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is clearly shown by the evidence, at the of his creditors, to the exclusion of others, request of the defendant hank, until draits

even though such transfer may have the were drawn by the cracker company on its eifect of delaying them in the collection of customers, in favor of the bank,for all of its

their debts. Its terms in no way quality available and outstanding accounts, and

the rule by which the character of this in. an in ventory taken of the stock purchased

strument is to be determined. Reading by Moli when he gave his check in favor

the instrument, then, as a whole, in the of the company for the amount of the pur

light of the circumstances under whicb it chase, which wasimmediatcly turned over to the bank in part payment of the crack

wasexecuted, was it intended as a security, er company's indebtedness to it. Then it

or as an absolute, unconditional converwas that the deed of assignment was ex.

anca in præsenti to the grantee of all the ecuted by the cracker company, and delive

grantor's interest in the property, both ered to the assignee, Mr. Fliterait. Was legalaud equitable, to the exclusion of any this all one and the same transaction, equitable right of redemption.” And it and part of the same scheme? If so, un

was accordingly held that the law of as. der the laws of this state, the transaction

signments was not applicable to a deed of netween the cracker company and the de- trust which conveyed all of the debtor's fendant bank, by its officers, was void,

property, real and personal, except his and of no effect, and the defendant bank homestead household iroiture and a must account for the amount realized by borse and buggy, to a trustee to secure the it from the transaction, and share pro payment of a part of his debts for which rata with the other creditors of the crack- he was liabile either as principal or as sure. er company. If not the same transaction, ty; and that the deed of trust was not then it cannot be compelled to do su. an assigoment within the meaning oi the Section 424 of the Revised Statutes of 1889 assignment law; and that the instrument provides that "every voluntary assign- was binding and valid as against all other mert of lands, tepements, goods, chattels, creditors. This case, as well also as tbe effects, and credits made by a debtor to case of Crow v. Beardsley, supra, was any person in trust for his creditors shall followed and approved by the supranie be for the benefit of all the creditors of court of the United States in the case of the assignor, in proportion to their re- Union Bank of Chicago v. Kansas Cits spective claims; and every provision in Bank, 1:36 l'. S. 223, 10 sup. Ct. Rep. 2013. any assignment providing for the payment See, also, May v. Tenney, 13 Sup. ('t. of one debt or liability in preference to Rep. 491; Foster P. Planing-Mill Co.. another shall be void, and all debts and 92 Mo. 79, 4 S. W. Rep. 260. A different liabilities (including judgments entered by rule is announced by many courts of high coniession thirty days previous to such | authority which hold that an insolvent assigament) shall be paid pro rata from debtor camaut so dispose of his property. the assets thereof; and every such assign- or the principal part thereof, by sale, deedi ment shall be proved or acknowledged. of trust, or mortgage, so as to prefer vlie

