10 S.E. 400 (W.Va. 1889), Darby v. Gilligan

Citation10 S.E. 400, 33 W.Va. 246
Opinion JudgeSNYDER, P.
Party NameDARBY et al. v. GILLIGAN et al.
AttorneyFrank Woods, for appellants. M. H. Dent, for appellees.
Judge PanelENGLISH and BRANNON, JJ., concurred. GREEN, J., absent.
Case DateNovember 20, 1889
CourtUnited States State Supreme Court of Appeals of West Virginia

Page 400

10 S.E. 400 (W.Va. 1889)

33 W.Va. 246

DARBY et al.

v.

GILLIGAN et al.

Supreme Court of Appeals of West Virginia.

November 20, 1889

Syllabus by the Court.

Where one member of a mercantile firm purchases the interest of the other member, and in consideration thereof assumes to pay all the partnership debts, the firm and both members being at the time insolvent, or on the eve of insolvency, and shortly thereafter the purchasing partner, without paying any of the firm debts, conveys the whole of the assets of the late firm to a trustee, in such a manner as to devote the whole thereof to the payment of his individual debts, held, such sale, being without any valuable consideration, is ineffectual to convert the social [33 W.Va. 247]assets into individual property; and, as to the equitable rights of the firm creditors, such trust-deed is fraudulent and void.

Appeal from circuit court, Taylor county, W. T. ICE, Judge.

Frank Woods, for appellants.

M. H. Dent, for appellees.

SNYDER, P.

Appeal from a decree of the circuit court of Taylor county, pronounced March 28, 1887, in the suit of Darby & Co. and others against John J. Gilligan and others. The suit was brought to set aside a trust-deed made by said Gilligan to John

Page 401

T. McGraw, trustee; to enjoin said trustee from disposing of the property thus conveyed to him; and to have the same applied to the payment of the plaintiffs' debts. On September 17, 1883, the said Gilligan and James Burns entered into an agreement in writing, whereby they agreed to form a partnership for conducting a general merchandising business in the town of Grafton, Taylor county, Gilligan having prior to that time been merchandising at the same place, and having then on hand a stock of goods, which he put into the firm at the value of $2,000, and Burns paid into the firm $1,000. Upon this capital stock, they agreed that Gilligan should have a two-thirds and Burns a one-third interest in the assets, business, and profits of the partnership. At the time this partnership was formed, Gilligan was indebted to the First National Bank of Grafton and others in the sum of $1,100, for money borrowed and put into the mercantile business while he was conducting it alone. During the carrying on of the business by the firm, the firm contracted debts to the plaintiffs and others, and the partners so managed the business that they...

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23 practice notes
  • 18 So. 456 (Miss. 1895), Jackson Bank v. Durfey
    • United States
    • Mississippi Supreme Court of Mississippi
    • May 20, 1895
    ...with proof of insolvency. 84 Iowa 671; 45 N. J. Eq., 186; 106 Mo. 365; 13 Col. 329; 52 Ark. 556; 21 N.H. 462; 52 N.Y. 146; 101 Ib., 265; 33 W.Va. 246; 15 Neb. 73; 29 Md. 311; 1 Jones on Mort., § 120; 114 Pa. St., 353; 60 Wis. 622; 80 Ala. 440. Williamson & Potter, for appellee. 1. The p......
  • 160 F. 57 (8th Cir. 1908), 2,623, Sargent v. Blake
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • March 19, 1908
    ...was not a valuable consideration for King's conveyance, but while there are authorities to that effect (Darby & Co. v. Gilligan, 33 W.Va. 246, 249, 10 S.E. 400, 6 L.R.A. 740), the better reason and the weight of authority are to the contrary, for a promise to pay the debt of another, al......
  • 83 N.W. 505 (Minn. 1900), 12,047, Davis v. Cobb
    • United States
    • Minnesota Supreme Court of Minnesota
    • August 7, 1900
    ...45 N.J.Eq. 186; Wilson v. Robertson, 21 N.Y. 587; Bulger v. Rosa, 119 N.Y. 459; Jackson v. Durfey, 72 Miss. 971; Darby v. Gilligan, 33 W.Va. 246; Pease, Chalfant & Co. v. Rush, 2 Minn. 89 (107). An individual creditor who accepts firm assets or a firm obligation in payment of his debts,......
  • 64 N.W. 1007 (Wis. 1895), Thayer v. Humphrey
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • November 8, 1895
    ...4 N.E. 529; Fulton v. Hughes, 63 Miss. 61; Dimon v. Hazard, 32 N.Y. 65; and many other cases that might be cited. In Darby v. Gilligan, 33 W.Va. 246, 10 S.E. 400, it is held that where a firm is insolvent, if a partner sells out to his copartner, and the purchaser agrees to pay the firm deb......
  • Request a trial to view additional results
23 cases
  • 18 So. 456 (Miss. 1895), Jackson Bank v. Durfey
    • United States
    • Mississippi Supreme Court of Mississippi
    • May 20, 1895
    ...with proof of insolvency. 84 Iowa 671; 45 N. J. Eq., 186; 106 Mo. 365; 13 Col. 329; 52 Ark. 556; 21 N.H. 462; 52 N.Y. 146; 101 Ib., 265; 33 W.Va. 246; 15 Neb. 73; 29 Md. 311; 1 Jones on Mort., § 120; 114 Pa. St., 353; 60 Wis. 622; 80 Ala. 440. Williamson & Potter, for appellee. 1. The p......
  • 160 F. 57 (8th Cir. 1908), 2,623, Sargent v. Blake
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • March 19, 1908
    ...was not a valuable consideration for King's conveyance, but while there are authorities to that effect (Darby & Co. v. Gilligan, 33 W.Va. 246, 249, 10 S.E. 400, 6 L.R.A. 740), the better reason and the weight of authority are to the contrary, for a promise to pay the debt of another, al......
  • 83 N.W. 505 (Minn. 1900), 12,047, Davis v. Cobb
    • United States
    • Minnesota Supreme Court of Minnesota
    • August 7, 1900
    ...45 N.J.Eq. 186; Wilson v. Robertson, 21 N.Y. 587; Bulger v. Rosa, 119 N.Y. 459; Jackson v. Durfey, 72 Miss. 971; Darby v. Gilligan, 33 W.Va. 246; Pease, Chalfant & Co. v. Rush, 2 Minn. 89 (107). An individual creditor who accepts firm assets or a firm obligation in payment of his debts,......
  • 64 N.W. 1007 (Wis. 1895), Thayer v. Humphrey
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • November 8, 1895
    ...4 N.E. 529; Fulton v. Hughes, 63 Miss. 61; Dimon v. Hazard, 32 N.Y. 65; and many other cases that might be cited. In Darby v. Gilligan, 33 W.Va. 246, 10 S.E. 400, it is held that where a firm is insolvent, if a partner sells out to his copartner, and the purchaser agrees to pay the firm deb......
  • Request a trial to view additional results