Moorman v. Beauchamp , 4 Bush 145 ( 1868 )

JUDGE ROBERTSON

delivered the opinion of the court:

The justice of this case is rather vexatiously obscured by the absence of all evidence, except what may be inferred from the petition and answer, on which alone the judgment was rendered in favor of the appellee as a substituted creditor of the partnership property.

The denial of his judgment and execution is not such as the Code required; and, therefore, the answer dispenses with extraneous proof.

The sale by the partner Fletcher of his interest in the firm-may have waived his lien as partner, so as to preclude the appellee’s subrogation thereto over Fletcher’s individual creditors; but there is no proof of any such waiver of the lien of the other partner, Burks. The affirmative allegation to that effect in the answer is not itself proof, and is unsustained by any other evidence.

Consequently, as there is no proof of any waiver of Burks’ lien, the appellee appears to be entitled, by substitution, to the benefit of it; and, on this ground, the judgment seems to be right, and is, therefore, affirmed.