*" Under this statute no pre:erence or more creditors to others, at the same of any creditor can be made by voluntary time intending to make an assignment for assignment, and a provision in a deed of the benefit of his other creditors, as such assignment making such a preference is disposition would be an evasion of the as. null and void, and of no eifect. Crow v. signment law. This has been held in the Beardsley, 68 Mo. 437. In thecase of Samp- following cases: Preston v. Spaulding. son . Shaw, 19 Mo. App. 274, where the 120 III. 208, 10 N. E. Rep. 903; White r. debtor on the 13th day of June, 1881, ese- Cotzhausen, 129 U.S. 329, 9 Sup. ('t. Rep. cuted a chattel mortgage on his personal 309; Berry v. Cutts, 42 Me. 415; Holt . property, and on the following day made Bancroft, 30 Alu. 193; Perry v. Holden, »? an assignment by deed duly executell, and Pick. 269; Mussey 1. Noyes, 26 Vt. 471; there was no evidence whatever that the Van Horn F. Smith, 59 lowa, 142, 12 N. W. execution of the mortgage and deed of as- Rep. 789; V. S. v. Bank, 8 Rob. (La.) 302. signment were a part of the same transac- The rule thus laid down has also been an. tion, or that the debtor was intending to nounced by the federal courts within this make an assignment at the time he exe- state so as to hold a deed of trust, in the cuted the mortgage, it was correctly held nature of a mortgage, of all the personal that the mortgage was validh, npon the property of the debtor to be a voluntary ground that, while the mortgagor re- assignment within the meaning and effect tainei duminion of his property, he may of the Missouri statute. Martin v. Hausincumber and convey it as he pleases, if man, 14 Feil. Rep. 160: Dahlman v.Jacobs, not directly forbidden hy law, and prefer 16 Fed. Rep. 614; Kellog v. Richardson. 19 such creditors, by payment and transfer, Fed. Rep. 70; Claup v. Dittman, 21 Fed. as he chooses. Wakeman v. Grover, 4 Rep. 15; Perry v. Corby, 11. 737; Kerbs V. Paige, 23; Blakey's Appeal, 7 Pn. St. 419; ! Ewing, 22 Fei. Rep. 6993 ; Freund v. Yaeger. Lampson v. Arnold, 19 lowa, 484. So it mul), 26. Fed. Rep. 812, and 27 Fed. Rep. was beld l,y this court, in the case of Har- 249; State v. Vorse, Id. 261. But these gadine r. Henderson, 97 Mu. 375, 11 S. W. federal decisions have all been overruled. kep. 218, that "the assignment law of Mis- or a different doctrine announced, by the souri is not, in letter or spirit, a bankrupt supreme court of the United States in the or insolvent debtor's act. A debtor', I cases of Union Bank of Chicago v. Kansas whether solvent or insolvent, nay, in ' ('ity Bank and May ”. Teppey, supra. good faith, sell, deliver in payment, mort. But in the case at bar a different state oi gage, or pledge the whole or any part of facts exists from those in either one of the bis property for the benefit of one or more

!
federal cases cited. Here the transactions

were all parts of the same scheme, which, vor of the judgment creditors. Spellman v. we hold, amounted to an absolute convey

Freedman, (Sup.) 7 N. Y. Supp. 698. But the ance in præsenti. It seems clear, therefore,

mere fact that a judgment is confessed at or

about the time of the execution of a general from the views herein expressed and the

assignment does not prove that the judgment authorities cited, that the transfer to Voll,

is part of the assignment, so as to prefer the one of the directors of the defendant bank,

creditor. Bank v. Bard, (Sup.) 10 N. Y. Supp. of about all of the effects of the cracker 634. company, which of itself compelled it to suspend business, and the execution of the deed of assignment, were but one and the same transaction, in contravention of the

LARRABEE et al. v. FRANKLIN BANK statute in regard to assignments, and

et al. that the defendant bank, by its officers, having notice of all the facts and circum.

(Supreme Court of Missouri, Division No. 2.

March 14, 1893.) stances, and being party thereto, should not be allowed to profit by a transaction

Appeal from St. Louis circuit court; James

E. Withrow, Judge. or scheme so transparent at the expense

Suit in equity by Edward J. Larrabee and of the other creditors of the insolvent com- others against the I'ranklin Bank, Adolph Moll, pany, but, on the contrary, should be held and others. From a decree dismissing the acto share pro rata with all of the other

tion against defendant Moll, plaintiffs appeal. creditors. This is but equal and exact

Affirmed. justice to all creditors, and such seems to J. M. Holmes, for appellants. Paul F. Coste, be tbe spirit and intention of the law of for respondents. assignments. As this necessarily results in

BURGESS, J. This is the same case disthe affirmance of the judgment, it is not

posed of at this term between the same parties, deemed necessary to pass upon the other

(21 S. W. Rep. 747:) the only difference being, questions raised by counsel in the case. in the case at bar plaintiffs appeal, while in the There was no error in dismissing the case other the defendants appealed. Precisely the against Moll.

