OVERHOLT'S APPEAL.

[12 PENNSYLVANIA STATE, 222.]

IT IS COMPETENT TO PROVE, ON DISTRIBUTION OF PROCEEDS OF an Exe. CUTION SALE, that the property sold was partnership property, and that a mere joint judgment was given for a partnership debt.

APPLICATION by appellant, asking that an auditor's report be referred back, or that the court direct an issue to enable appellant to prove that the estate of Blocher, Shoemaker & Taylor, in certain factory property sold on execution, was purchased by them as partners for partnership purposes, and that his judgment was given for a partnership debt. The appellant's judgment had been confessed by the three defendants on an instrument for the payment of money, while the judgments of the appellees were separate judgments against Shoemaker. The appellant claimed that his judgment was entitled to preference over the separate judgments of the appellees, and made an affidavit, the substance of which appears in the opinion. An auditor had been appointed to distribute the proceeds of the execution sale, and his report, referred to above, proposed two plans of distribution, one on the assumption that the land had been held by the defendants as partners; the other on the assumption that it had been held by them as tenants in common. The application was refused; and the court confirmed the latter plan of distribution, in language appearing in the opinion.

Patterson and Howell, for the appellant.

Veech, contra.

By Court, ROGERS, J. Under the act of 1806 respecting executions, if any fact connected with the distribution of the estate shall be in dispute, the court shall, at the request in writing of any person interested, direct an issue to try the same. This act is ruled to be imperative on the court, and a refusal error, in Bichal v. Rank, 5 Watts, 140; Reigari's Appeal, 7 Watts & S. 267; Trimble's Appeal, 6 Watts, 133; and in Huling v. Drexell, 7 Id. 126. But it is said that it is not the duty of the court in all cases to grant an issue: that the act was not intended to enable a litigious party to demand an issue under all circumstances, and thus take his chance before a jury when there is nothing in the case to call for its intervention. And this is ruled in Dougherty's Estate, 9 Watts & S. 192, 193 [42 Am. Dec. 326]; and in Dickerson and Haven's Appeal, 7 Pa. St. 255. If this be a case of that description that there were no facts to submit, or that the determination of

the facts would not alter the result, the refusal to direct one issue worked no injury; and consequently, as has been repeatedly ruled, we would not reverse the proceedings. The controversy in this case is between separate and partnerships creditors, as to the distribution of proceeds arising out of the sale of property alleged to be held in partnership. In the distribution of the money two facts are material. Was the judgment of the appellant a judgment against the persons named in their individual or partnership characters, and was the property sold partnership property? In view of these facts, which are undoubtedly material in their distribution, the appellant filed an affidavit, setting forth that the factory property at New Haven, sold by the sheriff as the property of Blocher, Shoemaker & Taylor, the proceeds of which are now the subject of distribution, was purchased by Blocher, Shoemaker & Taylor, as partnership property, and for the purpose of carrying on business by them as partners for the manufacture of woolen goods, and that after the purchase aforesaid the defendant knows that they held it as partnership property. The appellees contend that the affidavit does not allege that his debt was a partnership debt, and consequently the only issue which the jury would have to try would be whether or not the property sold was partnership property, and that this would have left the question whether Overholt should be preferred over other separate creditors as undetermined as before, and consequently would have no effect in changing the manner of distribution. That the affidavit in this particular is defective must be conceded; and if the case rested here, there would be no cause for reversal, as no injury was done the appellant. But that the request was not confined to an issue to try whether the property sold was partnership property, would seem to be pretty plain. On the thirty-first of December, 1847, we found this entry signed by the learned judge who heard the case. The counsel for H. D. Overholt ask the court to refer this report back to the auditor, or to direct an issue to enable him to prove that the property sold was purchased by the defendants as partners for partnership purposes, as is stated in the affidavit of H. D. Overholt and in his application for an issue this day filed, and that the judgment number 90, September term, 1844, was given for a partnership debt. And what renders it certain that the application for an issue was intended for a double purpose, is that the court declined to grant the application because it was believed that the distribution must be made to the judgments as they appear on the

record; that their character can not be altered by parol proof, and the distribution will be the same in the opinion of the court, whether the defendants held the property as tenants in common or as partners: the judgments all appear upon the record as of the same character as ordinary judgments against the defendants." It is perfectly plain the court understood the application as a demand of an issue to try whether the judgment number 90, September term, 1844 (the Overholt judgment), was given for a partnership debt. Without this it is impossible to understand the reason assigned for refusing to grant the issue and confirming the distribution made. With that explanation the remark of the judge is perfectly intelligible, and if right in his idea that the distribution must be made to the judgments as they appear on the record, and that their character can not be altered by parol proof, there would be nothing wrong in refusing to direct an issue. The issue could produce no possible beneficial effect to the appellant, and of course there would be nothing of which he could complain. But that the court was mistaken in that view of the case would seem to be plain on the authorities cited. Thus, where one of two partners gives bond for the payment of borrowed money; the other witnesses it; the money is entered in the cash-book of the partnership; a joint commission taken out; the obligee is entitled to be admitted as a creditor: Ex parte Gilbert Brown, cited 1 Atk. 225. So when money is raised for partnership purposes by bills drawn by one of the firm, the person discounting them can sustain his claim against the joint estate for the money received by the firm: Bradley v. Millar, 1 Rose, 273; Ex parte Langston, Id. 27; Cary on Partnership, 90. The object of the application is for liberty to show that the bond was given by defendants as partners and for a partnership debt. We see nothing in the proposal contradicting the judgment, but a mere explanation. A firm may exist, as is correctly said, and often does, without being designated by any name, and in bringing suit against a firm of that kind it is sufficient to designate the names of the parties, as in this case, and it is unnecessary to allege the existence of a partnership firm. In Davis v. Abbott, 2 McLean, 29, it was decided that in an action against the maker of a note signed A. and B., it is unnecessary to allege a partnership between the makers. It is only, as is ruled in Palmer v. Stephens, 1 Denio, 471, and Bank of Rochester v. Monteath, Id. 402 [43 Am. Dec. 681], when partners have a partnership name, that they will be

bound only by that name. For the reasons given, we are of opinion that there was error in refusing to direct an issue.

