Richardson v. Redd, 118 N.C. 677 (1896)

Feb. 1896 · Supreme Court of North Carolina

118 N.C. 677

J. E. RICHARDSON and wife v. E. M. REDD, Administrator of A. J. BOYD, et al.

Partners — Right to Exemption — Consent of Copartner— Consent of Administrator of Deceased Partner — Married Woman — Estoppel.

1. One partner is not entitled to his exemption from an execution on a judgment against the partnership without the consent of his copartners.

2. Surviving partners are not entitled to exemption from execution on a judgment against the partnership without the consent of the administrator of a deceased partner.

3. Where a married woman, not a free trader, contributed largely to the capital of a firm, and was dealt with by the partners as a copartner, they are estopped from setting up that, being a married woman, and not a free trader, she was incapable of contracting as a partner, in order to assert a right to exemptions in partnership property without her consent.

Civil action, tried before Norwood, P, at January Term, 1896, of Rockingham Superior Court. The action was brought for the purpose of having a receiver appointed for the Boyd Manufacturing Company, (a partnership composed — before its dissolution by the death of A. J. Boyd— of A. J. Boyd, S. H. Boyd, G. D. Boyd, and Mrs T. A. Richardson,) and to restrain the execution sale of partnership property by the defendant Bank of Reids-ville, on a judgment rendered in 1894. The defendant Redd is administrator of A. J. Boyd, deceased. A receiver was appointed, a reference made to ascertain the indebtedness, priorities, &c.¿ and from a judgment confirming the report of the referee, the defendants, G. D. Boyd and S. H. Boyd, appealed. The facts essential to an understanding of the decision of the Court are'stated in the opinion of Associate Justice FuRohbs,

Messrs. Johnston c& Johnston and H. B. Scott, for the plaintiffs.

Mr. A. J. Burton, for defendants (appellants).

Furches, J.:

A. J. Boyd, S. TI. Boyd, G. D. Boyd and Mi’s. T. A. Richardson were the individual members composing the partnership of the Boyd Manufacturing Company. A. J. Boyd is dead and the partnership is insolvent. The Bank of Reidsville has recovered a judgment against the concern for a partnership debt, sued out execution, and is trying to enforce its collection by a sale of the partnership property. S. H. Boyd and G. D. Boyd each claim their personal property exemptions out of the partnership effects, and have each assented to the other’s doing so. But Mrs. Richardson and the administrator of the deceased partner object, and the question is, Can S. II. Boyd and G. D. Boyd take their personal property exemptions out of the partnership effects, against the consent of Mrs. Richardson and the administrator Redd ? It has been repeatedly held by this Court that one partner is not entitled to this exemption without the consent of his copartners. Stout v. McNeill, 98 N. C., 1; Scott v. Kenan, 94 N. C., 296; Burns v. Harris, 67 N. C., 140. These authorities dispose of the case, unless there is some reason for distinguishing it from the cases cited. This the defendants S. H. and G. D. Boyd undertake 1o do by saying that A. J. Boyd is dead and cannot claim his exemption, nor can he give his assent to their doing so; and that Mrs. Richardson is a married woman now, and at the time of the formation of this partnership, and was not and is not a free trader, that on account of tins disability she was not then and is not now capable of contracting ; that this being so, her individual estate needs no protection against the creditors of the partnership ; that in fact she is not a partner and never has been,- although she put $5,000 in the concern, and was considered and treated as a partner.

It does not become necessary that we should determine the relation of Mrs. Richardson to this concern, further than to say that it appears from the case that she put five thousand dollars into the partnership, and must have some interest, and it hardly lies in the mouths of those who have dealt with her, as a partner, to set up her coverture for their benefit. We have discussed Mrs. Richardson’s relation, more than was necessary, for the purpose of showing that the reasoning of defendants, as to why she need not object, that she needs no protection for her individual estate against the creditors of the firm, does not apply to the estate of A. J. Boyd. And when it comes to a consideration of his interest, it is contended that his estate cannot be protected because he is dead, and can neither object nor assent. This is a right ingenious way of working the thing out. But it would be “ to stick in the bark ” and to abandon the principle upon which the rule has been established, to sustain the contention oí these defendants : that although the partnership was dissolved by the death of A. J. Boyd, still his estate — his administrator — has the same interest in its effects, and is under the same obligation to its creditors, that A. J. Boyd was when living. And if the rule was founded upon the principle of equitable lien that a partner has in the partner- ' ship effects, as is stated in Stout v. McNeill, supra, the estate — the administrator of A. J. Boyd — is as much interested'in having the partnership assets applied to the satisfaction of the partnership debts as A. J. Boyd would be if living. So, it is plain to see that the reason of the thing is against the claim of these defendants.

But if we should not be governed by the reason and spirit of the law, as we think we should, but conclude to “stick in the bark” and be governed by the letter of the law, we find these defendants in no better condition. The rule is-that they are not entitled to this exemption “without the consent of the other partner or partners,” and it is certain that A. J. Boyd has not given his consent to the allowance of these exemptions. The defendants, S. H. Boyd and Gr. D. Boyd are not entitled to the exemptions claimed, and there is no error.

No Error. Affirmed.