same points exist, and the same questions are Judgment affirmed. All concur.

involved, and for the reasons expressed in the former case he judgment is affirmed, All of

this division concur.
NOTE. .
AssIGxMENT FOR BENEFIT OF CREDITORS PREF-

EREXCES.
The statutes prohibiting preferences in as-

PAYNE et al. v. MASEK.
signments for the benefit of creditors do not
prevent an insolvent debtor from preferring

(Supreme Court of Missouri, Division No. 2. one creditor, to the exclusion of others, by

March 14, 1893.) paying or securing a debt, where no assignment PARTITION OF MINOR'S ESTATE - APPEARANCE BY has been made, unless an assignment is made

CURATOR. soon afterwards, and the debt was paid or

Rev. St. 1879, § 3346, relating to partisecured under such circumstances as to constitute a part of the same transaction. In such

tion, provides that the guardians and curators

of the estates of minors are authorized to do case the creditor does not forfeit his prefer

anything respecting the division of lands as ence unless he knew at the time that the debtor was insolvent, and that he intended to

therein directed, which shall be binding on such

ward, and be as valid as if the same had been make an assignment, and thus divest himself

done by such ward after his disabilities are reof all control over his property. Manning v.

moved. Section 3315 provides that all proceedBeck, (N. Y. App.) 29 N. Ê. Rep. 90; White

ings in partition shall be as in ordinary civil v. Cotzhausen, 129 U. S._329, 9 Sup._Ct. Rep. 30.); Banking Co. v. Fuller, i Atl." Rep. actions Hell, that a minor defendant in such 731, 110 Pa. St. 156.

proceedings, on whoin po service of process has

been made, is bound by the judgment of the In Clement v. Johnson, (Iowa,) 52 N. W. Rep.

court, where his appearance was entered by his 502, it was held that, where an insolvent debt

general curator. or gave mortgages on part of his property, securing some of his creditors, without any intention at that time of making an assignment

Appeal froin St. Louis circuit court; for the benefit of creditors, but a few days

Daniel Dillon, Judge. afterwards makes an assignment, it is not ren

Proceeding under the statute by Fannie dered invalid by reason of such preferences. E. Payne and others against William J.

In Bank v. Seligman, (Sup.) 19 N. Y. Supp. Masek for partition of real estate. There ::62, it was held that judgments confessed by was judgment for defendant, and plaintiffs an insolvent debtor at the time of making an

appeal. Affirmed. assignment were part of the assignment, and created preferences in favor of the judgment lowing statement by GANTT, P. J.:

The other facts fully appear in the fol. creditors. But a confession of judgment by an insolvent debtor, under which the creditor

This is a proceeding under the statutes levies and obtains all the debtor's assets, is

of this state for partition of certain real not an illegal preference where the debtor does estate in the city of St. Louis. Plaintiffs not afterwards make an assignment. See, also, claim to own three twelfths of the land, Berger v. Varrelmann, 27 N. E. Rep. 100.3, 127 and alleged that defendant owns the reN. Y. 281; Hier v. Kaufman, 25 N. L. Rep. 517, 134 III, 215; Farwell v. Nilsson, 24 N. E.

maining nine twelfths, and pray for a sale. Rep. 74, 133 Ill. 45; Hanford v. Prouty, 24

The answer is a general denial, and a plea N. E. Rep. 565, 133 Ill. 339; Putney v. Fries

of ownership of the whole tract by defendleben, 11 S. E. Rep. 337, 32 S. C. 492.

