Patrick v. Central Bank

18 F. Cas. 1300, 1 Dill. 303

• Court: U.S. Circuit Court for the District of Nebraska
• Decided: July 1, 1870
• Status: Published

Opinion

DILLON, Circuit Judge.

This is a bill by the assignee of the firm of Mackoy & Co. to have declared fraudulent a certain conveyance of real estate made for the benefit of the bank, by one of the members of the firm and his wife. The object of the bill is to obtain the property for the benefit of the creditors of the firm. The objection taken by the defendant, and the only one now to be considered is, that since the property sought to be reached was the individuar property of one of the partners, the plaintiff, as the assignee of the firm, can have no right to the relief sought.

If the allegations of the bill be true, the demurrer is not well taken. The complainant alleges that the property in question was purchased “with money belonging to the firm bfi Mackoy & Co.” If so, then in equity the firm would own it, or have an interest in it, and it would not, as against the firm or their creditors, be the separate or individual property of Mackoy. Assuming these to be the facts, the interest of the firm would pass to the assignee, and -he could maintain the bill, although Mackoy has ' never been individually proceeded against or adjudged a bankrupt. The demurrer is, therefore, overruled.

Whether, on the assumption that the property was the individual property ef Mackoy, the assignee of the firm could, in any event, reach it, and if so, what ought to be alleged and shown, to entitle him to do so, are points that need not be considered, since the bill seems not to have been trained upon this basis, but on the one above stated. Demurrer overruled.