70 Miss. 219 | Miss. | 1892
delivered the opinion of the court.
The evidence abundantly establishes the fact that Whitten sold to his partner, Davis, his interest in the firm of Davis & Co., and accepted in payment therefor the note of Davis
We are unable to appreciate the process of reasoning by which it is sought to be proved that these debts, certainly and confessedly due from Davis to Whitten, became simulated and fraudulent, simply because Davis, by his assignment, attempted to provide for their payment.
It may be true that Whitten is liable to those who gave credit to the firm of which he had been a member, alter his withdrawal from it, beca'use he failed to give notice of its dissolution. But this would not operate to discharge the debts Davis owed Whitten, nor re-create the partnership between them. .
The good faith of the sale by Whitten to Davis is not denied. That transaction is not assailed; but counsel insist that if Whitten was bound to complainants for the debts contracted by Davis after the dissolution of the firm, it is because, as to them,'he is still to be treated as a partner, and that, if, as to complainants, Whitten is still a partner, the assignment has devoted partnership assets to the payment of a debt due one of the partners.
The fallacy of the argument is in assuming that the creditors of Davis and Whitten (if Whitten was liable) or Whitten, had some interest in the property of Davis, because of Whitten’s liability. If mere liability to third persons as a partner created a partnership inter sese, the argument would be sound. But one is not a partner simply because he is bound to third persons as such.
The property assigned was that of Davis, and he owed the debts preferred to Whitten or his assignee, and the assignment was properly declared valid by the chancellor.
Other grounds of attack are argued, but, by the pleadings, the issue was confined to the question of the genuineness of
Affirmed.