Charleson v. McGraw

Mr. Justice Langford

delivered the opinion of the court.

The transcript in this case shows that the appellants were copartners, and that a levy of execution was made upon their partnership property. It is admitted that the .execution creditors were creditors of the partners. The appellants claim the property so levied upon as exempt from the execution. The legality of this claim is the only question before us. Each partner, by force of the relation between them, has a lien upon all the assets of the firm to pay the balance due him upon settlement, and to pay firm debts. As against this-lien no exemption can prevail. The firm creditors may take advantage of this lien, and by levy are subrogated in law to-the partners’ right of lien, and hence an individual right of one or all the partners cannot be set up as against such levy. The lien on these assets takes precedence of any several or joint right of the persons composing the partnership. Though, property may be exempt as against debts, simply as such,, it cannot be exempt against debts to which is added this-lien. If a receiver in equity would take possession of partnership property, no partner, nor all of them, have any right to it, but have only a prospective right to the distribution. The contract of partnership imports this lien, and public policy and the law maintains it. The partners, neither severally or jointly, can assert any right against the lien after levy is-made, because they have no right of any kind that can prevail against it. When the property levied upon is joint, but not copartnership, the case is quite different, for here no lien exists to cut off the right of the individual partners. Each of the owners, having an interest clear of any lien, has-a several dominion over his undivided part, and by the mere-will of the parties the property may, without let or hinderance, be divided.

*349 If a levy be made by a creditor of one tenant in common, only his undivided share alone can be sold, and the purchaser becomes cotenant in the place of the debtor whose interest has been levied upon and sold. The common owner, not party to the case upon which the execution issues, is not affected by such sale. The owner in common sued, might claim that his interest was exempt from sale because his interest, though undivided, is his individual property, and because joined physically with the property of another is not less his individual property.

So, if two tenants in common owe a joint but not partnership debt, and by virtue of this debt a levy is made upon their property so held in common, each might hold his interest therein as exempt. We do not decide that he can, for that is not this case; but yet, a case that holds that he can is not authority as to what the decision should be in this case. We are not prepared to say that tenants in common, as against a joint execution levied upon their common property, may not, in a proper case, join in their claim to exemption : as if two persons held and used household furniture together, or the like. • However that may be, we are satisfied that neither one or all the members of a firm can deprive a firm creditor of his levy on partnership assets.

Copartners are tenants in common as to assets, and added to the right as such tenants in common, is the partnership right of lien, which is a unity of right inseverable. This partnership right of lien attaches to the entire partnership assets, and holds them for sale for firm debts, and, while existing, supersedes all rights of each and every partner, whether joint or several. The entire right, joint and several, of each and all the partners are merged in this lien, which supersedes them. If this lien be removed, then the partners lose that character and become tenants in common only. This lien exists as long as the property is partnership property, and a levy of a firm creditor thereon is a levy to enforce the lien.

Let the judgment be affirmed.

Turner, J., and Allyn, J., concurred.