Gill v. Mizell

Lochrane, Chief Justice.

Two parties, named respectively Mizell and Proctor, entered into a copartnership in farming, in the beginning of the year 1867, and at the close of the year Mizell fell in Proctor’s debt, to extinguish which, he made sale to him of two mules and some stock, and the parties agreed to go on the ensuing year, 1868, upon the same terms, which they did. At the close of 1868, Mizell applied to the Ordinary to have certain property exempted as personalty, and in his schedule, included the two mules and other property previously sold. A few days subsequent to the application, both parties submitted all their accounts and controversies to arbitrators, who awarded.the amount of $780 00, due to Proctor from Mizell, and found the sale valid; but directed, if Mizell paid the money, he ivas to have the mules and stock back; and under such award, Gill, acting by way of Receiver, sold the property, and Mrs. Mizell, for herself and minor children, brought suit against him for the money, and upon the trial, under the view entertained by the Court, that this award, which had been made the judgment of the Court, created only a lien on the property of Mizell, and such lien was displaced by the right of the family under the exemption, etc., and his charge to that effect, the jury found for the plaintiff.

Held, under the facts in this case, that the award of the arbitrators was conclusive and 'binding upon all the ¡parties thereto, and the wife and children of Mizell had no right in the property, found under such award to belong to Proctor, without first complying with the award and paying the amount due.

Held again, that the sale of the cotton under such award did not render the party selling a trespasser and liable to action as such, and that, inasmuch as the cotton being raised in copartnership was to be sold and the money paid over to the extinguishment of a copartnership debt, the judgment of the Ordinary did not, by such exemption, change its legal status, or vest any right therein superior to the award.

Judgment reversed.