ant, which was denied in the reply. The Judgments confessed in contemplation of a cause was submitted to the circuit court general assignment constitute preferences in fa- upon the following agreed statement of facts: “Fapne E. Payne et al., Plaintiffs, nor was there ever an order of farration vs. William J. Masek, Defendant. It is made in said cause. That said Robert H. agreed by and between the parties hereto Payne died in October, 1859. That the that the following are the facts of this property in question is not susceptible of caso, and it is further agreed that this case partition in kind. That subject to vijecshall be submitted upon these facts, and tions by the defendant, for irrelevancy and none other, viz.: That theretofore, to incompetency, it is admitted that these wit, on or about April, 1888, a partition plaintiffs herein never received from any snit was brought in this court, and to the source any portion of the purchase price June terin, 1888, thereof, wherein Margaret of said premises, nor did said Robert H. Payne, Alfred H. Payne, and wife, were Payne ever account to them in any way plaintiis, and Edward H. Payne, Narcissa for the same, or any part thereof." The J. Payne, Fannie E. Payne, a minor, Mary finding and judgment of the court was for A. Payne, a minor, and Thomas J. Payne, defendant, and the plaintiifs filed their moa minor, and Robert H. Payne, curator of tion for a new trial, alleging as grounds said minors, and Rochester Ford, admin. therefor that the finding and judgment of istrator of Thomas J. Payne, deceased, the court was for the wrong party; that were defendants, said three minor defend- | they should have been for plaintiffs, inants being plai: tiffs in this suit; which stead of defendant; that the finding was said partition suit was numbered 76,759, against the law and facts; which motion and was brought to make partition of the having been overruled, and all exceptions land in controversy here, and other properly saved, the plaintilis bring the lands. That at the time of the institution case here by appeal. of said suit the plaintiffs herein, viz. Fannie E., Mary A., and Thomas .. were each

Seneca N. Taylor and H. M. Pollard, for the owners in fee of an undivided one

appellants. John N. Straat, for respond. twelfth of the land in controversy, and that ent. they arestill the owners of such interest, unless the same has been divested by the sale GANTT, P. J., (after stating the facts.) hereinafter mentioned as having been This record presents the sole question made in said partition suit. That no pro- whether under the partition law of this cess of any kind was ever issued in said state in force in 1888, in a suit for parti. partition suit for, or served on, these said tion of lands, a minor defendant in such plaintiffs, at any time, nor was there any suit could appear by bis or her general order of publication made or published in curator, without service of process on such said case at any time. That these said minor defendant, so as to be bound by the plaintiffs were then all minors, and resided judgment of the court. It is conceded by with their mother in the state of Illinois. both sides that the Revision of 1879 conThat said plaintiff Fannie E. is now po tains the laws governing the proceedings longer a minor, baving reacher ber ma- in the suit in question in this case. Sec. jority shortly before this suit was begun, tion 3345, Rev. St. 1879, provides that “all but the other said plaintiffs herein are pleadings and proceedings under this chapboth minors, and the plaintiff William A. ter shall be had us in ordinary civil acRutledge is their duly appointed, qualified, tions." Section 3346, that “the guardians and acting curator, as alleged in the peti- and the curators of the estates of minors tion in this case, That at the time of the and persons of unsound mind, appointed commencement of said suit for partition, according to law, are hereby authorized, to wit, No. 76,759, brought to the June in behalf of their respective wards, to do term, 1888, of said court, said Robert H. and perform any matter or thing respectPayne was the general curator of the es- ing ihe division of lands, tenements, or tate of said Fannie E., Mary A., and hereditaments, as herein directed, which Thomas J. Payne, plaintiffs derein, he hav. shall be binding on such ward, and deemed ing been long prior thereto appointed as as valid to every purpose as ii the same such by the probate court of the city of St. had been done by such ward after his disLouis. That after the institution of said abilities are removed." This latter section suit in partition, (No. 76,759,) the said was first adopted November 2, 1808, by Robert H. Payne, as curator, entered the the legislature of the then territory of appearance of said Fannie E., Mary A., Louisiana. It has been retained, with and Thomas J. Payne, his said wards some amendments, io every revision of our therein, without any process having been laws from that date to the present time. issued for or served on either of them, and The amendment simply included curators, without any order from any court so to where the section originally applied to do, and without an order of publication guardians only. Territorial Laws to 1824, ever having been inade or published in p. 203, § 5; Rev. St. 1815, p. 774, $ 53; Rev. said cause. That afterwards such pro- St. 1855, p. 1119, $ 51; Gen. St. 1865, p. 616, ceedings were had in said partition cause $ 48. It is essential to bear in mind this (No. 76,759) as that said premises were section and its history as we proceed to sold, and the defendant in the case at bar the further examination of this case. The bought the same at said partition sale, defendant does not controvert the propo. and paid the sheriff, who made said sale, sition that in all actions and proceedings full value therefur, and defendant now under our statutes, wo‘ther at law or in holds the same by virtue of such title as equity, except in a suit for partition under he acquired at said sale, and the confirma- the statute, unless the minor defendant is tion of said sale by the court; but, as be. served with process, or July notified as the fore stated, at no stage of said case was la w requires, the judgment or proceeding there any process issued or served upon as to him is utterly void, but he insists Fannie E., Mary A., and Thomas J. Payne, that, in a partition case under the statute

