Whigham's Appeal ( 1870 )

The opinion of the court was delivered, May 5th 1870, by

SharSwood, J, —

The case of the plaintiff below is surrounded with many doubts and difficulties in the most favorable aspect of it to him. The master reported as an undisputed fact that Hamilton Whigham, Andrew Taylor, and Robert Taylor formed a copartnership, under the name and style of Whigham, Taylor & Co., for the purpose of running and carrying on .the business of a portable saw-mill — Whigham owning two-thirds, and the other two each one-sixth. The plaintif having obtained judgment against Hamilton Whigham, issued an execution under which he levied, and sold not his interest in the partnership but his interest in the mill. Partners have no separate title in any aliquot part of the partnership property. Their interest is an incorporeal— intangible thing — a right to an account, and to their share of the balance after all the partnership debts are paid and all equities between the partners adjusted. If upon an execution against one partner the sheriff should levy upon and sell his interest in a single bale of goods, it could not be maintained that his vendee would acquire his entire interest in all the assets. As the vendee of his interest in a single chattel it is not easy to see how his purchase could be made available, unless that chattel were separately to be sold and then charged with its proportion of the firm debts to the sum produced by the sale of all the other property and the collection of the outstanding' credits of the firm. The only decree which he could he entitled to would be a general account and settlement of all the concerns and business of the firm, the conversion of the assets into money — the payment of the joint debts — and the distribution of the balance according to the rights and equities of the partners — thus stepping into the shoes of the debtor partner to the extent of the interest, and no further, that he had acquired by the sale. No one has ever pretended that he thereby became a partner and entitled to an account of the profits merely from the time his title accrued. These points have not been raised and discussed either in the court below or in this court, and we give no opinion upon them. They are mentioned only to preclude any inference from silence.

Let us assume, however, that the plaintiff by his purchase of Hamilton Whigham’s title became absolute tenant in common of the chattel with the other partners. The master reports as an undisputed fact that before the date of the execution Hamilton Whigham had sold his interest to the appellant, that this sale was boná fide for a valuable consideration, and that there was no actual fraud. The ground then of the decree below could only have been legal fraud — that there was no sufficient delivery of possession accompanying and following the sale. Now this chattel was in the possession of Andrew Taylor, one of the copartners. By the express terms of the partnership he was the general business agent and superintendent of the business. He was notified of the transfer to the appellant. Whether the appellant became a partner or not is immaterial. The business continued to be carried on under the old firm name. The possession of one tenant in common is the possession of all. What delivery could the appellant have required ? The tenant in common in possession recognised his title. Had he commenced an action of replevin with no evidence of an actual ouster he must have been defeated: Morris on Replevin, 113; In Field v. -, 4 Ves. 396, in the Court of Exchequer, Chief-Baron McDonald, after laying down the general position “ that the corpus of the partnership effects is joint property ; and neither partner separately has anything in that corpus, but the interest of each is only his share of what remains after the partnership accounts are taken;” adds “ that the party coming' in the right of the partner comes into nothing more than an interest in the partnership, which cannot be tangible, cannot be available or he delivered, but under an account between the partnership and the partner; and it is an item in the account that-' enough must be left for the partnership debts.” This passage has been quoted with approbation by Lewis, J., in Baker’s Appeal, 9 Harris 82, citing in confirmation of it Deal v. Bogue, 8 Harris 228. If then, when the appellant gave notice to Andrew Taylor of his purchase and obtained from him an acknowledgment and recognition of his title, he had done everything which he could do and had no legal remedy to enforce any other delivery; it is clear that he ought not to lose what he had acquired by a fair purchase, and that the rule which requires that an exclusive possession should be delivered to him has no application.

Decree reversed, and now it is ordered and decreed that the bill be dismissed at the costs of the appellee.