Scrugham & Mackie vs. Carter & Labagh, 12 Wend. 131

By the Court, Savage, Ch. J. The assignment and judgment were both found fraudulent against creditors, and the evidence sustains the verdict. The assignment is fraudulent upon its face, and is therefore void as against creditors; but it is valid against the assignors. I consider the plaintiffs standing in the place of Byrne and Fletcher, and having their right to the property, and no other ; and if the judgments in favor of Carter were judgments against both Byrne and Fletcher, there could be no question about the correctness of the decision of this cause at the circuit.

According to the decisions of this court, 1 Wendell, 311, 2 Caines’ R. 254, and 9 Wendell, 439, the judgments entered against Fletcher, impleaded with Byrne, are valid judgments against Fletcher, but not against Byrne; they do not purport to be judgments against Byrne. Upon executions against one partner, the sheriff can sell the interest which such partner has in the partnership property, after the partnership debts are paid. In the matter of Smith, 16 Johns. R. 106.

The officer certainly would have had a right to sell the mere interest of Fletcher, and the purchaser would have taken it subject to the claims of the partnership creditors and of the other partner. In the matter of Smith, above cited, it is said that the sheriff does not in such cases deliver possession. He must, however, have the right to levy. Each partner is entitled to the possession of the partnership proper- ^ ^ one exc^u^es the other, no action at law lies — the remedy is in equity.

So if the sheriff by virtue of an execution against one of several partners, takes possession of the property, an action at law, I apprehend, does not lie against him. The court from which the execution issued would stay proceedings upon it, to give time to have an account taken in equity; but if no such stay is obtained, the officer can sell the right of the partner who is the defendant in the execution* According to the rule in equity, the partnership accounts should all be liquidated before a sale on the execution ; 2 Ves. & Bea. 300; 16 Johns.

R. 107, n.; but if a sale should be made, and the purchaser should take the property, would he be a trespasser? or would he not be tenant in common with the other partner of the partnership property, subject to the claims of the creditors of the partnership ? The sheriff or other officer, in making a levy and taking the property to a place of safe deposit, is surely not a trespasser; and that is all which it is necessary to decide in this case. The action of re-plevin does not lie in such a case.

This is a case in which a judgment of retorno habendo would be peculiarly proper, for it is by no means certain that any thing will be realized by the creditor; on the contrary, it is quite probable that the partnership effects are insufficient to pay the partnership debts. The statute provides that whenever the defendant shall be entitled to a return, except in cases of distress for rent, instead of taking judgment for such return, he may take judgment for the value of the property replevied. 2 R. S. 531, § 55. In this case a verdict was taken for the amount of the executions in favor of Carter.

As no objection was made at the circuit to this mode of assessing the defendants’ damages, we may presume that the amount of the executions is less than the value of the property reple-vied. I can perceive no irregularity in this course. It is fair so to construe the statute as to give the full value of the property replevied, when the defendant’s demand equals or exceeds such value, and in such cases only.

Had the value of the property replevied in this case been f500, a balance would remain in the hands of the defendant, which, unless claimed by other creditors, would belong to the plaintiffs, and which they might recover by an action if payment was refused. To prevent circuity of action, if for no other reason, it is proper that the defendant take judgment for no more than the amount of his demand. From this view of the case, a new trial must be denied ; though it must depend upon circumstances not now before the court, whether the defendants can be permitted to retain the amount of their verdict.

If the property itself had been returned, it would have been liable in the hands of the defendants to the claims of the creditors of Byrne and Fletcher for partnership debts ; and as the money is substituted for the property, it is subject to the claims of the same creditors, who no doubt will ask for a stay of proceedings, or file their bill in equity, presenting their claims. New trial denied.