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of 1879, a general guardian can put his , his wards, admitting the allegations conward under the jurisdiction of the circuit tained in the petition. Thecourt made an court hy appearing for him in his capac- order appointing commissioners, who reity as guardian without the service of pro-ported that the lot coul, nut be divided, cess on the ward, and that the ward will and thereupon the court ordered a sale, be bound by the judgment of the court in the lot was sold, and sale approved. Subthe case. The question is one of much sequently these proceedings were quespractical importance. There ought not tioned, the point being whether or not to he any doubt in regard to a question these mipors were properly or legally in that must arise very often in the adminis- court, and bound by the judgment of the tration of the law. It must be conceded, I court. This court, in a clear and lucid in the outset, that the legislature could opinion by Judge Ryland, in wbich Judge pot easily have found language which Scott concurred, held that the general would be plainer and more comprehensive guardian bad a right to enter their apin conferring power upon the guardian or pearance; that the court obtained juriscurator to act for his ward than is to be diction, and wisely exercised it in appointfound in section 3346 or section 7139 of the ing a guardian ad litem, on the prayer of Revision of 1889.

the general guardian, out of abundant Preliminary to a proper adjudication of caution. That case also sustains the this question, we must determine what position that the proceeding must be act controls and limits the powers of a tested by the partition act. Under the law general guardian or curator in partition as it then existed, service of notice upon cases. This we regard as settled by the the guardian of the minor was all that unanimous opinion of all the members of was required, but it will be observed the this court in Le Bourgeoise v. McNamara, guardian himself was plaintiff in his own 82 Mo. 189, wherein it was held that in par- right. No notice was served upon him as tition proceedings guardians of minors de guardian or upon his wards. The minors rive their powers from the partition act, were residents of Kentucky at the time. and it was expressly ruled that the doc. That act contained a section which is subtrine announced in Revely v. Skinner, 33 stantially the same as section 7139 vf the Mo. 98, and McClure v. Farthing, 51 Mo. present Revision. Hite v. Thompson was 109, that a guardian ad litem had no pow. cited with approval by Richardson, J., in er to admit material facts in the conduct Smith v. Davis, 27 Mo. 298, the point being of a trial, so as to bind his ward, did not that the guardian might consent to a trial govern partition proceedings, the legisla of a partition cause at the first term, basture having assumed to direct a different ing the right upon section 51, Rev.St. 1855, course in such cases. This construction is which was the same as section 7139. This in harmony with the cauon of the con. case again came under review in Shaw v. struction which requires that a special Gregoire, 35 Mo. 342, and was sustained provision applicable tu a particular sub- upon the agreeil state of facts filed. Afterject shall prevail over a general provision wards, in 1867, Shaw v. Gregoire was that may be inconsistent therewith. again before tbe court, (41 Mo. 407,) and, State v. Green, 87 Mo. 583; State v. De upon the corrected record, a different conBar, 58 Mo. 395. In Le Bourgeoise ». Mc-clusion was reached from that held in the Namara, supra, the guardian ad litem of thirty-fifth volume, but the doctrine of certain minor defendants entered into a Hite v. Thompson was not repudiated, stipulation dispensing with proofs, so far but we tbiuk recognized and approved by as said minors were concerned. The pow- i the court, through Judge Holmes, because, er to do this was subsequently challenged while holding that no