dissenting. Article 2794 C. C. is in these words: “ The partnership property is liable to the creditors of the partnership in preference to those of the individual partner; but the share of any partner may in due course of law be seized and sold to satisfy his individual creditors subject to the debts of the partnership ; but the seizure, if legal, operates as a dissolution of the partnership.”
*110This Article appears to me to apply as well to particular as commercial partnerships. In the particular partnership, of course Van partnership creditor acts directly against the virile shares of each partner ; in the commercial partnership, against the partners in solido.
Applying the Article cited to the case before us, we find that the seizure made by the individual creditor of Pittman has not been made “ subject to the debts of the partnership,” as required. There may be debts due the firm, as well as debts due by the firm. If it be conceded that there are no debts due the partnership and that the seizure made in this case of one-half of the plantation, slaves, &c., was a seizure of all the effects belonging to the partner in the particular partnership, it does not yet show a compliance with the law, and is not the same thing as the seizure of one-half of those effects subject to the partnership debts.
In my opinion, there are two modes in which the seizure in this case might have been made: the one, to seize one undivided half of the partnership effects (according to the terms of the Article) subject to the debts of the partnership, and the other to seize the interest of the partner in the partnership, and then the purchaser of that interest could apply to the proper court for a liquidation of the partnership debts, and a partition of the surplus. Of these two modes of proceeding, the latter is more in conformity to the spirit of the authors. See Trop., Société, No. 865.
The partnership is looked upon as a fictitious or moral being entirely distinct from each individual partner. Smith v. McMicken, 3 An. 321, and authorities there cited; 5 An. 539, 6 An. 704, 11 An. 706.
In the language of the case of Smith v. McMicken, the partners “ are not the owners of the (partnership) property itself, but of the residue which may be left from the entire partnership property after the obligations of the partnership are discharged.”
If this be law, (and it seems too firmly established to be disputed,) then the execution is simply directed against the moral being, the partnership, to obtain from the same the effects, rights and credits in its hands belonging to the individual partner. And the proceeding in execution ought to be conducted as against any other third person having like effects belonging to the judgment debtor.
Now, if we allow the judgment creditor to seize and sell the undivided interest of one of the partners in a particular thing, we ignore the moral being of the partnership, and admit at once that the partner, objectively and passively considered, is the owner, as distinct from the partnership. We do precisely the same thing when we allow a seizure of. all the visible and tangible effects of the partnership. In the case before us, in order to maintain the seizure, we must admit, with reference to the creditors of the partnership, that Pittman is the owner of one undivided half of the plantation and slaves, and that the partnership, considered as a moral person, does not own anything. Eor if one-half could be seized for the benefit of the individual creditors of Pittman, and the other half for the benefit of the individual creditors (if any) of Barrow, the creditors of the • partnership would be without redress, and the purchaser would take the property free of all incumbrance. Eor if a legal sale can be made of the undivided interest of an individual partner in any or all the partnership effects, the preference given the partnership creditor is gone, because it does not appear to be one of those privileges which can be preserved by registry, and which follow the property into the hands of third persons acquiring the same.
*111It is proper to observe, that I have never understood the ease of Smith v. McMicken otherwise than as interpreted by my colleagues. I consider the rule adopted in that case a safe one, and that it is applicable to particular as well as commercial partnerships. I deduce from it these propositions :
1st. That with reference to the creditors of the partnership, and the individual creditors of each partner, the partnership is a fictitious and moral being, the owner of the partnership effects.
2d. That the individual creditor of any one of the partners cannot, as a consequence, seize the undivided interest of one of the partners in “ a particular asset” of the partnership, nor of the undivided interest of the partner in any specific number of effects of the partnership, although it may constitute the entire active means of the concern, because they do not belong to the individual partner, and
3d. That the only way to make a seizure to pay the debt of an individual partner is to seize his undivided interest in the partnership effects subject to the payment of the partnership debts, or, which is the same thing, to seize the undivided interest of the partner in the partnership, which would give the purchaser the residuum after the payment of the debts and liquidation of the partnership affairs.
Now the conclusions of my colleagues seem to coincide with one of the modes of seizure which I admit to be valid, and I should not have much hesitation in concurring, but the decree seems to me to fall short of the argument.
The Sheriff says nothing in reference to the partnership in his seizure. He simply seizes the one undivided half of certain tracts of land; the undivided half of the mules, carts and plantation implements, and the undivided half of the negroes, described by their names and ages.
The seizure forms a part of the record, and is the basis of the title of the purchaser at the Sheriff’s sale. The sale, when made, refers back to the seizure. The notice of sale and advertisements are never permitted to control the seizure nor do they properly form part of the Sheriff’s return.
An informal or illegal seizure cannot be enlarged or rendered valid by the advertisement.
Now, in the case before us, the seizure and notice of seizure do not indicate that the property was seized subject to the payment of the partnership debts, nor even that it was partnership property. Neither are the active debts of the partnership seized, if there are any ; there being no proof in the record on the subject of the active or passive debts.
The debtor who is bound in warranty is interested, that his property shall be seized in accordance with his rights in it, and he ought not to be subjected to subsequent actions in warranty, growing out of a sale of incumbered interests.
I think the judgment of the lower court ought to be affirmed. The plaintiffs allege that “ under a fi. fa. against I. B. Pittman, solely, the assets of said partnership could not be seized,” &c. The petition contains a prayer for general relief, and the evidence in my opinion makes out the plaintiffs’ case.
Oole, J., concurred in this opinion.