by the plaintiffs in the several attachment suits. To the garnishment he answered, showing the facts as above. He sold the goods, and after paying his own expenses and claim, delivered back to the sheriff the goods remaining unsold, and the balance remaining in his hands from the proceeds of the sale. Plaintiff took issue on the garnishee's answer, and the parties went to trial thereon. On the trial, plaintiff requested the court to instruct the jury that "if M. J. Delashmut, the partner of Wilcox, sold his interest in the stock of goods to his partner and took a mortgage or bill of sale on the partnership property to secure the payment for said interest, and said Delashmut assigned the said mortgage or bill of sale to the garnishee, W. W. Delashmut, then the said garnishee holds said property subject to the claims of the then partnership creditors of said firm, and is liable to the plaintiff for the value of the goods so received and held by him, with interest." The court refused to give such instruction, but did instruct the jury that "if the goods mentioned were held by the garnishee on account of a bona fide sale to him, to pay a debt due him, and before the attachment was levied on the goods, the said garnishee had the legal right to the property, as against the partnership creditors, provided there was no fraud in the sale. In this ease the mortgage and assignment of the same is evidence of what it purports to be, and is received by the jury as a bona fide sale, unless there is evidence before the jury to impeach it." Verdict for plaintiffs, for one dollar and eleven cents. Plaintiff appealed, assigning as error the refusal to charge as requested, and the charge given, as above

set out.

C. Ben Darwin, for the appellant.

Browning and Tracy, for the appellee.

By Court, WOODWARD, J. The interrogatories to the garnishee might have been carried somewhat further to show the consideration of the assignment from M. J. to W. W. Delashmut, but this was probably admitted to be unquestionable. There is nothing throwing suspicion upon it, and it is to be taken as a bona fide transaction.

The question presented to this court is, whether the court below was correct in the instruction given, and in the refusal of that which was asked by the plaintiff. It is true that as a rule the partnership creditors have a priority of right in the partnership property. But what is the meaning of the rule, and where is it applicable? Does it mean that the partnership

creditor may step in, and take precedence of an individual creditor at any time, and under all circumstances? The answer must be that, to enable the court to apply the rule, the case must be such that the court may marshal the debts and effects, and thus ascertain the amount of the joint liabilities and of the joint property. In this manner the court finds whether the entire assets are wanting to pay the joint creditors. Before the joint creditor can take the property from the individual creditor who has an attachment or other lien, it must be ascertained that the property is wanted for this purpose; that is, that there are not more than sufficient means for the payment of the partnership creditors. Therefore, it will be perceived that the joint creditor cannot come in by his attachment alone, and oust the separate creditor from his prior attachment or other lien. The former has not a lien which he may enforce in this manner for himself alone by his attachment. It is not yet ascertained that there is not sufficient for the payment of both classes, and this cannot be done in his separate action at law for the recovery of his debt. This is usually effected by the aid of a court of equity. But we are not called upon to, and therefore will not undertake to, declare that it cannot be done otherwise: 1 Story's Eq. Jur., secs. 625 et seq.

It is to be remarked that the garnishee was not required to make the mortgage and assignment a part of his answer, nor are they before us in any manner. so that we have no means of knowing whether the terms of that instrument affect the ques tion. No error being found in the action of the court, the judgment is affirmed.

PARTNERSHIP AND SEPARATE CREDITORS, RESPECTIVE RIGHTS AND PRI ORITIES OF: See Tillinghast v. Champlin, 67 Am. Dec. 510; Miller v. Estille, Id. 305, and notes to both cases. Partnership creditors have no lien on the partnership property, but merely a preference, which must be worked out through the equities of the various creditors and the members of the firm: Hawk Eye W. M. v. Conklin, 26 Iowa, 426; and the rule as to priority cannot be invoked between creditors of the same class: Loving v. Pairo, 10 Id. 290; nor can a joint creditor by attachment oust a separate creditor from his prior attachment by virtue of any right of priority as a joint creditor: Cox v. Russell, 46 Id. 56, all citing the principal case.

CORBIT v. SMITH.

[7 IOWA, 60.]

TO HAVE EFFECT OF CONVERTING DEED ABSOLUTE ON ITS FACK INTO MORTGAGE, evidence of a parol contemporaneous agreement that the deed was to be received as a mere mortgage, and that the grantor should have the right to redeem, must be clear, satisfactory, and conclusive, and not made up of loose and random conversations with the grantee. PAROL TESTIMONY TO ESTABLISH TRUST OR TO CONVERT DEED ABSOLUTE ON ITS FACE INTO MORTGAGE, against answer of respondent, should be clear, and even then received with great caution. MENTAL UNSOUNDNESS MAY BE SUFFICIENT TO INVALIDATE DEED, though it be but a very modified degree of incapacity, if the transaction be accompanied with fraud, imposition, or overexercise of authority. LUNATIC OR PERSON WHO IS ACTUALLY INSANE CANNOT BIND HIMSELF CIVILLY, and where insanity is proved, all question as to the validity of contracts made by the lunatic during the period of insanity is at an end. HABITUAL INSANITY, OR THAT WHICH IN ITS NATURE IS CONTINUOUS AND CHRONIC, if once shown to exist, raises a presumption in favor of its continued existence to the time of a contract, attacked on the ground of mental unsoundness, and the burden of proof is on the party asserting sanity and the validity of the contract.

