Chandler v. Johnston Lumber Co.

• Decision Date: 08 December 1910
• Parties: CHANDLER v. JOHNSTON LUMBER CO.
• Court: Alabama Supreme Court

53 So. 993

169 Ala. 495

CHANDLER v. JOHNSTON LUMBER CO.

Supreme Court of Alabama

December 8, 1910

Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.

Proceedings by William Chandler under an execution against T. B. Cohen and another, in which the Johnston Lumber Company claimed the property levied on under the execution. From a judgment for claimant, the judgment creditor appeals. Affirmed.

George D. Motley and H. D. McCarty, for appellant.

Blackwell & Keith, for appellee.

MAYFIELD J.

This was a claim suit for a boiler and engine. The property was levied upon under an execution against T. B. Cohen and J. W Johnston. The property was claimed by appellee, Johnston Lumber Company, a corporation. The usual and proper issue on the trial of such suits was made up and tried by the judge of the city court of Anniston, without the intervention of a jury. The trial resulted in judgment for the claimant, from which this appeal is prosecuted.

The evidence was substantially without dispute, and showed the following state of facts: That the property in question once belonged to a partnership composed of J. W. Johnston and T B. Cohen; that this partnership dissolved in November, 1906 by mutual consent, and that most all of the partnership property, except this in question, was divided between the partners; that in February, 1907. Johnston bought Cohen's interest in the engine and boiler and agreed to pay the firm's debts, as a part of the consideration; that about the time of the sale of the engine and boiler to Johnston the Johnston Lumber Company was organized, and Johnston sold the boiler and engine to the new corporation, in part payment of his subscription for stock in the corporation. The judgment against Cohen and Johnston, upon which the execution in question was issued, was obtained on the 6th day of April 1908. Execution thereon issued April 24, 1908, and alias and pluries writs issued later. The levy was made May 28, 1908. While the complaint and the facts would have authorized judgment and execution against the partnership, no such judgment was rendered, but one against the partners, individually, only.

The law does not prevent solvent partnerships from dissolving and dividing the property among the partners, if this is done in good faith and with no attempt or purpose to defraud the partnership creditors. This is not such a diverting of the partnership property to the payment of individual debts, as to render the transaction fraudulent per se as against the partnership creditors. There must be fraud, to render the transaction void.

There was no evidence that the partnership or any member of the firm was...