Boone v. Sirrine , 38 Ga. 121 ( 1868 )

Brows, C. J.

The store-room was rented to Nunn & Baily, as partners, who commenced business in it as booksellers, and soon after dissolved partnership, Nunn remaining in the possession of the room, and conducting the business, and Baily retiring. Did this dissolution of the firm affect the rights of Mayo, or of Boone, his assigeee? We think not. Mayo rented to Nunn and Baily, as a firm, and accepted them jointly, as his tenants, and they could not, without his consent, change the relation, by a conveyance, one to the other, so as to compel Mayo to accept either alone as his tenant, or look to one, or to the individual estate of one, for the payment of his debt.

Section 2253 of the Revised Code, declares that the tenant cannot convey his usufruct without the landlord’s consent, and that it is not subject to levy and sale. We are quite clear, therefore, that the dissolution of the firm did not affect Boone’s right, as assignee of the rent notes, to look to the partner in possession for the payment of the rent out of the stock in trade in the store, or the proceeds of the business.

After Nunn’s death, his administrator, with the consent of the Ordinary, continued the business in the store-room, under the rent contract, for the benefit of the estate, and now refuses to pay the rent notes for the time he possessed the room, on the ground that this debt must be put on the footing of other debts against Nunn & Co. We do not think the lease, or the stock in trade, ceased to be partnership property, as against the rent notes, till they are paid. And as they formed no part of Nunn’s estate, the widow had no right to take these assets in payment of the very liberal allowance (in view of the condition of the estate,) which had been given her, as year’s support, till the administrator had. paid the rent due, at the least, for the time he occupied the store under the order of the Court of Ordinary. Our opinion, therefore, is, that the Court erred in dissolving the injunction.

Judgment reversed.