Susan A. Graham v. F. M. Boynton and another, 35 Tex. 712

Walker, J. This is an action of trespass to try-title, brought by the appellant against the appellees, in the district court for the county of Rusk, at the October term, 1870. The question for our determination is as to the validity of a sheriff’s deed, through which the appellant claims title. The property in controversy is a house and lot in Henderson. The case was tried by the court, a jury having been waived.

The facts from which we are to «determine the law of the case are substantially these : McKleroy & Bradford, partners doing business in the city of New Orleans, sued the firm of Dunn & Yates, at the November term, 1858. The firm was composed of Dunn, Yates, and Ritchie, who were doing ■business in the town of Shreveport, in the State of Louisiana, at which place the partners severally resided. Suit was brought on an open account, and the balance claimed by the plaintiffs was between eight and nine thousand dollars.

An attachment was sued out and levied on the house and lot now in controversy, which is admitted to have been the individual property of Uriah Dunn, one of the partners of the firm of Dunn & Yates; and this, the appellant’s attorney says,, was because of the “non-residence” of the defendants. Thus, we suppose, it was intended by a proceeding in vem against the property of an individual partner, to bring the firm within the jurisdiction of the court.

Whether this could be done, to give the court jurisdiction of the firm of Dunn & Yates, is a question we will leave open to discussion, not finding it necessary to the decision of this case that the question should be herein determined. Subsequent to the levying of the attachment, Dunn sold the land to M. C. Turner, and •conveyed it by a deed dated October 22, 1859. Turner subsequently deeded the property to H. N. Cushman, and this deed bears date October 2, 1863; Cushman defends as the landlord of Boynton. Both parties deraign title through Dunn.

In order to arrive at an understanding of the appellant’s title, our attention must be directed to the original suit between McKleroy & Bradford and Dunn & Yates. Dunn and McKleroy both died during the pendency of the suit; their deaths were suggested. On the ninth day of December, 1868, the defendant, A. A. Yates, filed a plea in abatement. On the same day an exception to the plea was filed, which exception was sustained by the court, and Yates excepted to the ruling of the court; whereupon, Bradford, the surviving plaintiff, as the record tells us, abates his suit as to co-plaintiff W. H.

McKleroy, and co-defendants Uriah Dunn and Vincent Ritchie, and the court directed that the suit be proceeded in in the name of Joseph H. Bradford, surviving partner of McKleroy & Bradford, plaintiff, and A. A. Yates, surviving partner of Dunn & Yates, defendant. The cause was submitted to a jury, who found a verdict for the plaintiff in the sum of $15,933.35 ; on which verdict judgment was entered, execution issued, and the property was sold, and purchased by the appellant. Was the estate of Dunn so encumbered by the attachment on the twenty-second of October, 1859, that his deed to Turner conveyed no title ?

Suppose he had afterward paid the debt to McKleroy & Bradford, or that the attachment had been dissolved for want of a bond; or suppose he had entered special bail, or the attachment had been quashed for any irregularty, then certainly the deed to Turner would have been good for whatever interest Dunn had in the property. But we have not reached the question. What became of the attachment against his individual property, upon Dunn’s demise?

This question is not entirely free of all doubt; the decisions in the different States upon this point have been so governed by State laws that it is somewhat difficult to ascertain what would be the ruling of the courts (of some of the States at least) were it presented to them as it now is to us. We have had recourse to the authority of text writers and other authorities. In Davenport v. Tilton, 10 Metcalf, 320, it was held, that upon the appointment of an administrator, who takes the property of the deceased as trustee for the creditors, all attachments on mesne process are dissolved.

In Pennsylvania, in the case of Fitch v. Ross, 4 S. & R., 557, it is held, that the death of the debtor dissolves an attachment, if it occur before final judgment, and he shall not have put in special bail. In the case last referred to, the court say: “If these proceedings were in all respects in rem, they would not abate by the death of the defendant; for some purposes they are to be so considered.” The same question was decided in Pancost v. Washington, 5 Cranch, C. C., 507. In Collins v.

Duffy, 7 Louisiana Annual, 39, it was decided that an attaching creditor acquires no lien upon the property of his deceased debtor. In Tennessee (3 Humphreys, 139, 6 Ibid, 157,) and Missouri (7 Missouri, 421, 13 Ibid, 446,) the doctrine is laid down, that the death of the defendant, pendente lite, dissolves the attachment. In Tennessee the doctrine would seem to be that the suit may be revived and proceeded in against the administrator, but no order can be made for the sale of real estate without also making the heirs parties.

The doctrine is perhaps more strongly stated in the Missouri cases, and it is further held that if the death take place after judgment without personal service, the property only being bound, the same result would follow. The same doctrine is laid down in South Carolina. (Kennedy v. Raguet, 1 Bay, 784; 1 Treadway, 83.) In New York a contrary doctrine is held, with the condition that the action must be such as would survive against the representative.

In this case there was no personal service upon Dunn, and instead of any attempt to revive the suit against the administrator, the plaintiff, by a formal announcement made upon the record, dismissed his suit as to Dunn. Certainly there could be no further action taken in this suit against the individual property of Dunn. The case of Robertson against Paul, 16 Texas, lays down a rule against which we have admonished the profession, but we may safely apply the principle therein enunciated to cases like the one at bar.

It is a fact well known to the profession that Justice Story, in deciding cases under the general bankrupt act of 1841, stoutly maintained that an attachment was not a lien in the sense of the common or maritime law, or law of equity, but only a contingent and conditional charge until the judgment and levy; and therefore was dissolved by the defendant’s bankruptcy. (See 2 Story, 131, and 3 Story, 428, cited in the notes to par. 435, Drake on Attachment.) But this opinion, though carrying with it great weight, has never been acquiesced in by the profession, but has been strongly opposed by the ablest jurists of the country.

We find a forcible argument in the brief of appellees5 counsel, drawn from the following premises: A deed by one partner to the real estate of the firm, though he attempt to convey the entire interest of all the partners, will be good only for his own interest. (Story on Partnership, par. 188.) Is it possible, then, for a creditor of the firm, who takes his judgment only against the surviving partner, to proceed to sell under execution the individual property of a deceased partner, against which he has no judgment in rem, or against whom he has no judgment in personam, ?

We are clearly of opinion that such a proceeding would be void, and a purchaser at execution sale would take no title whatever; and this brings us to the final disposition of the case. The judgment of the district court is affirmed. Affirmed.