I HABITUAL INSANITY IS NOT ESTABLISHED, PRESUMPTION ARISES THAT PARTY TO CONTRACT, LIKE ALL HUMAN CREATURES, WAS RATIONAL; and the fact of the existence of a prior period of lunacy will not throw the burden of proof on the party asserting the competency of such person. IN CASES OF INSANITY, TO DETERMINE ORDER OF PROOF AND PRESUMPTION, reference must be had to the effect of peculiar circumstances connected with the insanity, upon its character, whether habitual and apparently confirmed, or only temporary and not continuous.

BILL to set aside deed from complainant to respondent, on the ground of mental incapacity at the time of making the deed. C. Ben Darwin, for the appellant.

Hall, Harrington, and Hall, for the appellee.

By Court, WRIGHT, C. J. The position of appellant that the deed was intended as a mortgage is not sustained by the proof. The only testimony to this point is of certain admissions made by and conversations had with respondent. There is a want of definiteness and certainty, however, in the proof, so much so as to render it quite unsafe to rely upon it. The deed is absolute upon its face. Complainant relies upon a parol contempora neous agreement that it was received as a mere mortgage, and that he was to have the right to redeem. To establish such an agreement, his proof should be clear, satisfactory, and conclusive, and not to be made up of loose and random conversations with respondent. Witnesses are so liable to forget, or unwit

tingly misrepresent, or mistake such conversations, that their testimony should, as a general rule, be received with great caution. Indeed, all parol testimony against the answer of a respondent to establish a trust, or to make a conveyance absolute upon its face a mortgage, should be clear, and even then received with great caution: Boyd v. McLean, 1 Johns. Ch. 582; Blair v. Bass, 4 Blackf. 539. In this case the testimony of complainant upon this point is far from being clear or satisfactory. In addition to this, respondent proves by one witness-and he the agent of complainant in conducting the sale that it was absolute, and that there was no agreement or understanding that there was to be a redemption.

Nor do we think that the charge that the deed was obtained by fraud, and the use of undue and improper influences sustained by the proof. It is stated in the bill, and attempted to be shown, that the price paid was grossly inadequate, and thus fraud is attempted to be established. The testimony, however, when all considered, so far from showing this inadequacy, satisfies us that the price paid was reasonable and even more than any other person would then have paid. It appears that complainant was at the time confined in jail, and intrusted one Stephens with the sale of the land. Previous to this time he had been to California, and had selected one Smith to make sales of his land. Both of his agents made efforts to make a saleoffered the land to a great number of persons-but found no one who was willing to give as much as respondent finally paid. Then the witnesses who speak of the value of the land leave it probable, to say the least of it, that it sold for its full value. Some, it is true, give it a much greater value, while others place it at less. The fact, however, that it was in market for several months; that efforts were made in good faith by Stephens and Smith, the agents of complainant, to sell it for the best price possible; that they could not succeed in selling it for as much as was paid by respondent-to our minds conclusively rebuts the position that the price paid was so inadequate as to raise the presumption of fraud in procuring the deed.

The testimony tending to show the use of undue and improper influences in procuring the deed is exceedingly slight, and by no means sufficient to satisfy us of the fraud charged. It is true that respondent was about to sell under his trust deed. It appears, however, that respondent first loaned to complainant, one thousand dollars in August, 1851, to be paid in August, 1852, to secure which he took a mortgage upon the land in con

troversy. Afterwards, in January, 1852, Corbit, desiring to go to California, solicited a further loan, which he received, making, with the amount secured by the mortgage, the sum of over one thousand four hundred dollars. Respondent canceled the mortgage, took a deed of trust, and extended the time of payment to January 15, 1853. The testimony, so far from showing that the respondent unduly hastened or pressed the collection of his debt by a forced sale of the land, rather shows that he preferred his money, and desired that the land should be sold to some third person by private sale, if the money could not be otherwise raised.

Then again, while some of the witnesses testify that respondent was present in the jail at the time the deed was made, and persuaded complainant to execute it, his presence is expressly denied by the testimony of other witnesses. And then, if pres ent, it is not shown that he made any false representations, or, indeed, that he said anything to induce complainant to do different from what he would otherwise have done. It is not established, in a word, that complainant was influenced in the least by anything said or done by respondent. In view of the fact that complainant was at the time imprisoned; that respondent was his creditor, holding the land by deed of trust, under which he had advertised to sell; and that complainant was, to say the least of it, of doubtful mental capacity to contract-the respondent should be held to the utmost good faith. When there is nothing, however, to impeach the fairness and integrity of the transaction-where there is nothing to show that respondent has taken advantage of complainant's condition, or his own power as a creditor-it will not do to declare the deed void for fraud, or on account of the use of undue and improper influences. The complainant had an agent acting for him, who negotiated the sale. The deed was acknowledged before a magistrate, who had frequently transacted business for complainant, and who wrote the deed and acknowledged it at his request. The deed was signed in the presence of this agent, the magistrate, complainant's wife, and several other persons. It is not shown that respondent had previous to this time conversed with complainant, or used any means to induce him to make the sale. If he conversed with him at the time, the conversation consisted of but few words. After the sale the complainant received the remaining portion of the purchase-money; and indeed, all the circumstances, to our minds, rebut even any presumption of fraud, and are in entire accordance with, and may be regarded as even affirmatively sustaining, the utmost good faith.