Blumenfeld v. Seward Bros.

Mississippi Supreme Court October 15, 1893

Blumenfeld v. Seward Bros., 71 Miss. 342 (Miss. 1893)

Cooper

Opinion of the Court

Cooper, J.,

delivered the opinion of the court.

The judgment in this cause must be reversed.

There are two grounds of defense against the right of appellees to subject the property seized to their judgment,, either of which is conclusive. The first is, that the creditor of one member of a firm cannot take in execution any specific article of the partnership property, but must levy upon the interest of the partner in the entire assets. At common law, this was effected by seizing the entire assets, which seizure dissolved the partnership, and the purchaser under execution became tenant in common with the other partners. Sanders v. Young, 31 Miss., 111.

But, by the code of 1880, § 1770 (following-the codes of 1857 and 1871), it is provided that where a defendant in execution shall own or be entitled to an interest in any property not exclusively in his own possession, such interest may be levied on and sold by the sheriff without taking the property into his actual possession ; and, since he may levy without disturbing the possession of the other co-owners, he must, do so. Willis v. Loeb, 59 Miss., 169.

*345But if the appellees were creditors of the firm of Lewis & Sou, there would have been no vendible interest in the property seized. The timber from which the ties were cat was bought and paid for by appellants under an arrangement between them and Lewis & Son, by which the cost of the timber and the operating expenses of the saw-mill were to be first paid, and the profits were to be applied by appellants to the payment of a'debt they held against Lewis & Son. This debt far exceeds the value of the property seized, and, since Lewis & Son could not recover the property without paying the debt for which it stands pledged, neither could their creditors. If the timber from which the ties were cut had been the property of Lewis & Son, a different question would be presented; but, in the act of acquiring the ownership o.f the property, a lien was fixed upon it in favor of appellants under their contract with Lewis & Son, and the lien was superior to the rights of judgment creditors. Cayce v. Stovall, 50 Miss., 396.

Judgment reversed.

Reference

Full Case Name: Blumenfeld & Fried v. Seward Brothers
Status: Published
Syllabus: 1. Execution. Levy on partner’s interest. Code 1880, jj 1770. Under ? 1770, code 1880, a judgment creditor of a partner cannot levy execution on any specific article of partnership property, but only on the partner’s interest therein. 2. Same. Levy without taking possession. Interest of partner. An officer levying execution on the interest of a partner in partnership property, must do so without disturbing the possession. Willis v. Loeb, 59 Miss., 169. Lien. Pledge. Property not in esse. Potential existence. Where a creditor supplies his debtor with timber to be sawed into cross-ties, under an agreement, although verbal, that, after payment of the operating expenses, the ties shall stand pledged to pay his debt, and be so applied by the creditor, a lien in his favor attaches to the ties when they come into existence, and this lien is superior to the rights of judgment creditors of said debtor. Gayce v. Stovall, 50 Miss., 396.