Barrett v. Furnish

StrahaN, C. J.

Several questions were presented on the argument by appellant’s counsel, but we will only notice such as we deem material to a proper disposition of this appeal.

In Bower v. Holladay, 18 Or. 491 , this court considered, to some extent, the various sections of the code in relation to the enforcement of a judgment after the death of the defendant which was rendered during his life-time, by execution, and the conclusion was reached that the judgment creditor had the right to his execution at any time after the expiration of six months from the granting of letters testamentary or of administration. Whether the several sections in the code in relation to the presentment to and payment of claims by an executor or administrator and the order of payment in any way affect or modify section 281, Hill’s Code, which expressly authorizes the issuance of an execution in such case, though somewhat considered, was not decided; nor in the view we take of this case is it necessary to be decided here, for the reason that the property levied on is real estate upon which the judgment became a lien at the time it was docketed under section 269, Hill’s Code; and when such lien attaches it cannot be displaced or affected by the death of the party. The rights of the parties have become fixed by the law and by the entry and docketing of a judgment pursuant to its provisions; and the accidental circumstances that one of the parties dies before satisfaction of the judgment in no manner impairs or affects the party’s rights acquired under it, except to defer its enforcement by the execution for six months after the granting of letters testamentary or of administration.

It was insisted by appellants’ counsel that the judgment *20 in this ease was against Miller & Robley as partners for a partnership debt, and that therefore an execution could not be levied upon the individual property of one of the partners until the individual debts of such partner were first paid; but this contention could not prevail without displacing the lien acquired by the docketing of the judgment under section 269, supra. And this seems to be the effect of the authorities. In a note to McCulloh v. Dashiell's Admr. 18 Am. Dec. 283 , the learned annotator observes: “ But we apprehend that a levy and sale under a writ against the members of a co-partnership of the separate property of either member will pass a title paramount in law to any which can be acquired under a subsequent levy upon the sapie property under a writ to enforce the separate and individual debt of the partner to whom the property belonged as his separate estate; and further, that when a partnership creditor has by proceedings at law acquired a judgment, execution or other lien upon the separate pi’op-erty of one of the partners, or has taken any proceeding whereby at law he has secured the right to appropriate such separate estate to the satisfaction of an obligation incurred by the partnership, equity will not, at the instance of any individual creditor of such individual partner, wrest such right from the partnership creditor nor compel him to postpone his proceedings until the individual creditors of the partner, whose separate estate has been levied upon, have first received satisfaction therefrom.” And this proposition is supported by a large number of authorities cited.

No doubt cases may arise presenting such persuasive equities that chancery would interfere for the purpose of controling or preventing an unconscionable use of an execution; but this case is entirely destitute of any such equities, and is wholly wanting in any facts or circumstances authorizing or requiring the interposition of equity. It is the ordinary case of a waiting and indulgent creditor, who, having acquired a prior lien upon all the real property of each of the defendants, is now seeking satisfaction by a *21 levy upon the real property of one only of such defendants. No reason has been shown why he may not pursue this remedy. Of course, if the entire claim is collected from Miller’s property, his administrator will have a claim for contribution which he may enforce against Robley.

This view of the subject disposes 01 every question necessary to be considered on this appeal and requires an affirmance of the decree appealed from.