Canada v. Barksdale , 1881 Va. LEXIS 78 ( 1881 )

Christian, J.,

delivered the opinion of the court.

The court is of opinion that, upon the proofs and pleadings in this cause, it clearly appears that Canada and Barks-dale were partners in the purchase of real estate, and that the land in the bill and proceedings mentioned, purchased by them of A. Vance Brown, was bought on speculation, and was held by them as partners, as speculators in real estate, and. that they each held an interest in said land, according to the amounts which each had advanced respectively.

The court is further of opinion that the 426 acres purchased of Williams, trustee, was not purchased as the sole property of Canada, but was the partnership property of Canada and Barksdale.

The court is further of opinion that the circuit court erred in giving a personal decree against Canada in favor of Barksdale, without first directing a sale of the partnership property, to-wit: the 426 acres of land held by Canada and Barksdale jointly as partners.

The effect of this decree operated as manifest iujustice to Canada. It not only gave a personal decree for money against him, but by said decree gave to Barksdale a lien for the amount decreed on the land, thus enabling Barks-dale to purchase the land, if sold, as it would be, in satisfaction of said lien, at a sacrifice, and, in all probability? to get the whole land for his debt, and leave Canada still indebted to him for the balance.

The court is of opinion that the said circuit court, instead of entering a personal decree against Canada for the amount as ascertained by the decree of the circuit court to be due from Canada to the partnership, ought to have first directed a sale of the partnership property—the 426 acres of land in the bill and proceedings mentioned—and apply the proceeds first to the payment of Barksdale’s debt; and if the proceeds of such sale were not sufficient to pay the debt, principal and interest, due Barksdale, then for any deficiency, after such appropriation of the proceeds, a personal decree should be rendered against Canada for one-half of such balance as may still be due from the partnership to Barksdale.

It is therefore decreed and ordered that the decree of the said circuit court of Halifax county be reversed and annulled, and that the appellant recover of the appellee his costs by him expended in the prosecution of his appeal and writ of supersedeas here.

And the cause is remanded to the said circuit court of Halifax county for further proceedings to be had therein, in accordance with the foregoing opinion and decree.

All of which is ordered to be certified to the said circuit court of Halifax county.

Decree reversed.