McPherson v. Pemberton, 46 N.C. 378, 1 Jones 378 (1854)

June 1854 · Supreme Court of North Carolina

46 N.C. 378, 1 Jones 378

McPHERSON AND CONN, v. W. S. PEMBERTON, ET. AL.

Where persons enter into a co-partnership, with the fraudulent purpose of hindering or delaying the creditors of one of the parties in the collection of their debts, such persons cannot maintain an action of trespass, q. c. f., jointly against a person who forcibly enters the store house and seizes the goods. An officer who has an execution against one of several partners in trade for the individual debt of the partner, may sell the joint property of the co-partnership and does not, thereby, subject himself to the action of the other joint owner by so doing.

(Blevins v. Baker, 11 Ired. Rep. 291. Cited and approved.)

Appeal from tbe Superior Court of Montgomery, at tbe Fall Term, 1853, tried before bis Honor Judge Settle.

This was an action of Trespass, q. c. f., for breaking and entering plaintiffs’ store-bouse, and for carrying off a quantity of goods. It appeared from the evidence that previously to tbe trespass complained of, tbe business of merchandising had been carried on, in tbe bouse in question, in tbe names of McPherson and Conn, and that, in consequence of the absence of tbe plaintiff, McPherson for some time, tbe defendant, Pemberton, took out an original attachment againt him, for a debt which he owed him and placed the same in the hands of the other defendant, Ballard, a deputy sheriff of the county, who by virtue thereof, broke open the house in question, and took out and sold the goods there found by him, as the property of the Plaintiff, McPherson.

The proceeding by attachment was objected to as evidence, upon the ground that an attachment for the individual debt of one of the partners could not be levied upon the partnership effects.

The defendant insisted that the sole interest of the property in question was in the plaintiff, McPherson, and that no partnership existed between him and the other plaintiff, Conn, and that it was a mere fraudulent contrivance, to hinder and delay the creditors of McPherson, and that the note upon which the attachment issued, and the judgment rendered thereon were examined to show that defendant, Pemberton, was a creditor so as to entitle him to raise the question of fraud. The evidence was received by the Court. Other evidence was adduced by the defendants tending to show the fraudulent nature of the co-partnership. It was contended by the defendants that the sei-sure 'and sale of the property was lawful under the process in the hands of the deputy sheriff, and that, whether the co-partnership was bona fide or otherwise; and furthermore, that allowing it to be true, that an attachment could not be served on the plaintiffs’ effects for the individual debt of one of the partners, yet, that the doing so was an injury personal to the partner who was not a debtor, and that a joint action, in the name of the two partners, could not be maintained therefor.

His Honor, reserving the other questions in the case, told the jury, that, if they believed that a bona fide partnership existed between the plaintiffs at the time of the entering the store by the defendants, they ought to give the plaintiffs damages to the amount of the injury they had sustained; but that, if they dia not believe the partnership existed at all, or that it had been entered into without sufficient valuable consideration paid, or bona fide agreed to be paid by Conn to McPherson, and with ar intent to defeat, hinder, and delay the creditors of McPherson they ought to find for the defendants.

Under these instructions, the jury rendered a verdict for the defendants.

Rule for a venire de novo, which was discharged. Judgment and appeal to this Court.

Kelly, for the plaintiffs.

Strange, for the defendants.

Nash, C. J.

We are saved the labor of investigating the questions raised at the Bar, by the finding of the jury. One of the questions involved in the case, and which lies at its threshold, is the form of the action. The plaintiffs claim to have been partners in trade, and that the goods seized the defendants were their joint property, and the house entered, to have been in their joint possession. The defendants, among other things, contended that no partnership existed between the plaintiffs, and if any did, it was entered into fraudulently, for the purpose of defrauding the creditors of McPherson. Several other legal questions arose on the trial, all of which were reserved by the Court, and the question of fraud submitted to the jury. His Honor instructed them, that if they believed a bona fide partnership existed between the plaintiffs at the time of the entering the store by the defendants, they ought to give the plaintiffs damages, &c. But, if they did not believe the partnership to have existed at all, or that it had been entered into without a sufficient valuable consideration paid, or bona fide agreed to be paid by Conn to McPherson, and with an intent to defeat, hinder or delay the creditors of McPherson, they ought to find for the defendants. The jury found a verdict for the defendants. This finding put an end to the action. Theywer-' not partners, or, if so, it was for a fraudulent purpose, negativ ing their right to bring a joint action.

Although the finding of the jury supercedes the necessity of considering the several questions of law raised in the argument, yet, as there is, among them, one of considerable importance, both as regards the duty of the public officers of the State, and also the interests and rights of partners in trade, we have concluded to call the attention of our brethren of the Bar to it. It was urged at the Bar, that an officer cannot levy on the partnership property, to satisfy the individual debt of one of the partners ; and, if he did, he was answerable in an action to the other partner. The case of Blevins and Bakes, decided at August Term, 1850, of this Court, 11th Ired. 291, removes all doubt upon the subject. It is there determined, that an officer, who has an execution against a tenant in common of chattels, may levy it upon the property and take it into possession, for the purpose of selling the interest of the defendant in the execution ; and he docs not thereby subject himself to an action by the other tenant in common. And the Court say, the interest of a partner in the partnership effects may be sold under a jifa, for his individual debt; and that the other partner can maintain no action of any kind against the officer or purchaser.

There is no error in the judgment below, and it is affirmed.