Murray v. Mumford

6 Cow. 441

• Court: New York Supreme Court
• Decided: October 15, 1826
• Status: Published

Opinion

Curia, per

Sutherland, J.

A dissolution of a partners}iip does not, I apprehend, ipso facto, destroy the joint tenancy of the partners in the partnership property, and create a tenant'} in common. They are still partners, for the purpose of settling the partnership concerns; and until that is effected. For that purpose, the partnership may be said still to continue, with all the incidents belonging to that relation. (11 Ves. 5. 16 Ves. 57. 1 Swanston, 480, 507, note a. 15 Ves. 227.) In Wood v. Braddick. (1 Taunt. 104,) Heath, J. says, “It is a very clearprop-osition, that when a partnership is dissolved, it is not dissolved with regard to things past, but only with regard to things future.”

Suppose, wThich is alleged to be the case, that at the time of Mumford,s death, there were still debts due to and from the firm; could the representatives of Mumford sue, orbe sued with the surviving partner, for those debts ? Most clearly not. The action must be brought by and against the surviving partner alone. The case of Smith and others, assignees, &c. v. Stokes, (1 East, 363,) relied on by the defendant’s counsel, is entirely different from this, and depending upon a different principle. That was an action of trover brought by the plaintiffs, as assignees of one Richardson, a bankrupt. Richardson and one Strickland were partners in trade. On the 29th of January, 1800, Richardson committed an act of bankruptcy. On the 31 si of the same month, the goods for which the action was brought, being partnership property, were received by the defendant, Stokes. On the 8th of February', a commission of bankruptcy issued against Richardson. On the 14th of the same month, Strickland, the other partner, died, making Stokes, the defendant, his executor. On the 1th of March, the commissioners, under the commission of bankrupt against Richardson, executed an assignment of his effects to the plaintiffs, who brought the action against the executor of the deceased partner. It was held that the action would not lie : that though the assignment under the commission was not made until after the death of Strickland; yet, when made, it took ef-feci by relation, from the time of the aet of bankruptcy of Richardson, which was before^ Strickland's death: that the assignees, of course, became tenants in common by relation from that time with Strickland, in his life time, and, , . . . , , . . , , , since his decease, with his representatives, of whom the defendant was one. Then the familiar principle, that one tenant in common cannot, (except under special circumstances,) sustain trover against another, applied. The partnership was dissolved by the act of bankruptcy, and the assignees became not partners, but tenants in common with the other partner, in the partnership property. It was the same as if the interest of the bankrupt partner had been sold upon execution, and purchased by the plaintiffs., The sale would have produced a termination of the partnership as to him, and the vendee would not have become a partner, but a tenant in common with the other partner. ( Sayer v. Bennet, 1 Mont, on Partn. 17, notes. Gow on Partn. 285.)

This case, therefore, stands precisely as it would have done, if the partnership of Murray and Mumford had continued until Mumford's death ; and it is unnecessary to cite authorities, to show that, in such a case, the surviving partner is entitled to all the choses in action, and other evidences of debt belonging to the firm. They must be collected in his name ; and he is entitled to the exclusive custody and control of them. The books of account are incidents to the debts or choses in action ; and whoever is entitled to the one is, of course, to the other. The right of action, in relation to all partnership demands, is transferred to the surviving partner. But he is liable to account to the representatives of the deceased partner, for his share of the partnership property. (Gow, 157. 7 Mass. Rep. 257. 1 Dall. 248. 2 Dall. 65. 5 Sergt. & Rawle, 86. 1 Ld. Raym. 340. John. Dig. Partnership, iv. Watson on Partn. 364. Salk. 444.)

The nonsuit must, therefore, be set aside ; and a new núal be granted.

New trial granted-