Tait v. Murphy , 80 Ala. 440 ( 1886 )

CLOPTON, J.

The issue joined on the trial is, whether the oxen and carts levied on are subject to plaintiff’s execution. The plaintifE claimed, that they were the property of Ií. E. Tait, one of the defendants in execution, and that he had fraudulently sold and conveyed them to appellant, who is the claimant. The claimant denied that they were ever the property of ti. E. Tait; and it appearing that, in March, 1884, he had obtained from the defendant in execution oxen and carts, he introduced evidence to show, that prior to the levy he had sold some of the oxen thus obtained, and the others had died, and that those levied on were bought from other persons, having ■ never belonged to H. E. Tait. On this evidence the claimant asked the court to give the affirmative charge as to the oxen. If this version be true, of course the oxen are not subject to plaintiff’s execution. But there was other evidence which raised a question respecting the identity of the property, and in support of this issue, in his favor, the plaintiff proved, that when the officer went on a former occasion to make a levy, the claimant asserted title to the property, and as his source of title exhibited a bill of sale executed by H. E. Tait, which on demand of plaintiff was produced by claimant on the trial. Though the production of the bill of sale and claiming thereunder, do not operate to prevent claimant to show, that the oxen in fact never belonged to II. E. Tait, bis assertion of title as made to the officer is a circumstance proper to be considered by the jury on the question of identity. The affirmative charges requested by claimant would have withdrawn this evidence from the consideration of the jury, and were therefore properly refused. Such charge should not be given, if there is evidence, though slight, authorizing an adverse inference.

The jury, as is evident from the verdict, having found the property in controversy to be the property of the firm of Tait & Tait, under an instruction from the court, subjected one-half thereof to the payment of the execution. Assuming that there was evidence on which to base the hypothesis of the charge, which, however, is not disclosed by the record, it asserts an erroneous proposition. The interest of a partner is his share of the proceeds of all the partnership effects, after the liabilies have been satisfied. Such interest may be levied on and sold under an execution against the goods of the individual partner. A partner does not separately own, or have right of exclusive possession to, any particular article of the partnership property, or aliquot part thereof. The real ownership and the legal title are vested in the firm. — Daniel v. Owens, 70 Ala. 297; Farley v. Moog, 79 Ala. 246. If it be true, that the oxen and carts levied on are the property of a partnership, composed of the claimant and the defendant in execution, one-half thereof cannot be levied on and sold under an execution against the latter as*his share. If not subject to levy and sale, the plaintiff is not entitled to condemn such share to the payment of his execution on a statutory trial of the right of property. If such be the facts, he fails to sustain the issue, that the property is subject to his execution, and the jury should have been so instructed on the hypothesis of the charge.

By the statutes providing for and regulating the trial of the right of property when levied on under execution and claimed by a third person, it is declared, that if the jury subject the property to the payment of the execution, “they must assess as far as practicable, the value at the time of trial of each article separately.” — Code (1876), § 3343. The jury assessed the value of the property condemned at the gross sum of one hundred and fifty dollars. It was practicable to have assessed the value of each article separately; and on the authority of Townsend v. Brooks, 76 Ala. 308, the failure to do so is a reversible error.

Charge number 3 asked by claimant is defective in that it requires the court to instruct the jury as to the sufficiency and credibility of oral testimony.

Reversed and remanded.