Claiborne v. Their Creditors , 13 La. 279 ( 1839 )

Eustis, J.,

delivered the opinion of the court.

Claiborne, Mather and Leflicher, were the owners of a steam-boat called the Marmora; the former was the owner of one-half, and the two latter of one-fourth each. The boat was destroyed by fire: she was insured for forty thousand dollars. Claiborne and Mather made a cession of property, transferring to their creditors their interest in the policies of insurance. Leflicher and the assignees of a part of his interest, brought suit against the insurers for his one-fourth of the amount of the insurance. There were other suits which were cumulated with the proceedings of the insolvents, and by a decree of the court, with the consent of the parties, all these suits were consolidated. The effect of this decree, is to make, in point of fact, one suit. Leflicher and the assignees, became parties to the insolvent proceedings, and we must consider the whole fund as in court, for the purpose of distribution.

n The owners steam boats carrying- freight “"g oomnerSai partners ¡ and in liquidating the partnership af-of'the 'pariners ner cannot withtion of the°pi-¿I b°£( tjj. the partner first paid, 0f insurance on''a lost steam boat, owned by seve-™i partners, are fjjrancPmust he first applied to the payment of partnership enc^to'diose^of tlle individual owners or partners.

The judge of the District Court, on the opposition to the tableau of distribution of the funds made by Leflicher and his assignees, gave them judgment for the proportion of Leflicher’s interest in the amount of the insurance, to wit: one-fourtb, and gave the creditors of the steam-boat the other three-fourths, and ordered the tableau to be amended accordingly. From this judgment the syndics of the creditors appealed.

. . This claim of Leflicher and his assignees, for his proportion of the fund, may be considered as involving a demand for a partition and settlement of the partnership concerns. In 1 r 1 the article of the Louisiana Code 2861, the rules concerning the partition of inheritances, and the obligations which result from the same, between the heirs, apply to partners. In partition of inheritances, the payment of the debts is the first step taken. Even those due to the heirs who may have paid the debts of the succession, are to be deducted from the active mass before any partition takes place.

We consider that Claiborne, Mather and Leflicher, were commercial partners, and that the funds under the control of the court, are partnership funds, and must be first applied to , „ , . . , , . . , the payment of the partnership debts, in preference to those of the individual debtor. Louisiana Code, 2794. By the tableau, the funds in hand would pay no more than sixty- „ r J , , five per cent, of the debts of the partnership; no part of them can go into the hands of Leflicher, until the partnership debts are paid : the same reason prevents his private creditors 1 1 1 from receiving any portion of them until that event.

The judgment of the District Court is, therefore, reversed, and the cause remanded for further proceedings, with directions to the judge to settle and determine the claims of Leflicher, and E. Leon Bernard and Julien, as set forth in their opposition, according to the principles established in this decree.