Sheehy v. Graves

Citations

• 58 Cal. 449
• 1881 Cal. LEXIS 253

Syllabus

<p>Execution—Partnership Property—Sheripe—Chattel Mortgage.—F. and S. were partners in a, crop, and the latter mortgaged Ms interest, and the mortgagee took possession of the whole crop. Afterwards, in an action by the plaintiff against F. & S., an attachment was levied upon the crop by the defendant as Sheriff. In an action against the defendant for failure to make the money on an execution out of the property attached, the Court found that it was agreed between the plaintiff, the defendant, and the mortgagee, that the latter should thresh and sack the grain, and that whatever should belong to the “S.” interest should be delivered to the defendant upon the plaintiff’s attachment. The mortgagee threshed and sold the grain, and paid to the defendant three hundred and nineteen dollars, as the part belonging to S., and tMs was applied on the execution, leaving a balance of five hundred and eighty-two dollars and fifty cents. Upon an appeal from a judgment for the defendant,</p> <p>Held, That under the facts found, it was the duty of the Sheriff' to take possession of the S. interest after it was threshed and sacked, and to sell it in the manner required by law; and that he had no right to sell at private sale, or authorize another to do so; and that therefore the decision was against law, and the judgment should he reversed on the findings.</p> <p>Held, further, That the evidence did not sustain the findings that the plaintiff agreed with the defendant and mortgagee as therein stated. Also, that it was the duty of the Sheriff, having in his hand the execution against both partners, to take possession of the whole crop.</p>