person, minor or in a writ of error cora in nobis, and this adult, could be bound by a proceeding court unanimously concurred in sustain-without notice or service of any kind, yet ing the guardian's power, and cited sec- he most clearly recognizes the right of a tion 48, Geo. St. 1865, being the same as duly-authorized representative to enter section 7139, Rev. St. 1889, as clothing the the appearance of a minor in the followguardian with such power as the warding language, on page 411: “But until he himself would bave if his disabilities were in brought into court by the service of a l'emoved. We see nu reason whatever for petition, and a notice on him or his giardcasting any doubt upon the conclusion ian, or until he appears in person, or by reached in that case, and our judgment is his lawful guardiay on whoin such service that the general guardian's or curator's has been had, or who has authority in power in partition suits and proceedings law to represent bim in such matter withis referable to the partition act. The first out notice, there is not the least warrant, case in the decisions of this court insolv- either in the statute or in common law or ing this poiot is Hite v. Thompson, 18 Mo. in equity, for any authority in the court 461. The facts were these: In 1833, one to appoint a guardian ior him, or to do Abernathy tiled his petition in court, he any judicial act in the premises affecting being the petitioner and Harriet and bis rights and estate." It must be borne James Marders, who were minors, were in mind that in this last case the guardian deiendants, praying for the appointment was, not a general guardian, but a guardof commissioners to make partition of ian ad litem for a minor who had no land. Abernathy stated that he was the general guardian, and had not himself been legal guardian of these two minurs, but, served. The court unquestionably was being an interested party, he prayed the right in holding that no jurisdiction had rourt to appoint a guardian ad litem to been obtained, but it clearly did not mean represent them. This the court did, and to intimate that it did not approve the the guardian ad litem filed an answer for ruling in Hite v. Thompson, that a gen:

v.21s.w.no.8—48

tative capacity for his waru, without the sebastian, Scott, A. Baker, and J. M.

Ao

eral

Sebastianfor appellantW. service of notice either upon the ward or G. Rodman, B. P. White, and J. C. White, himself. We have been unable to find any for appellees. case in this state that has criticised, overruled, or denied the doctrine of Hite v. LEWIS, J. In 1834 a patent for 600 Thompson, as interpreted in Shaw v. acres of land was issued to Alexander Gregoire. The decisions cited by the ap- White and Missenger Lewis; and in 1835 pellant are not based upon the state of the latter sold and conveyed his undivid. facts we have before us; not one of them. ed half thereof to C., J. & D. White, three Smith y. Davis, 27 Mo. 293; Fulbright v. | brothers and copartners. In 1852, AlexCannefox, 30 Mo. 425; Shaw v. Gregoire, ander White, being indebted to them in a 41 Mo. 407; Railroad Co. v. Campbell, 62 large sum of money, mortgaged all his No. 585; ('ampbell v. Gas Co., 84, Mo. 366; landed estate, including his vndivided ball Sargeant v. Rowsey, 39 Mo. 617, 1 S. W. in said 600 acres, to C., J. & D. White, reRep. 823; Troyer v. Wood, 96 Mo. 478, 10 taining, however, possession of his bome S. W. Rep. 49; Hull v. Cavanaugh, 6 Mo. place. In 1875, C., J. & D. White all being App. 147; Nagel r. Sbilling, 14 Mo. App. dead, the heirs at' law of D. White insti576. Judge Martin in Campbell v. Gas Co., tuted an action against the heirs and in discussing Waddingham's title, says devisees of C. White and J. White for a " that in June, 1836, he brought an action partition of all the lands owned by the for partition, under the statute of 1835, firm of three brothers. In the list of lands (section 5, p. 422.) A notice under that alleged to belong to C., J. & D. W bite, and