Proceedings reversed and remitted, with directions to award an issue.

REAL ESTATE PURCHASED BY FIRM AS PARTNERSHIP PROPERTY is liable to the payment of partnership debts: Divine v. Mitchum, 41 Am. Dec. 241; but see Wheatley's Heirs v. Calhoun, 37 Id. 654, and cases in note; and judgments against the firm for partnership debts are payable out of the proceeds of a sheriff's sale, in preference to judgments against the partners individually: Erwin's Appeal, 39 Pa. St. 538; Abbott's Appeal, 50 Id. 238; both citing the principal case. Partnership property must first be applied to payment of partnership debts: Dob v. Halsey, 8 Am. Dec. 293; Morgun v. His Creditors, 20 Id. 262; Doner v. Stauffer, 21 Id. 370; Bowden v. Schatzell, 23 Id. 170; Wilder v. Keeler, 23 Id. 781; Egberts v. Wood, 24 Id. 236; Grosvenor v. Austin's Adm'rs, 25 Id. 743, and note; Morrison v. Blodgett, 29 Id. 653; Payne v. Matthews, Id. 739; Dyer v. Clark, 39 Id. 697; Ladd v. Griswold, 46 Id. 443; Buchan v. Sumner, 47 Id. 305, and note; but see Reed v. Shepardson, 19 Id. 697.

THE PRINCIPAL CASE IS FURTHER CITED in Rice's Appeal, 79 Pa. St. 182, on the question of distribution of a fund in court; and in Souder's Appeal, 57 Id. 503, on the point that an issue under the act of 1836 is demandable of right, at any time before the decree, to try certain facts arising on the distri. bution of money from a sheriff's sale.

MCMAHON v. SLOAN.

[12 PENNSYLVANIA STATE, 229.]

PURCHASER OF PERSONAL PROPERTY ACQUIRES NO BETTER TITLE, in general, than that of his vendor.

ACTS OF OWNERSHIP BY POSSESSOR OF CHATTEL, INCONSISTENT WITH ANOTHER'S OWNERSHIP, must be brought to the knowledge of the true owner to divest him of title.

DECLARATIONS MADE BY OWNER OF CHATTEL, INCONSISTENT WITH HIS OWNERSHIP, WILL NOT DIVEST HIM OF TITLE, unless acted upon by the purchaser.

TROVER for a horse. The evidence showed that the horse belonged to the plaintiff, by whom it had been loaned to his son, to be used on a neighboring farm. The son used the horse, and spoke of it as his own, and it was generally so considered by the neighbors. He had also once offered to sell or barter it. The plaintiff had several times casually spoken of it as belonging to his son, and had once denied his own ownership of it. The son sold the horse to the defendant, and this action was brought by the father, claiming ownership. The question of original ownership was left to the jury, under instruction that

unless the declarations of the father induced the defendant to purchase, the plaintiff, if in fact the owner, might recover. Purviance and Sullivan, for the plaintiff in error.

Smith, contra.

By Court, BELL, J. It is said to be a fundamental principle of our law of personal property, that no man can be divested of it without his own consent; and consequently, even an honest purchaser, under a defective title, can not resist the claim of the true proprietor. The maxim that "no one can transfer to another a better title than he has himself" obtains, in the civil as well as the common law: Pothier, Traité du Contrat du Vente, 1, n. 7; Ersk. Inst. 418; and hence it is now recognized everywhere in civilized Europe, for "a sale ex vi termini imports nothing more than that a bona fide purchaser succeeds only to the rights of the vendor:" 2 Kent's Com. 324; Saltus v. Everett, 20 Wend. 275 [32 Am. Dec. 541]. In England, an exception is acknowledged in favor of sales effected in market overt; but, as in this country we have not adopted their notion of markets overt, every transfer of chattels is with us to be considered in reference to the general law I have stated. This doctrine was anxiously discussed and considered in the leading case of Lickbarrow v. Mason, by the various courts through which it passed: 2 T. R. 683; S. C., 1 H. Black. 357; S. C., 5 T. R. 367; and though it was finally established as an exception, under the qualified negotiability of bills of lading, the concession was everywhere made that, in the words of Lord Loughborough, "mere possession, without a just title, gives no property, and the person to whom such possession is transferred by delivery must take the hazard of the title of its author." In accordance with this principle, it was held in Wilkinson v. King, 2 Camp. 335, and Loeschman v. Machin, 2 Stark. 311, that if a bailee for a special purpose, pass the goods to another in contravention of that purpose, the true owner may assert his property by action, though the transfer be a bona fide purchase, without notice. Going perhaps a step further, it was held in Hoare v. Parker, 2 T. R. 376, that a pledge of plate, by one having a life interest therein, did not, after the death of the pledgor, bind the remainderman, who was permitted to recover the goods pawned without repayment of the money advanced upon them by the pawnee, though the latter had no notice of the settlement. The case was thought to be a hard one, but the court observed: "This point is clearly settled, and the law must remain as it is, until