The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1883-01-12
supreme Court-Jan. II.

Hon William A Woods. Chief Justice.
PARTNERSHIP PROPERTY-FIRM CREDITORS
$500 Trentman ct al VS.. A. G. W. swartzen,
Marshall c. c.
Morris, C.-Swartzell and voreis we're partners
In business, and Yoreis sold his interest in the
nrm To SwartZell, who agreed to nav the hrm
uebts, but without doing SO he sold the stock of
goods to his father, william Swartzell. The
creditors then brought suit In attachment to
subject the property to tie payment of their
claims. Held: BY the sale of VOreis's interest
In the firm effects to Swartzell they became his
Individual property, and he could sell it and APP
ply the proceeds to the payment of his individ-
ual Gebts the same as il it had never been part
nershp property. Partnership creditors have
no lien upon partnership property. Their right
TO priority of payment out of the firm assets ia
WORKED out through liens OF the partner. and
Voreis having sold his interest and parted with
MS hen on the firm assets, the firm creditors
could not assert a lien on the goods of the late
firm. q d. NJ & G. 352; 81 Miss. 1922; Ldndiey
Part, 57s-5so9 Judgment affirmed.
NATIONAL BANKs-AssEssMENT OF REAL Es
TATE.
10463. SAMPLE Loftin vs., Citizens National
Woods, c. J.-Appellee brought this action TO
enJon the sale OF certain real estate for taxes
for SIS and 1879. The question presented ia
whether the assessor or a township wherein
national bank Is situated, in assessing the value
OF the capital stock Of such bank, must exclude
from consideration the real estate taken by the
bank IN payment of debts, and afterward assess
the real estate as such against the bank. After
considering the various provisions of the assess
the question must lie answered in the afiirina-
tive. The law of Congress is paramount and it
expressly f0rhids discrimination in favor of State
against national banks, ana though the letter of
the State law may require the assessment OF ma
tional bank stocks at their full value, without
deductions for real estate, the deduction being
allowed in favor of other banks under the law Of
Congress it must be allowed to the national
banks. Judgment reversed.
BOND OF RECEIvER-PLEADING-BR
1O,O26 Harry Colgate, receiver, VS.. Walter
S. Roberts. jefferson C. G.
Bcknell, C.-Suit on the bond OF a receiver of
a building association, The bond contains two
specifications, that Roberts should faithfully
perform his duty as receiver, and that he should
pay over all moneys received by him such
officer. The only breach assigned in the COM
plant was Of the second specification. To such
claim any defense was valid which showed
that the defendant had no money In his hands
receiver, III that he paid over ali he had. The
answer shows that he paid over all the money
which the court found MIN owing to the assoc-
alton. Judgment affirmed.
-DELIvERY-sTATUTE OF FRAUDS
9,741 Nathan Dixon vs.. Alexander H. Duke
Elliott, J.-where the plaintiffs title to per-
sOnal property, for which he brings replevn, de-
ponds upon contract, the general denial re-
quires HIN TO prove contract valid within the
statute OF frauds. (23 Ind, 1853; 81 i'd, 122; 46
n. Y, 223 &c i'd, 206 l Chltty Plead, 500J
Where growing grain is sold by verbal contract,
and no delivery is made or earnest money paid.
the contract is within the statute of frauds. Is
Ind, SO; 70 i'd, 418.) But the defense OF the
"A creditor of the vendor. 40 Ind, All; lis
Mass, 1885, 40 ILL.,, 1891 But where the lien of
an execution attached on the wheat before
subsequent sale OF it by contract in writing, the
right of the execution creditor will prevail
against the subsequent purchaser. al Ind, 22l
Where a growing crop is sold and some ACT, az
the delivery to the vendee, or the payment of
the price remains to be done, the title does not
pass to the vendee. (Beni Sales, 67J; Wells OF
Rep, 1919 Judgment affirmed.
DECEDENTs EsTATES-DIsTRIBUTIoN.
7 Roh
ton. Hendricks c. q.
Bcknell, C.-Where, under section 2.409, Re
vised Statutes, 1881, an estate has been finally
settled and the surplus paid into court to be paid
to such persons as shall appear aud prove their
interest, the court has right to inquire into all
the circumstances affecting the right OF the par
ties claiming the money; and where it appeared
that OF the claimants had received more
than her distributive snare under the will OF the
testatOr, ana that the other had purchased the
shares of all the other dstributees such surplus
would belong to the latter. Judgment al
tirmed.
CLAIMS AGAINST EsTATEs-oPEN ACCOUNTS.
1862 Nathan Perull VS.. William A. Nichols.
Marion C. C.
Black, C.--In claims against deoedents' estates
the court has discretionary power TO require
the claimant to testify, ara this dis
erection s an absolute one, not
subject to be reviewed. (2S Ind, 499A In
such claims the estate may avail itself of the
statute of limitations without special plea. (67
Ind, I74J When the death of the debtor inter.
venes within eighteen months preceding tho
close of the ordinary period of limitation, the
ton may be brought within eighteen months
after the death. t66 Ind, 267l In the pleadlngs
and on the trial both parties treated the account
of the claimant as mutual, open and current
one. 1t was competent for the court acting as a
jury, to find that the account was such an one,
and being found such, the statute could only run
against it from the date of the last item proved
on either side. t4S Ind, 81 Judgment al
frmed.
The following cases we're also decided:
1878. City OF Evansville VS.. Frank Morris
Vanderburg C. c. Reversed. Best, e.
1928. Samuel Pence vs. Nathan Armstrong,
Henry C. G. Affirmed. Best G.
S50S. Joseph Cox VS.. Leonldas Stout. Orange
G. z, Affirmed. Black c.