on the infants and their guardian. In that tive heirs and devisees, was the tract of case it was only served on the guardian, i 600 acres patented to Alexander White and and he very pertinently adds, “there was Missenger Lewis; and it was stated in the no appearance by them or for them by petition that Alexander White had congeneral guardian," wbich statement dis- veyed his undivided half of that stract to closes a radical difference between that C., J. & D. White before they died, but that case and this one at bar. (ur conclusion the deed had been lost. However, by the then is that the partition act in ample au- judgment reüdered in that action, the thority for a general guardian or curator tract of 600 acres was in fact partitioned, to enter the appearance of his ward, either | and 100 acres of it, besides other tracts, as plaintiff or defendant, in a partition was allotted by the commissioners apsuit, and to do and perform any matter pointed by court to the heirs and devisees or thing respecting the division of any of J. or James White, and a deed made to lands, tenements, or hereditaments that them therefor iv 1881. In 1883, H. L. the ward himself could do if his disabili. White, executor of the will of James ties were removed, and the judgment of Wbite, and empowered thereby to do so, thecourt will be binding on the ward. In sold and conveyed to appellant, Reynolds, this case the judgment of the circuit court all the land that bad in the action menin the partition in 1888 must necessarily be tioned been allotted to the heirs and deviheld valid or void. If void, it can be at- sees of J. or James White, including the tacked in this collateral proceeding. If ! parcel of 100 acres that bad been taken off valid, it is good as to all the world. In tbe tract of 600 acres; and for description our judgment, it is valid and binding, and and identification of the land so sold and the judgment of the circuit court is conveyed to Reynolds reference was made affirmed. All concur.

to deed of the commissioners to James White's heirs and devisees. The land in

controversy in this action is a parcel of 36 REYNOLDS v. WHITE et al.

acres inside the boundary of the original

600-acre tract, and also within buundary (Court of Appeals of Kentucky. March 11, of the 100 acres taken therefrom, and al. 1893.)

lotted to said heirs and devisees; and the ADVERSE Possession.

cause of this action, which was at first In 1852 the owner of one undivided half placed on the ordinary docket, is alleged of a large tract of land, including that in con- trespass by the defendants, B. P. White and troversy, mortgaged his half to the owners of J. C. White, in cutting and carrying timthe other half. The mortgagor was never able ber away from the 36 acres. It is proper to pay any part of the mortgage debt, and there

to state that neither of the defeadants was evidence that the mortgagees took posses

claim the land as heirs at law of any one sion of the land not long after the execution of the mortgage, and held, claimed, and exercised

of the three brothers C., J. & D. White, acts of ownership over' it until they died, and though defendant B. P. White is the hus. that in 1881 the mortgagor, who lived in the band of one of the beirs, and was a party immediate neighborhood, permitted the heirs at to the action instituted in 1875 for division law of the mortgagees, without objection, to ob- of the lands. In their apswer, they state tain a judgment of partition and sale of the

tbat prior to his death, though subse whole tract. Held, that the heirs at law of the

quent to death of the other two members mortgagees acquired title to the entire tract.

of the firm of C., J. & D. White, D. or Appeal from circuit court, Clay county. | Dougherty White caused executions to is. "Not to be officially reported."

sue on judgment or judgments in favor of Action for trespass by P. B. Reynolds the firm against Alexander White, and to against B. P White and another. From be levied on various tracts of land owned a judgment for defendants, plaintiff ap. by him; that, after the executions were peals. Reversed.

levied, he (Dougherty Wbite) made an

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