Opinion
(June Term, 1854.)
No action at law of any kind can be maintained against a sheriff for seizing, selling, and delivering goods of a partnership to the purchasers, in obedience to a fi fa against one of the partners.
(BLEVINS v. BAKER, 11 Ire. Rep. 291; McPHERSON v. PEMBERTON, ante. 378, cited and approved.)
THIS was an action of Trover, brought to recover the value of certain partnership goods, sold by the sheriff and delivered to the purchasers, tried before his Honor Judge SAUNDERS, at Spring Term, 1854, of New Hanover Superior Court.
E. G. Haywood, for the plaintiff.
J. H. Bryan and W. A. Wright, for the defendant.
The plaintiff and one Southgate were partners, in the business of merchandizing, at a place called Strickland's, in the county of Duplin. The plaintiff resided in the town of Wilmington, while the other partner, Southgate, gave his personal attention to and carried on the business at the place above named.
The defendant's intestate, who was the sheriff of Duplin county, by virtue of an execution, issuing from the County Court of New Hanover, against Southgate, levied upon the goods in question, which were those of the firm, and sold the same at auction, and delivered them to the purchasers. Southgate was proved to be insolvent at the time of this levy and sale, but the plaintiff was solvent.
The goods brought $250, but they originally cost $600, and were worth at Strickland's $700.
The defendant contended that the plaintiff was not entitled to recover.
1st. Because one partner alone cannot sue at law, in tort, for an injury to the partnership effects.
2nd. Because the defendant's intestate was authorized, by the execution against Southgate, to levy and sell the partnership goods, and to deliver the same to the purchaser.
3rd. He also contended, that, if the plaintiff was entitled to recover at all, he was only entitled to damages for a moiety of the goods sold.
The Court charged the jury, that if the evidence was believed, the defendant's intestate had the right, by virtue of the execution against Southgate to levy and make sale of the goods levied on, but had no right to deliver them to the purchaser, and that the plaintiff would have the right to recover the whole actual value of the goods sold.
Under these instructions, the jury returned a verdict for the plaintiff.
Rule for a venire de novo; rule discharged, and appeal to this Court.
In the case of BLEVINS v. BAKER, 11 Ired. Rep. 291, this Court said, that "the interest of a partner in the partnership effects may be sold under a fi fa for his individual debt." TREADWELL v. ROSCOE, 3 Dev. Rep. 50. The sheriff must of necessity seize and take into his possession the effects levied on, in order to make the sale, and the other partner cannot maintain an action of any kind, either against the officer who levies and sells, or against the purchaser who takes possession." The same doctrine has been recognized and confirmed at the present term, in the case of McPHERSON v. PEMBERTON, ante, 378 These seem to be direct authorities, that the sheriff may not only seize and sell the partnership effects, but may deliver possession of the articles sold to the purchaser, and that no action can be maintained therefor against either the officer or purchaser. But our attention has been called to the case of DEAL et. al. v. BOGNE, (recently decided in the Supreme Court of Pennsylvania, and reported in the March number, 1853, of the American Law Register, page 301,) where it was held, that though, in such a case, the sheriff may seize and sell, he cannot deliver possession of the partnership effects to the purchaser; and that if he does so, the injured partner may maintain an action of trespass, vi et armis, against him, and also against the plaintiff in the execution, should he attend the sale and become a purchaser of any part of the effects. If that case be law, it shows that the present action in trespass on the case, cannot be supported; for, it decides that the sheriff's, by delivering the articles sold to the purchaser, executed the writ illegally, and became thereby a trespasser ab initio. Of that, however, we say nothing, because we do not acquiesce in the decision that an action in any form can be maintained. The only case cited in its support, besides some from the same State, is TAYLOR v. FIELDS, 4 Ves. Jr. 369; the facts of which are said to be more fully stated in a note to YOUNG v. KEIGHLY, 15 Ves. 559. That case, which was one of those referred to by the plaintiff's counsel in his well considered argument before us, was a case in equity, and was decided upon the equitable principles to which we will hereafter advert. It is no authority in favor of the present action at law, whilst the case of PARKER v. PISTOR, 3 Bos. and Pul. Rep. 288, decided by the court of Common Pleas, is a strong authority directly against it. That was a rule calling on the plaintiff to show cause why the sheriffs of London should not have time, until the first day of the next term to return a writ of fi. fa. The defendant was one of two partners, and the application was made on the part of several creditors of the partnership, and