Pitts v. Spotts

• Decision Date: 25 April 1889
• Citation: 86 Va. 71,9 S.E. 501
• Parties: Pitts v. Spotts et al.
• Court: Virginia Supreme Court

9 S.E. 501

(86 Va. 71)

Pitts

v.Spotts et al.

Supreme Court of Appeals of Virginia.

April 25, 1889.

Judgment—Lien—Partnership—Appeal.

1. A judgment against partners for a firm liability is a lien against their individual real estate, and has preference over an unsecured debt of one of them in the administration of his assets after his decease.

2. Such a judgment, confessed in an action against both partners, first by one partner, and afterwards, during the same term, by the other, is valid, as against the latter; the cause of action not being merged by the rendition of the first judgment.

3. The judgment creditor having a lien, as well on the separate estate of the surviving, as on that of the deceased, partner, while the unsecured creditor mentioned has no other resource except the estate of the latter, there being no partnership assets, equity will marshal the assets in favor of the unsecured creditor, so as to require the judgment creditor to first exhaust the estate of the survivor before resorting to that of the deceased partner.

4. The deceased partner's land being worth less than $500, while the judgment is for more than that sum, an appeal by the judgment creditor may be taken to the supreme court of appeals from a decree giving the unsecured claim preference over the judgment in the proceeds of the land, as the "amount in controversy" is, as to the judgment creditor, the amount of the judgment.

Appeal from circuit court, King and Queen county.

Bill by John G. Spotts and John L. Gibson, merchants lately trading as partners under the firm name of Spotts & Gibson, against W. T. Haynes, sheriff of said county, and, as such, administrator, etc., of W. C. Gayle, deceased, and the widow and children of said Gayle, to subject the land of said intestate to the payment of his debts. John W.Pitts became a party thereto, and his claim, a judgment recovered against said Gayle and one Bowden, as partners, was allowed, but postponed to that of Spotts & Gibson, the complainants. A chancery cause of Parrish against said Bowden and others, the object of which was to subject the land of Bowden to the payment of liens thereon, was heard with this cause, and one decree rendered in both, from which said Pitts appeals.

H. R. Pollard, for appellant.

T. P. Bag-by and R. L. Henley, for appellees.

Lewis, P. The principal question in this case is whether the judgment of the appellant against Bowden & Gayle, late merchants and partners, on a partnership contract, is entitled to priority in the administration of the separate assets of Gayle's estate over the unsecured claim of the appellees, Spotts & Gibson, who are separate-creditors of the said Gayle. The commissioner to whom the cause was referred reported the judgment as the first lien on the real estate, but an exception to the report, taken by the appellees, was sustained by the decree complained of. We think the decree is in this particular erroneous. The appellant having obtained a lien by his judgment, and the appellees being only open-account creditors, he is entitled to the benefit of that lien, and ought not to be deprived of it. The case of Straus v. Kern good, 21 Grat. 584, is, upon this point, a de-cisive authority. It appears that the judgment was...