[Crawford et al. v. Kirksey et al.] therefor since it passed under the control of Crawford, the complainants are entitled to. The decree of the Chancery Court is reversed, and this court, proceeding to render the decree which that court should have rendered, doth order and decree, that the said land, known as the Gordon land, is subject and liable to the claim of complainants; and the register of said court, after giving the notice required in sheriff's sales of lands, will sell the same before the door of the court-house in Greene county, on the first Monday of a month, to the highest bidder for cash, make proper conveyance to the purchaser, and put him in possession. Of the proceeds, he will pay the costs hereinafter adjudged against the complainants; and any balance he will report to the Chancery Court, for directions as to its application. He will report his sale to the Chancery Court for confirmation. And all title held or claimed in and to said lands, by any of the defendants to this suit, is divested out of them, and vested in such purchaser, when the sale shall have been confirmed. It is referred to the register to take proof, and report to the Chancery Court a proper rent of said Gordon land, for each year since the same passed under the control of said Crawford, charging interest upon each annual renting until the coming in of the report, but allowing him credit for all taxes paid; and to this end he is allowed to use the proofs on file, to re-examine witnesses heretofore examined, and to hear any legal testimony that may be offered. Let the costs of this appeal in this court, and in the court below, be paid by the appellee; the costs in the Chancery Court to be taxed by the register, exclusive of costs of appeal, to be paid, four-fifths by the complainants, and one-fifth by James Crawford; the costs of executing the reference hereinabove ordered, to be paid by James Crawford; and the bill in this cause, so far as it seeks relief other than that hereinabove granted, is hereby dismissed. All other questions are reserved for decision by the chancellor. [Giovanni v. First National Bank of Montgomery.] Giovanni v. First National Bank of Action for Damages against Plaintiffs in Attachment, for Sale 1. Claim of exemption in partnership property.-Partners can not, during the existence of the partnership, claim an individual exemption in partnership property, when taken under legal process for partnership debts. (Overruling Howard v. Jones & Starke, 50 Ala. 67; Dunklin v. Kimball, 50 Ala. 251; and Giovanni v. First National Bank, 51 Ala. 177, so far as it follows those cases.) APPEAL from the City Court of Montgomery. This action was brought by the appellant to recover damages for the seizure and sale by the sheriff, at the instance of the defendant as plaintiff in attachment, of certain personal property which the plaintiff claimed as exempt from seizure and sale under legal process. The property belonged to Giovanni & Co., a partnership doing business in the city of Montgomery, composed of the plaintiff in this suit and one Guily; and it was seized by the sheriff on the 7th January, 1873, under an attachment for rent at the suit of the defendant. Each of the partners claimed an exemption in one half of the property, which was less than one thousand dollars; but the sheriff, acting under the instructions of the attaching creditor, disregarded the claim of exemption, and sold the property. The partners brought a joint action for damages. against the attaching creditors; but a demurrer was sustained to the complaint, on the ground that there was a misjoinder of plaintiffs; and the judgment was affirmed by this court on appeal, as shown by the report of the case, Giovanni et al. v. First National Bank, 51 Ala. 176-9. This action was brought after the decision of that case, and was commenced on the 19th January, 1875. The complaint contained a count in trover, and a special count in case; to which the defendant pleaded not guilty. On the evidence adduced, the court charged the jury, "that if the property levied on was partnership property, and the debt on which the attachment issued was a partnership debt, and there had been no settlement of the partnership, and no division of its property or assets, or any part thereof, then the plaintiff could not claim any part of said property as exempt: that 55 3051 98 356 [Giovanni v. First National Bank of Montgomery.] one partner can not claim an undivided portion of partnership property, as exempt from levy and sale to enforce the collection of a partnership debt." This charge, to which the plaintiff excepted, is the only matter now assigned as error. WINTER & WINTER,* for appellant.—The right of an individual partner to claim an exemption in partnership property, as against partnership debts, is settled by several decisions of this court.-Howard v. Jones & Starke, 50 Ala. 47; Dunklin v. Kimball, 50 Ala. 251; Giovanni v. National Bank, 51 Ala. 179. These decisions are founded on correct legal principles, and are sustained by numerous adjudications in other States. All exemption laws are based on a principle of public policy, which declares that it is more important that the means of subsistence shall be reserved to the debtor and his family, than that his creditors shall be paid; and such laws are always liberally construed in favor of the debtor.Favers v. Glass, 22 Ala. 624, and cases there cited; Webb v. Edwards, 46 Ala. 17; Ross v. Hannah, 18 Ala. 127; Stewart v. Brown, 37 N. Y. (10 Tiff.) 350; Gilman v. Williams, 7 Wisc. 328; Bevan v. Hayden, 13 Iowa, 122; Brooks v. Nichols, 17 Mich. 38. Partnership creditors, as such, have no lien on the partnership property for the payment of their debts.Parsons on Partnership, 502, note 7, citing numerous authorities; Story on Partnership, 509-10; Clements v. Foster, 3 Ired. Eq. 213; Reese & Heylin v. Bradford, 13 Ala. 846. In the absence of such lien by creditors, the partners have an undoubted right to sell and dispose of the partnership assets as they please, or to divide the assets among themselves, leaving the partnership debts unpaid.