the object was to prevent the partnership goods from being sold until an account could be taken of the several claims upon this property. The Court, after argument by able counsel, discharged the rule, saying "that it was a very plain case at law, and that all the difficulties were to be encountered in equity; that the safest line of conduct for the sheriff to pursue was to put some person in possession of the defendant's share as vendee, leaving him and the parties interested, to contest the matter in equity, where a bill might be filed, stating that he had taken possession of the property, and praying that it might not be disposed of until all the claims were arranged." Upon a similar application made on the same day, in CHAPMAN v. KOOP, ibid, 289, Lord ALVANLY, C. J., said he hoped it might be the last; — and after some other observations, proceeded as follows: "By the law of England, the creditor of any one partner may take in execution that partner's interest in all the tangible property of the partnership, and will thereby become a tenant in common with the other partners. This the Plaintiff has done, and we are desired to restrain his execution, because it is alleged that he stands in the shoes of a partner, who would not have a right to molest the other partners until all accounts between them had been settled. But, if the other partners wish to take advantage of this circumstance, they ought to file a bill in equity, against the vendee of the sheriff, or they may buy in the property when put up to sale. It has been said that the Court of King's Bench would suspend the plaintiff's execution until he consented to an account being taken before the master, but I do not think we are authorized to take such a step in this case. Indeed, I can hardly conceive a case in which we should be authorized so to do." In thus clearly stating the right and duty of the sheriff to seize, sell and deliver the goods of the partnership in an execution against one partner, the Court was but following what had been done by Lord HOLT, about a century before, in the case of POPE v. HAMAN, Com. Rep. 217. "Upon a fi. fa. against one co-partner, (said his Lordship,) the sheriff may take the goods of both in execution, and the other co-partner hath no remedy at law, otherwise than by re-taking the goods if he can; for the vendee of the sheriff becomes tenant in common with the other co-partners." These cases, which seem to have escaped the attention of the Judges who decided the case in Pennsylvania, have been followed in this State." In TREADWELL v. ROSCOE, above referred to, HENDERSON, C. J., after stating that partnership property is liable to the separate debts of individual partners, said, "It is true, that the purchaser of partnership property under a fi. fa. against one of the partners, stands in the place of such partner, and can only claim, so far as the article purchased extends, what that partner could claim, that is, a share in the profits, or rather surplus, after the payment of the debts of the firm. But what are the rights of the purchaser, or his relation to the other partners, affects not the creditor in the fi. fa. or the sheriff, who has seized the partnership effects." A still stronger case, perhaps, is that of WELLS v. MITCHELL, 1 Ired. Rep. 484, in which it was held that one partner cannot maintain an action of any kind, at law, against a person who purchases from another co-partner, the partnership effects, though such sale was made by the co-partner in fraud of the partnership rights, and to satisfy his own individual debt. Now, we suppose it to be very clear, that whatever tangible property a debtor may sell and deliver in payment of his debts, may be seized, sold and delivered by the sheriff under a fi. fa. against such a debtor. Such has been stated to be the rules with respect to all the vested legal interests of a debtor, and it must apply as strongly to those which are vested in possession as to any other. KNIGHT V. LEAK, 2 Dev. and Bat. Rep. 133. In WELLS v. MITCHELL, RUFFIN, C. J., in delivering the opinion of the Court, shows clearly and conclusively how little adapted Courts of law are to afford an adequate remedy to the partner who is likely to be injured by the sale, and concludes by saying that those Courts "leave the whole subject to that tribunal which can administer exact justice in the premises." The tribunal to which allusion is thus made is the Court of Equity, and the remedy is, for the parties interested, who are likely to be injured, either to file a bill against the purchaser from the sheriff, or, what, perhaps, would be better, a bill to enjoin the sale until an account of the state of the partnership could be taken, so as to ascertain the share of the partner whose interest was levied upon under the execution. However that may be, we think that no action at law of any kind can be maintained against the sheriff for seizing, selling and delivering the goods of the partnership to the purchasers, in obedience to the writ of fi. fa. against one of the partners, under which he acts. The judgment must be reversed and a venire de novo awarded.