17 N.W. 353 (Neb. 1883), Roop v. Herron

Citation:17 N.W. 353, 15 Neb. 73
Opinion Judge:MAXWELL, J.
Party Name:JOSIAH ROOP, PLAINTIFF IN ERROR, v. NATHANIEL HERRON, DEFENDANT IN ERROR
Attorney:J. E. Bush, for plaintiff in error. L. M. Pemberton, for defendant in error.
Case Date:November 13, 1883
Court:Supreme Court of Nebraska
 
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Page 353

17 N.W. 353 (Neb. 1883)

15 Neb. 73

JOSIAH ROOP, PLAINTIFF IN ERROR,

v.

NATHANIEL HERRON, DEFENDANT IN ERROR

Supreme Court of Nebraska

November 13, 1883

ERROR to the district court of Gage county. Tried below before WEAVER, J. The opinion states the case.

AFFIRMED.

J. E. Bush, for plaintiff in error.

1. Partnership property is liable for partnership debts before a dissolution of partnership, but after a dissolution of the partnership and a transfer of the property by the firm, either to a co-partner or to any other person, the creditors of the partnership lose that lien the law gives them upon a partnership property. Wilson v. Kellogg, 11 Ohio 394. Smith v. Howard, 20 Howard's Pr. Rep., 121. Hapsgood v. Cromwell et al., 48 Ill. 64.

2. When a bona fide sale is made of the property of a firm by the members, before any proceedings either in law or equity are instituted by the creditors of the firm, such creditors cannot by any subsequent proceedings acquire a lien upon the property when disposed of. Gwin v. Selby, 5 Ohio St. 97.

3. As the ordinary creditors of an individual have no lien on his property and cannot prevent him from disposing of it as he pleases, so the ordinary creditors of a firm have no lien on the property of the firm so as to be able to prevent it from parting with that property to whomsoever it chose. 2 Lindley on Part., 654, and cases cited.

4. A transfer by a firm to one partner bona fide and by him to a third person in a like manner for a valuable consideration passes both the legal and the equitable title to the property against the creditors of the firm. Belknap v. Cram, 11 Ohio 412.

5. When one of two partners retires from business, relinquishing to the other all his interest in the partnership property, the remaining partner acquires the same dominion as if it had ever been his own separate property. Smith v. Howard, 20 How. Pr., 121. Story on Part., § 358. Hollis v. Staley, 59 Tenn. 167.

L. M. Pemberton, for defendant in error.

1. The insolvency of the partnership changes the rule contended for by plaintiff. Till's Case, 3 Neb. 261. Phelps v. McNeely, 66 Mo. 554; S. C. 27 Am. Rep., 378. Tenny v. Johnson, 43 N.H. 144. Deveau v. Fowler, 2 Paige, 400. Topliff v. Vail, Harrington Ch. (Mich.), 340. Menash v. Whitewell, 52 N.Y. 146. Conroy v. Woods, 13 Cal. 626. In re Cook, 3 Biss., 122. Ransom v. Van Deventer, 41 Barb., 307. Black v. Bush, 7 B. Mon., 210. Collins v. Hood, 4 McLean, 186. Hubbard v. Curtis, 8 Iowa 1.

2. All debts due from the joint fund must first be discharged before any partner can appropriate any part of it to his own use, or to pay any of his private debts, and a creditor of one of the partners cannot claim any interest but such as belongs to his debtor, whether his claim be founded on a contract with a debtor, or on a seizure of the goods on execution or attachment. 2 Lindley on Part., 1055, note 2, and cases there cited. Pars. on Part., 353. Bowen v. Billings, 13 Neb. 443. In case at bar, the firm being insolvent, Jones had no interest in the firm property that he could turn over to pay his private debts.

OPINION

[15 Neb. 75] MAXWELL, J.

This is an action of replevin brought by the plaintiff against the defendant to recover certain goods...

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