Page v. Carpenter

Parker, C. J. By the contract of the 30th December, 1836, the property in the tubs passed to the plaintiff, as between the parties to that contract, and the plaintiff might well have held them against Derby & Howe. There was a formal delivery of the tubs then in the barn. The plaintiff had the right to take possession of the whole. If there were less than one hundred and fifty nests, as the evidence seems now to show, he had a right to hold and dispose of the whole. Had there been more, he might have selected that number in a reasonable time, and would have been bound to return the surplus to Derby & Howe. It is not a case of an executory contract, but of an executed sale, so far as the parties to it were concerned. But this sale, although valid as between the parties, must be regarded as fraudulent as to the creditors of Derby & Howe, because the property, after the sale, was permitted to remain in their possession. It was not removed, and the plaintiff took no lease of the barn. He had no control over it, but Derby & Howe occupied it as before the sale. They agreed that the property should be stored there until boating commenced, and they were then to transport it to the landing, and deliver it there. This gave Derby & Howe an opportunity to treat the property as their own after the sale, and thereby obtain a false credit. It appears that Howe afterwards actually sold part of it, as if he was the owner. The case comes clearly within the principle laid down in Coburn vs. Pickering, 3 N. H. Rep. 415; and the defendant’s [81] deputy, Platts, had a lawful right to attach the property upon the demand of Haile against Derby & Howe, and to hold it for the security of that demand until thirty days after the judgment. See, also, 4 N. H. Rep. 314, Trask vs. Bowers; 8 N. H. Rep. 288, Paul vs. Crooker. But he had no right to attach and hold it on the writ in favor of Ripley and others against Howe alone. As to every person except the creditors of Derby & Howe, the property had passed to the plaintiff. Derby & Howe could not contest his right to it. Neither of them, singly, could contest his title. The creditors of the partnership might deny its validity as to them, because there had been no change of possession ; and there being no sufficient explanation of this circumstance, the evidence of fraud as to them was conclusive. If, however, there had been no sale, the creditors of Howe could not have attached the property itself. They could have taken only the interest of their debtor in the partnership property, after an adjustment of the partnership debts. 8 N. H. Rep. 238, Morrison vs. Blodgett. Having no right to attach and take possession of the tubs while they were the property of Derby & Howe, they cannot object to the sale, that there was no change of the possession. That objection can be made by those only who had a lawful right to seize them. The sale cannot be regarded, therefore, as fraudulent as to the creditors of one of the partners, nor can it enlarge their rights. Nor can Ripley and the others, who were plaintiffs in the second action, be regarded as creditors of the partnership of Derby & Howe, in this case. They had, originally, a debt against the partnership; but having, after the dissolution, taken a joint and several note, and having commenced a suit on that note against Howe alone, they are not in a situation now to claim the rights of creditors of the partnership. They cannot in that suit have judgment against the partners. Their judgment must be against Howe alone ; and only his property and his interest in the partnership effects after the [82] partnership accounts are taken, can be sold on such judgment. 1 Wend. 311, Craine vs. French; 7 N. H. Rep. 357, Gibson vs. Stevens; 8 N. H. Rep. 238. Upon these principles this action cannot be sustained, because the sheriff, at the time when it was commenced, had the lawful custody of the property, under the attachment upon Haile’s writ against the partnership. Having a lawful right to the possession of the property under that writ, his return that he had attached it on the writ of Ripley and others, subject to the former attachment, cannot amount to a conversion. Although he had no right to make the latter attachment, that did not vacate the former. He had still the right to hold the property as he did hold it; and he might have sold it on Haile’s execution, and have applied the avails in satisfaction of it, had not that execution been satisfied by the sale of other property. It was not until after this action was commenced that his right to hold it ceased. There was, therefore, no unlawful conversion of the property until the sale of it on the execution of Ripley and others, which was subsequent to the commencement of this suit; and the action, in the view we have taken of the rights of the parties, was commenced prematurely. The verdict for the plaintiff must be set aside, and, unless the plaintiff elects to become nonsuit, the pase must be transferred to the common pleas, for a New trial.