Topliff v. Vail

1 Harr. Ch. 340

• Court: Michigan Court of Chancery
• Decided: July 1, 1841
• Status: Published

Opinion

The Chancellor.

I can see no well founded distinction between this case and the case of Deveau vs. Fowler, 2 Paige 400.

The cases cited from Yesey, I am inclined to think stand on a different ground.

As a question between bona fide creditors of a previous firm and the separate creditors of a partner who continued the business, and was the sole visible owner of the property employed in the trade, I should concur in the view that where the separate creditors had given credit relying upon the property employed in the trade for payment, they should be preferred to the creditors of the previous firm. But no such question arises here as the case now stands. The whole transaction is alleged to be fraudulent.

That the remaining property of this firm has been fraudulently transferred, and without consideration to prevent its application to the payment of the partnership debts ; and this for the purpose of this motion must be considered as admitted.

The creditors of a partnership have a right to payment out of the partnership effects; in preference to the creditors of an individual partner.

In Deveau vs. Fowler, the partnership effects were transferred to the partner continuing the trade, and he agreed to pay the partnership debts, and that is this case. The circumstance of taking the individual bond or guarantee of this partner does not vary the case.

I think the Chancellor was right in the last mentioned case, in saying, that in the absence of any agreement to the contrary, it is the fair presumption that the retiring partner did not intend that this property should be used for his individual purpose, leaving the debts of the firm unpaid. This case as it now stands is stronger than the case of Deveau vs. Fowler.

Here it is alleged that Yail has fraudulently transferred the assign-e(j effects for the purpose of preventing their application to the payment of the partnership debts, and that he has absconded,

The complainant does not ask that the partnership property shall be reconveyed to him, but applied to the payment of the partnership debts, for which he is liable. If the goods were in the hands of a Iona fide purchaser, it would present a very different case.

Motion denied.