debts due it, for the purpose of such business. Neither the relation of partner or agent, nor the authority dependent on it, can pass to the purchaser. He only becomes “ a quasi tenant in common with the other partners in the property of the firm, so far as to entitle him to an account, and, because he does not become a partner, with the settlement of the concerns of the firm he has nothing to do. That is the right and duty of the remaining partners, and of course they are entitled to the exclusive possession of all the property.” Reinheimer v. Hemingway, 35 Pa. St. 432-437; 1 Story Eq. Jur. § 677; Matter of Smith, 16 John. 102; Day v. McQuillan, 13 Minn. 205; Deal v. Bogue, 20 Pa. St. 228. The purchaser comes into “ nothing more than an interest in the partnership which cannot be tangible, cannot be made available, or be delivered, but under an account between the partnership and the partner.” Lucas v. Laws, 27 Pa. St. 211-212; Hubbard v. Curtis, 8 Iowa, 1. A purchaser, then, of a partner’s interest in a firm debt, [25] acquires no title to the debt itself, and no right to receive payment of it. On this ground the judgment below is affirmed.