Clark v. Cushing

Opinion

The interest of a partner is subject to execution, levy, and sale.

(Jones v. Thompson, 12 Cal. 191.) So is the interest of one joint tenant in property held under a joint tenancy. ( Wald-man v. Broder, 10 Cal. 378.) And of one co-owner in property held by tenants in common.

(Bernal v. Hovious, 17 Cal. 541.) And where the Sheriff levies upon the interest of one of several owners in property he has the right—if necessary to make the levy effective—to reduce all the property to possession; and the fact that he does so is not proof of a conversion. ( White v. Jones, 38 Ill.

169; Atwood v. Meredith, 37 Miss.

635; Pitman v. Robecheau, 14 La. An. 108;

Davis v. White, 1 Houston, Del. 228 ;

Waldman v. Broder, ante.)

E. J. Lewis, for the Respondent.

By the Court :

The motion for a new trial should have been granted. It clearly appears from the evidence that the plaintiffs and Pierce were partners in the farming transaction, and that as such partners they became the owners of the growing crop. It was the duty of the Sheriff to levy on the growing crop to satisfy the execution against Pierce, one of the partners; and for that purpose, and in order to effect a sale of the interest of Pierce, he was authorized to take possession of the property. The cvi *619 dence shows that he did so take possession of the property, and that he, in fact, only sold that which was subject to sale under the execution—to wit, the' interest of Pierce. The purchaser at the Sheriff’s sale acquired only that interest. The interest of the plaintiffs in the property was not impaired or converted by such seizure and sale by the Sheriff.

Judgment and order reversed, and cause remanded for a new trial. Remittitur forthwith.