140 Ind. 529 | Ind. | 1895
— In the complaint filed by appellant in . this case, it is alleged that on the 14th day of September, 1891, in a certain action in the Boone Circuit Court, wherein Nathan Perrill was plaintiff, and the administrator and heirs of Francis M. Harrison, deceased, were defendants, the appellant was, by the judgment of the court, appointed receiver of the late firm of Harrison & Perrill, which firm had been composed of the said Francis M. Harrison and Nathan Perrill, and had been engaged in the milling business, and the' buying and
A demurrer, to this complaint by John M. Breedlove, one of the appellees, was overruled; thereupon the said
Other matters are brought into the record and discussed in the briefs. We think, however, that the only question for our consideration is whether the milling property was partnership property and liable to be made assets for the payment of the partnership debts.
As to the right of the appellant, as receiver, to take possession of all partnership property and to turn it into assets for the payment of partnership debts, those were questions determined by the court in the appointment of the receiver, and can not be reviewed in this proceeding.
So, also, whether the firm was indebted to the Farmers’ Bank in the sum of $3,400, or any other sum, and whether such indebtedness was secured by collateral deposited by Francis M. Harrison; and whether the firm
Because Perrill made a mortgage of his undivided interest in the mill property, it does not follow, necessarily, that the foreclosure of that mortgage and the purchase of the property at sheriff’s sale, gave to the mortgagee absolute title -to the property. If the mill was partnership property, the partnership debts must first be paid out of the property, and afterwards the individual partners’ debts must be paid out of their respective shares of what remains.
We think the evidence shows, beyond question, that the mill was partnership property, being indeed almost the sole property of the firm. The business had been conducted as a partnership for many years previous to the time when Perrill bought an undivided one-half interest in the property.
The taxes on the property were in the firm name. Each partner contributed one-half of the money that went into the business. The firm had sole possession and use of the mill and milling business for the purposes of said firm and business. The firm did business through the Farmers’ Bank, where a firm account was kept. Repairs were made upon the building at the expense of the firm. A roller process was put into the mill and paid for out of firm money. Indeed the mill and milling property, including the lot on which the mill stood, quite as much as the grain bought and sold or the flour manufactured, or the money at the bank, were all used as part and parcel of the partnership milling business. The real estate, and the mill upon it, however acquired by the parties, were used as firm property, and necessa
The judgment is reversed, with instructions to grant a new trial.