#### F. G. Ringgold & Co. v. J. C. Leith et al.

Dismissal ot Bill—When Cause of Reversal.'— Where the evidence, fairly weighed in the light of the surrounding circumstances, fully sustains the material allegations of the bill, a decree dismissing it will be reversed.

Creditor’s Bill. Appeal from the Circuit Court of Effingham County;, the Hon. Edmund D. Youngblood, Judge, presiding.

Heard in this court at the August term, 1897.

Reversed and remanded.

Opinion filed March 1, 1898.

John A. Bingham, Ashcraft, Gordon & Cox, and Bufus C. Harrah, attorneys for appellants.

Wood Brothers and Gilmore & Gilmore, attorneys for appellees.

*657Mr. Presiding Justice Creighton

delivered the OPINION OF THE COURT.

This was a suit in chancery in the nature of a credit- or’s bill begun and prosecuted by appellants against appellees in the Circuit Court of Effingham County, and resulted in a decree dismissing the bill at costs of appellants. Appellants except and bring the case to this court.by appeal. The principal defendants, J. C. Leith and G-. W. Leith, were partners doing business at Mason, Effingham County, Illinois, were indebted to numerous creditors, were insolvent, and on the twenty-sixth day of October, 1891, they executed to Harrison N. Ruffner, one of the codefendants, a bill of sale of their entire stock of merchandise for the expressed consideration of $34.46 and the assumption of a portion of the indebtedness of said partnership, aggregating $2,965.54.

As to $1,940.54 of this sum Ruffner had before that time become surety for Leiths, and as to the remainder of it he was under no obligations prior to the making of the bill of sale. On the twenty-eighth day of October, 1891, Hullman & Cox, creditors not provided for in the bill of sale, attached the stock, and the next day cooperated with Hendrickson, Lefler & Company,- and Robinson, Zimmerman & Company, also creditors not provided for in the bill of sale, whereby the attachment was dismissed and the entire stock obtained from Ruffner by these three firms, they paying him $3,300 cash. This transaction was entered into for the purpose of collecting out of said stock the sums due these firms, aggregating $2,500. At the time of the execution of the bill of sale, principal defendants also executed and delivered to Wood Brothers & Gilmore, two of the codefendants, a real estate mortgage to secure a note of $800, upon the real estate of J. G. Leith one of the *658principal defendants, and also delivered notes aggregating $110, consideration being attorneys fees to the said Wood Brothers & Gilmore, for services already rendered and to pay them for all litigation that should grow out of the original assignment to Buffner, March 31, 1892, complainants obtained judgment against principal defendants in the Circuit Court of Effingham County in the sum of $739.85, on the indebtedness contracted prior to October 1, 1891, and issued an execution thereon April 20, 1892, which execution was returned by the sheriff, no'property found to make the debts or costs, July 11,1892, and in the October term of the Effingham County Circuit Court, filed their creditors bill against J. C. and G. W. Leith, as principal defendants, and among others made H. N. Buffner, Wood Brothers, S. F. Gilmore, Hullman & Cox, Hendrickson, Letter & Company and Bobinson, Zimmerman & Company, codefendants, alleging the recovery of their judgment upon an indebtedness contracted by principal defendants prior to October 1, 1891, the issue of the execution thereon, and returned by the sheriff no property found, and that the said judgment was in full force and effect. Charges the insolvency of the principal defendants, and that the bill of sale to Buffner was made in fraud of the general creditors, appellants being one of them. That the conveyance of said stock of goods by H. N. Buffner to Hullman & Cox, Bobinson, Zimmerman & Company and Hendrickson, Lefler & Company, three codefendants, was fraudulent. That all the conveyances were made subject to the rights of appellants and all other antecedent creditors.

It is contended by appellees that the evidence fails to show' any such fraud in either law or fact as should move a court of equity, and that there is such variance between the proof and the allegations of the bill that complainants can not, in any event, have a decree in this ease.

*659We are of the opinion that the evidence fairly weighed in the light of all the surrounding circumstances shown, fully sustains all the material charges of the bill. The bill of sale and conveyances were in legal effect a void assignment. The evidence also clearly shows the Huffman & Cox, Robinson, Zimmerman & Company, and Hendrickson, Lefler & Company, obtained the stock from Ruffner with full knowledge of his relation to the transaction with Leiths, and therefore their acquisition of the stock was void as to appellants.

The conveyance to Wood Brothers & Gilmore was to secure a payment for legal services principally to be thereafter rendered, and any attempt to prefer them, under the circumstances existing at the time, is void as to appellants. We are of the opinion that the fact that the real estate mortgaged was the individual property of one of the partners, in no manner affects the character of this conveyance in its relation to this case.

The decree of the Circuit Court is reversed and the cause remanded.