Welcker v. Staples

12 S.W. 340, 88 Tenn. 49

• Court: Tennessee Supreme Court
• Decided: October 17, 1889
• Status: Published

Opinion

TurNEY, C. J.

Joseph Mueke & Son being indebted, for the benefit of creditors made a general assignment to Complainant 'Welcker, in trust. '

Thomas Staples, who was indebted to Mueke & Son, by judgment, in the sum of about $104, conveyed his land to his wife and children for a recited consideration, part of which was paid.

The assignee filed this bill, attacking said conveyance for fraud. The Chancellor decreed for complainant, the land was sold, and purchased by Mueke, the senior member of the firm. The case is before us on writ of error.

It clearly appears that -for more than seven years prior to the filing of the bill the vendees were in the actual possession of the land, claiming it as theirs. The fact that the husband and father lived with them makes ,no difieren ce, as the possession is presumed to be with the legal title.

Mueke, the purchaser, while not a party by name, is a privy to this suit. If complainant, his assignee, succeeds, a debt is paid to him which is to be applied to the claims of his creditors, and for his benefit. He will have an interest in any surplus remaining of his assigned estate, after the payment of his debts; therefore, his title will fail on reversal upon a writ of error.

Decree reversed and bill dismissed with costs.