86 Miss. 782 | Miss. | 1905
delivered the opinion of the court.
Holmes Bros., a partnership composed of E. W. and T. B. Holmes, have been for many years,' and are now, merchants engaged in business at Aberdeen. In th© latter part of 1898, T. B. Holmes, for a recited consideration of $40 and love and affection, made a conveyance of a.lot in Aberdeen, of $500 in value, to his wife, Mary P. Holmes. This deed, however, did not become effective as to creditors until December 9, 1902, when it was filed for record. And on the 6th day of June, 1903, E. W. Holmes conveyed to his wife, Georgia E. Holanes, for a recited consideration of $10,000, a ti’act of thirty-two acres of land lying in the outskirts of Birmingham, Ala., and valued at
If there remained sufficient partnership assets to satisfy the firm debts, the members of the firm had a right to dispose of their individual property as they saw proper. The burden of proof was upon appellees to show insolvency, and fraud, and this they have not done. There is no proof that, when the deed to Mary Pi Holmes was filed for record, the firm was not able to meet all demands against it. Besides, the property conveyed to her was of a small value, and there is no evidence that tends to show that it was made with a fraudulent purpose. The proof shows that the firm property, when the bill was filed, was' worth $10,000; and it is equally as clear that by the conveyance of the Birmingham land the debt of Mrs. Holmes was paid,' and that she assumed to pay the debts due to FT. W. Holmes and the bank, and these debts were either paid or secured by her after this suit was brought, so as to relieve the firm.
• It is urged by appellees that there had been no acceptance by FT. W. Holmes and the bank, so as to make Mrs. Holmes liable to them, prior to the time the suit -was brought; but this
The bill prays a personal decree, and this was rendered in the court below against E. W. and T. B. Holmes; and under sec. 147 of our constitution, which provides, “Ho judgment or decree rendered in any chancery or circuit court in a civil cause shall be reversed or annulled on the ground of want of jurisdiction to render said judgment or decree from any error or mistake as to whether the cause in which it was rendered was of equity or common law jurisdiction,” the personal decree against E. W. and T. B. Holmes must be affirmed—Cazeneuve v. Curell, 70 Miss., 521 (13 South. Rep., 32); Goyer v. Wildberger, 71 Miss., 438 (15 South. Rep., 235)—and decree here against the sureties on their supersedeas bond.
The cost of this appeal to be taxed in equal parts against ap-pellees and 13. W. and T. JB. Holmes.
Owing to the illness of Chief Justice Whitfield, W. H. Potter, Esq., a member of the supreme court bar, was appointed and presided in this case in his place.