The Montgomery advertiser., 1903-02-28
Opinion by Haralson, J.
PENNEY V. MCCULLOUGH, EFT AL. MCCULLOUGH EFT AL. Y. PENNEY,

IENNE1 V. McSO bLON II, T. AL
 MCCULLOUGH EFT AL. Y. PENNEY,
 Cross Appeal.
 Bill in Equity to Set Aside Fraudulent
 conveyance.-Appeal from Morgan l Chancery Court.
 1. Fraudulent conveyance; sufficiency of answer to bill; burden 0; proof-Where bill is filed by existing creditors of an alleged insovent partnership against the partners and their grantee, seeking to set aside a mortga ge of substantially all the partnership property as constructive ly fraudulent as against complalnants' rights. an answer filed by such grantee. containing only a mere general dcn'al Of the allegations of fact charged in the bill is insufficient to relieve respondent of the prima facie case made against hin-the burden resting upon him Of overcoming the presumption of unfairneSs and mala t1es both by a clear and distinct re- sponse to each averment of the bill and by clear proof.
 o. Same. burden of proof as to consid- eration of alleged fraudulent conveyance. Where a bill is filed by existing credi- tors of an lnsolvent partnership against the partners and their mortgagee. seeking to set aside the mortgage as in fraud of compliments rights. proof by complain ants of the existence of their debts de- wolves upon the respondent mortgagee the burden of proving bona fide debt, and that the mortgage was given to se- cure same, untainted by any fraud.
 g. Same; when bona fide debt not shown.-On bill filed by existing credi- tors of a partnership to set aside mort gage as fraudulent, respondent-the a legged fraudulent grantee-proved as the consideration of his mortgage the pay ment by him of certain sums to certain persons at the instance and request of the partners but failed to prove that the amounts so paid were correct and justly owing by the partnership. Held: that he had not discharged the burden resting upon him of showing a bona hde valuable consideration for said mortgage.
 4. Mortgage of partnership property, when constructvely fraudulent; liability of mortgagee to partnership creditors.- A partnership in failing circumstances executed a mortgage of substantially all the partnership property tpersonalty), due one day after date, to secure recited indebtedness to the mOrtgagee. the con sideration of which consisted in part of sums paid by such mortgagee to third persons at the instance and request of the partnership and in part of debts owing to the mortgagee by the members of the firm individually and which the partners by the partnership agreement as- stunned to pay. and in part of a certain sum to be paid the mortgagee for ser vices in looking after the mortgaged property. The property mortgaged great ly exceeded in value the recited mortgage indebtedness. Prior to the giving of the mortgage the mortga gors had given to the mortgagee two bills of sale on the same property to secure the same indebt- edness The mortgage was filed for rec ord on the day 1t was executed and pro yided for foreclosure at public or private sale After the execution of the mort gage and for several months after the law-day the property was in mortgagee's store to which he had a key, but the mortgagors also had access to 1t, and by verbal agreement with the mortgagee they were to ship and sell the property in his name. Some of 1t they did sell in his name and some they sold clandestine- lv in their own name, and the mortgagee also sold some. The mortgage was not foreclosed by public sale. Held: that the mortgage was cOnstructively fraudulent as to existing creditors of the partner ship. and that the mortgagee was liable to them as trustee for the value of that part of said property appropriated or con verted by the mortgagee to hls own use but not for the other property.
 Reversed and rendered.
 Opinion by Tyson, J.
 Heard before Hon. William H Simpson