151 Ind. 422 | Ind. | 1898
The John Y. Farwell Company, the Durand & Kasper Company, the Havens Geddes Company, and Selz, Schwab & Company, being four several
The conclusion of law upon these facts is to the effect-that the plaintiffs cannot recover, and should take nothing by their suit; It is contended that the conclusion of law is wrong, first, at least, as to the assets of the firm of Nussbaum, Mayer & Company, because there was no consideration for the transfer of its assets to Nussbaum & Mayer by the retiring partner, Speyer, and hence it is contended that said firm could not mortgage them.
Assuming, without deciding, that the want of a consideration for the transfer, by Henry M. Speyer to Nussbaum & Mayer, rendered the transfer- void, and the mortgage of said assets void also, it is sufficient to
But the principal ground on which it is contended that the conclusion of law is wrong is that the mortgage of the partnership property, and the assignment of the notes and accounts of the firm of Nussbaum, Mayer & Company, haying been made to secure certain preferred creditors of both firms for pre-existing debts, was not valid as against the creditors of Nussbaum, Mayer & Company.
Appellant contends that the creditors of the latter firm had an equitable lien on all the1 assets of that firm for the payment of their debts. It is conceded that this lien or preference must be worked out through the liens of the partners, to compel the application of the partnership property and assets to the payment of the partnership debts. Fisher v. Syfers, 109 Ind. 514, 516; Elliott v. Pontius, 136 Ind. 641.
As soon as the property of the firm of Nussbaum, Mayer & Company was sold to the firm of Nussbaum & Mayer, and the other firm was dissolved, its property became the property of the firm of Nussbaum & Mayer, and that firm could apply such property to the payment of its debts, the same as if it had never been the property of the dissolved partnership, unless the creditors of the dissolved firm had a lien on the same for the satisfaction of their debts. Trentman v. Swartzell, 85 Ind. 443, 447. Whether they did have such a lien is the controlling question in this case.
It is well established in this, court, and is the uniform judicial opinion everywhere, that such lien may be waived or parted with by the partners; and when
Appellant, however, contends that this court has never decided the question. But it has frequently held in just such cases that the lien of the partners is waived and gone, even though the transaction was accompanied by a contract to pay the indebtedness of the firm. Trentman v. Swartzell, supra; Goudy v. Werbe, supra; Purple v. Farrington, supra. The finding of facts is silent as to any fraudulent intent in the transaction. The plaintiffs had charged that the sale, transfer, and mortgage were made with- the intent to defraud the creditors of the dissolved firm. They had the burden of that issue and the failure to find such fraudulent intent is equivalent to a finding that there was no fraudulent intent. As was said in Purple v. Farrington, supra: “Where, however, the partners have the possession and control of their owfi property, they have the right to make any honest disposition of it they see fit; each has the-right to waive his equitable lien, and together they may sell, assign or mortgage the property of the firm, to pay or secure either an individual debt- of one of the partners, or the debts of the firm. The equity of the creditors is a derivative one, and arises out of the principles of subrogation, entitling them to enforce the equities subsisting between the partners, so long as the right of any of the partners has not been waived.* * * ‘The true doctrine is that the property of the partners is their joint property, and they may sell and dispose of the same in good faith as they deem proper; * * they have the right to prefer creditors, and even may, if all the partners consent to do so, dispose of the property to satisfy the individual debt of one of the