Page:Federal Reporter, 1st Series, Volume 1.djvu/281

 BHBCHBR V. FOX. BT-*? �Bbeoher, Assignee, ». Fox and another. �{Circuit Court, D. Mxnnemta. February, 1880.) �BaNKBUPTCT— PaRTNEESHIP — MiSAPPROPRIATION BT MEMBEB OF IUSOIf VENT FlRM OP PARTNERSHIP ASSBTS. �Final hearing upon pleadings and proofs in suit in equity. �Eogers e Rogers, for complainant. �Amos Cogswcll, for defendant Etneline Fox. �Nelson, J. The complainant, who is assignee in bank- ruptcy of Melvin & Fox,brought this suit against J. R. Fox, one of the bankrupts, and Emeline Fox, his wife. The prayer of the bill is, in substance, that the sum of $624 be declared to be a specifie lien and charge upon certain property, to-wit, lot seventeen, (17,) in block number seventeen, (17,) in. the city of Owatonna, in this district, and that the same be sold under the directions of this court, and ont of the proceeds the said sum be paid to the assignee, and for general relief. J. E. Fox and William S. Melvin were adjudged bankrupts onFeb- ruary 20, 1878, and the complainant was appointed assignee April 1, 1878, and duly qualified. It is clearly proved or admit- ted that on January 22, 1878, J. R. Fox, being at that time insolvent, paid out of his estate, or his interest in the assets ol the firm of Melvin & Fox, which had corne to him from the sale of firm property, without liquidating the firm indebtednesa, a debt secured by mortgage upon the property above described, owned by his wife, the defendant Emeline Fox, and the mort- gage was then canceled of record, and the title to the property now remains in her. �The answer avers that the mortgage debt was paid by Fox in good faith. �The only point in controversy is, could J. R. Fox nghtfuUy use the procceeds of the firm property whieh had been as- signed to him on a division, with the consent of his partner, for the purpose of paying this debt and discharging the lien upon his wife's property, while firm indebtedness to a large amount existed at the time, and the firm, and the individual members thereof, were insolvent? The facts bring this fairly v.l,no.5— 18 ��� �