Moore & Co. v. Sample , 3 Ala. 319 ( 1842 )

GOLDTH WAITE, J.

The quantity of interest which each partner has in the goods of the partnership, may oftentimes be a question very difficult to decide, but it is certainly clear, from authority, that this interest is the subject of levy and sale under an execution. We have heretofore had occasion to examine the cases connected with this principle, although it has not been directly presented for decision, in any case before us. Most of them are collected and stated in the case of Winston v. Ewing, 1 Ala. Rep. N. S. 129, and we shall consider our duty as discharged, by giving some of the reasons which led our minds to this conclusion.

Each partner has an interest in his own right, coupled with a possession, and the conjunction of these, is sufficient in every case, to authorise a sheriff in making a levy. Whén the levy is made, if the rights or interests of other partners are so commingled with those of him whose estate is seized, that injury to them will probably result from further action by the sheriff; a case is presented for equitable interposition. If this is not successfully invoked, the sheriff must, of course, proceed to sell. We are not now required to declare what right the purchaser may acquire under such a sale, but unless it can be made, the singular anomaly would exist, of a possession held by the defendant, coupled with an interest in his own right, which cannot be reached by execution at law. It is needless to say, if such a condition of property was permitted by law, it would lead undoubtedly to covin and fraud.

Hence, we conclude, that the evidence offered, was properly rejected.

2. The charge of the Court, seems also to be free from error. The sheriff, is bound at his peril, to answer for the interest which the defendant has in the goods which are levied on, and if not permitted to have exclusive possession, they might be eloigned without his fault. It is the misfortune of those whose interests are so connected with those of a defendant in execution, that their respective estates cannot be severed. But this condition of things, certainly ought not to cause injury, either to the plaintiff or the sheriff. If there is any fault, it is with the partners, who have so connected their estates, that justice cannot be done to others, without injury to themselves. Morley v. Stromborn, 3 B. & P. 254; Parker v. Pistor, ib. 288; Chapman v. Koops, ib. 288; Heyden v. Heyden, 1 Salk. 392; Bechurst v. Clinkard, 1 Show. 169; Jacky v. Butler, 2 Ld. Raym. 871.

The judgment is affirmed.