-Ex parte Ruffin, 6 Vesey, 119-26; In re Downing, 1 Dillon, 33; 3 Kent, 63; Story's Equity, 676; Story on Partnership, $$ 362-63; Emanuel v. Bird, 19 Ala. 596; Mayer v. Clark, 40 Ala. 259; 14 Vesey, 447; 15 Vesey, 521; 3 Madd. 229. There is a broad distinction, between the right of each partner to claim an exemption out of partnership assets as against his copartners, and his right to do so, with the consent of his copartners, as against the partnership creditors; and the failure to observe this distinction has, to a great extent, caused the conflict in the authorities.-Burns v. Harris, 67 N. C. 140; Gilman v. Williams, 7 Wisc. 229; Radcliff v. Wood, 25 Barb. 52; Stewart v. Brown, 37 N. Y. 350; 3 Neb. 261; In re Rupp, 4 Nat. Bank. Register, 95; In re Parks, 9 Ib. 440; In re Richardson & Co., 11 Ib. 114. In addition to these authorities, A printed argument on the question was also submitted by D, S. Troy, who was not of counsel in this case.-REP. [Giovanni v. First National Bank of Montgomery.] the right of exemption by partners has been sustained by the highest courts in Vermont, Iowa, and Arkansas.-McCary v. Bixby, 36 Vermont, 254; Thom v. Thom, 14 Iowa, 48; Greenwood v. Maddox, 27 Ark. 648. D. CLOPTON, contra.-Partnership property is not the separate property of either partner. Neither has any exclusive interest in it. The interest of each partner is his portion of the surplus remaining after the partnership debts are paid; and any claim of exemption can only extend to this surplus, when ascertained, after a settlement of the partnership, and the payment of its debts.-Pond v. Kimball, 101 Mass. 105; Burns v. Harris, 67 N. C. 140; Wright v. Pratt, 31 Wisc. 104; In re Blodgett & Sanford, 10 Nat. Bank. Register, 145; In re Handlin & Vinney, 12 Ib. 49; In re Stewart & Newton, 13 Ib. 295. BRICKELL, C. J.-In Howard v. Jones & Starke, 50 Ala. 67, it was decided, that money or property, belonging to a partnership, may be claimed by the partners individually, as exempt from levy and sale under process against them. The case was an action against partners, for the recovery of a partnership debt, and a garnishment against one having in his custody partnership funds, exemption of which the partners claimed. This decision controlled that of Dunklin v. Kimball, Ib. 251, in which it was held, that two members of an insolvent partnership, having, without the consent or acquiescence of a third, made an assignment of the partnership effects, for the payment of partnership debts, and the assignee having by sale converted the effects into money, the third partner could claim and recover from him one thousand dollars of the proceeds of sale, as exempt from liability for debts, or, if the proceeds of sale would not make a sum sufficient for a similar exemption to each of the partners, then onethird of such proceeds. The subsequent case of Giovanni et al. v. First National Bank, 51 Ala. 177, holds, that if partnership property is levied on, and each partner asserts a claim of exemption to his interest therein, their joint interest in the property claimed is thereby severed, and they can not maintain a joint action for its seizure and sale. The present appellant is one of the partners suing jointly in the latter case, and now suing alone, for the seizure and sale of the share of the partnership property claimed by him as exempt. The appellant and one Guily were partners, equally interested in carrying on business as confectioners in the city of Montgomery. They became indebted to the appellee, for [Giovanni v. First National Bank of Montgomery.] rent of a store-house in which the business was conducted; and while the partnership was continuing, without a severance of the interest of the partners in the partnership property, an attachment was issued for the recovery of the rent, and was levied on the stock in trade. After the levy of the attachment, the appellant and his copartner jointly made affidavit, claiming that one-half of the stock in trade, being of less value than one thousand dollars, should be exempt to each of them. The affidavit was presented to the sheriff, and a release of the levy and restoration of the goods demanded. The sheriff, acting under the instructions of the appellee, refused, and made sale of the goods. This action is now brought to recover damages for the seizure and sale of one-half of the goods, so claimed by the appellant. The court, in effect, charged the jury, that the appellant was not entitled to recover. We are thus met again by the precise question presented in Howard v. Jones & Starke, supra, which, limiting it to the precise facts found in the record, may be thus stated: A partnership continuing, the property of the partnership not being divided, or the interests of the partners severed, can the partners claim a separate, individual exemption from the property, as against process for a partnership debt, which may be levied on it? My own opinion on the general question, whether partnership property is embraced within the statutory or constitutional exemption, was expressed in Dunklin v. Kimball, supra. Subsequent reflection and examination have strengthened and confirmed it. The constitutional provision is, "The personal property of any resident of this State, to the value of one thousand dollars, to be selected by such resident, shall be exempted from sale on execution, or other final process of any court, issued for the collection of any debt contracted after the adoption of this constitution." The statute, though enlarging the exemption, by the enumeration of specific articles of personal property as exempt, in addition to the constitutional exemption, does not vary or change the nature of the ownership requisite to authorize the assertion of the right. Ownership is an indispensable element of the right to exemption. It is property which may be taken, and rightfully taken, under process against the resident debtor, which the constitution and the statute confer on him the unqualified privilege and right to select and retain. The purpose is, to confer on the resident debtor a substantial benefit, the enjoyment of which shall rest only in his volition, and of which he can not be deprived by another. The right is positive, unqualified, of equal diguity with other rights of property protected by the constitution from legislative or judicial invasion or diminu |