Tredwell v. Rascoe, 14 N.C. 50, 3 Dev. 50 (1831)

June 1831 · Supreme Court of North Carolina

14 N.C. 50, 3 Dev. 50

James J. Tredwell v. William D. Rascoe.

Tlia purchaser of partnership effects, under a fi. fa. against one co-partner, takes them subject to the accounts of the partnership, and can only claim a share of the surplus after payment of the debts. But the sheriff is in no way affected by this equity between the purchaser and the other partners.

Trespass, against the defendant, for seizing a quantity of salt, the property of the plaintiff.

The case of the plaintiff was, that the salt arrived at Edcnton in February, 1828, from Turk’s Island, consigned to the order of the shipper, Lewis Leroy, who was a copartner of one Blair, residing at Edcnton; that the bill of lading had been indorsed by Blair to the plaintiff, and that the latter had secured the duties upon the-salt, and had taken out a permit for the landing of it— that before the whole of it was landed, the defendant took possession of it, and sold it — that at the time of the sale, none of the salt was present, except one bag as a sample, part of it being then in a store-house of which the defendant had the key, and the residue was on hoard the vessel in winch it arrived — the captain of the vessel declaring that he would deliver it upon being paid his demurrage, and having the duties secured.

The defendant justified under aji fa. issued to him as sheriff of Chowan,upon a judgment against Blair,tested of the December term, 1827, of Chowan County Court, and returnable to the succeeding March term. He proved that upon the arrival of the salt, Blair and the plaintiff went to the custom-house together — that Blair said, he wished to enter the salt and secure the duties — that he commenced writing the oath preparatory to making the. entry — but before he had completed it, he told the plaintiff he would not enter the salt, for fear some of his creditors should seize it, or give him trouble about it, and asked the plaintiff to enter it for him. That the plaintiff consenting, Blair, under a power of attorney, from Leroy, indorsed the bill of lading to him — whereupon he secured the duties.

His Honor Judge Norwood instructed tbe jury, that it Leroy and Blair owned the salt, in partnership, the share of Blair in’ it was nevertheless liable to seizure under an execution against him — and that the purchaser would be a tenant in common with Leroy, although in a court of equity he Would be bound by the state of the partnership accounts. . That the indorsement of the bill of lading would enable the plaintiff to maintain this action without actual possession — that the in-dorsement was also prima facie evidence of a consideration paid by the plaintiff, but might be explained by pa-rol testimony, and if without value, or made to defraud creditors, was void. And further, that when the lien of the United States for the duties was removed, the lien of the execution attached upon the salt, and prevented Blair from transferring his interest in it, so as to defeat that lien.

A verdict was returned for the defendant, and the • plaintiff appealed.

The case was submitted without argument, by Gaston, for the plaintiff, and by Hogg, for the defendant.

HekdersoN, Chief-Justice.

I cannot perceive the least objection to the instructions given by the presiding judge. That partnership property is liable to the separate debts of individual partners ; that a consignment without value will not transfer the property ; that an as--signment of the consignee without value has no greater effect,- that a transfer by or for a debtor after the teste of a fi,. fa. is fraudulent, and void against tbe creditor ; that goods afloat, before duties paid or secured, arc liable to seizure under eifi.fa. saving nevertheless the rights of the government, are all propositions, 1 think, which cannot be contradicted. 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 ji. fa. or the sheriff, who jiag sejze(| ^]ie partnership effects.

Act.uaT osses ■sionis.iot-neces-saiy 10 d»e yali-dityofasjicrifi’s sale, rtissuffi-S^uriecttoMs control.

I have considered this case divested of the imputations • of fraud, which appear to he justly ascribable to it. But if they are considered, I cannot perceive even the sha-doAV of a doubt. Blair, the debtor, when about to enter the goods, either in his own name, or in that of Leroy, or in that of Leroy and Blair, requests the plaintiff to permit them to be entered, or to have them entered in his, the plaintiff’s, name ; and this with an avowed intent to hinder or delay his creditors, or to save himself from trouble in regard to them; meaning no doubt a contest with his creditors. The plaintiff assents, and becomes his instrument for such purposes. The whole transaction, if these be the facts, is fraudulent and void; not only by a legal inference, as being done after the tesie' of the fieri facias, but by an actual, express and designed fraud, to-wit, fraud in fact; and deserves no countenance, either in-law or morals.

As to the sheriff’s not taking actual possession,not having ■the property present at the sale, and not delivering it to the purchaser, if these were wrongs, they were wrongs to others, and not to the plaintiff. If he seized not the goods, then even the allegation of the plaintiff fails; and this action, for that reason, fall to the ground. If he had not the goods present at the sale, and the sale should thereby be void, in this also the plaintiff is riot concerned or injured. If he did not deliver the salt to ^ie PUI>chaser, how is the plaintiff affected thereby ? But it requires not an actual seizure — a manucaption — to make a seizure or arrest in law. A submission to the domi- . . , . nion, power, will or control of the officer, is sufficient: *S a possession. And I apprehend here all was done that the law required. The captain declared that he would deliver the salt to the purchaser upon the duties being paid, and the purchaser accepted it on these terms. The salt being afloat, could not in that state he ¡brought on land, without a permit from the custom-house officer, which he would not grant until the' duties w»n-e scoured, which the sheriff was not bound to do. Nor was he bound to take notice, that the plaintiff had then secured them ; or if he did, he secured them apparently for himself, and not for Blair; and he did not apprize the sheriff of what he had done, and require him to have the salt present at the sale. Under these circumstances, the sheriff sold by a sample; and I think the law required nothing more of him. But the case needs not this protection. The plaintiff cannot complain of these acts as omissions, for as to him they are immaterial.

3’er Curiam. — Judgment affirmeju