Corbin et al. v. McChesney. be shown a bona fide indebtedness existed to Jones, and then it would be considered as a mortgage to secure Jones in the payment of his debt, asserted to be due from Strader to him. If Jones was a bona fide creditor of Strader, then the deed ought to have the effect of a mortgage, though absolute on its face. If Jones was not such creditor, then the conveyance was fraudulent and void, as designed to hinder, delay and defraud creditors. The cause will be remanded to the Kane Circuit Court, with directions to refer it to the master in chancery, who will ascertain the amount actually and bona fide due Jones from Strader, at the time of the execution of the deed by Strader to Jones, and if any bona fide indebtedness shall be found to exist, and anything shall be found due, upon proper proof being made, then the deed will be decreed by the Circuit Court to be a mortgage, and it will stand as such for the amount proved. If nothing shall be found due at that date, then the deed will be adjudged fraudulent and void, as against bona fide creditors. Decree reversed. DANIEL W. CORBIN et al., Plaintiffs in Error, v. HIRAM ERROR TO THE SUPERIOR COURT OF CHICAGO. Where a credit to another is entered on the books of copartnership, to satisfy a debt due from one of the copartners, leaving an excess due to the creditor of the copartner, he may recover such excess from the firm, if the transaction has been ratified by the copartners, without any writing, in compliance with the statute of frauds. THIS was an action of assumpsit tried before VAN H. HIGGINS, one of the judges of said court, without a jury. The only contest was as to one item of plaintiff's account. Defendants had been partners in the name of D. W. Corbin & Co., and as such, had dealings with the plaintiff, in which plaintiff became indebted to the defendants in the sum of about $60, excluding the sum of $119 in dispute. Duffy was indebted to the plaintiff in the sum of $119, and by his direction, the book-keeper credited the plaintiff. and charged Duffy with that sum on the books of the defendants. There is evidence as to the knowledge of Corbin that such credit had been made, and of his ratification of the same, but no evidence of any writing signed by him; and thereupon his counsel objected that the plaintiff could not recover against him, 26 231 47a 515 because there was no note or memorandum in writing signed by him, containing any promise or agreement to pay the debt of his co-defendant Duffy. But the court decided that the original debt of the defendant Duffy was extinguished, and the new debt of the defendants substituted therefor; and that no note or memorandum in writing was necessary to bind the defendant Corbin. The court found for the plaintiff, and the defendants excepted. Defendants also moved for a new trial, because inter alia the court erred as to the law of the case upon the statute of frauds, which motion the court overruled, and defendants excepted. Defendants bring the cause to this court by writ of error, and assign for error: That the court erred in deciding that no note or memorandum in writing was necessary to bind the defendant Corbin. That the court erred in rendering judgment for the plaintiff. VAN BUREN & GARY, for Plaintiffs in Error. M. W. FULLER, for Defendant in Error. WALKER, J. The assignment of errors in this case, questions the correctness of the judgment, because there was not a promise in writing, that the firm would pay the debt of one of the partners. From the evidence, it appears that Duffy was indebted to defendant in error, in the sum of $119, and that by mutual agreement between them, this sum was credited on McChesney's account with the firm, which left a balance due on the account, of $55.65. It is true that the evidence fails to show that Corbin, the partner of Duffy, was present, or consented at the time to this arrrangement, but we think the evidence does show that he afterwards became aware of, and assented to the arrangement. When he settled with Duffy, on the dissolution of the partnership, he received firm assets to pay this and other liabilities of the firm. Indeed, it is not denied, that he became aware of the arrangement, ratified it, and received the funds for its payment. He, by agreeing to pay the debts of the firm, agreed to pay it out of the assets in his hands. If this arrangement was made with Corbin's assent, or he afterwards ratified it, and by the arrangement Duffy was discharged individually from further liability to McChesney, there can be no doubt that the firm became liable for the payment of the debt to McChesney. Chitty on Contracts, p. 482. When three persons are mutually indebted to each other, and they agree that the indebtedness of all but one shall be cancelled, Moline Water Power and Manufacturing Co., impl., etc., v. Webster. and that he shall pay the debt to the only remaining creditor, under the agreement, it is binding, although not in writing. Ibid. Whilst it is generally true, that a partner cannot appropriate the funds of the firm to pay his debts, or employ its credit for his individual interest, yet if either is done with the assent of the other member of the firm, or it is ratified by him, the firm will be held liable. The law will not permit a firm to perpetrate a fraud, by lending its credit to one of the partners, to procure means, and afterwards avoid the liability by saying that it was incurred for the individual benefit of one of the partners; or, when the partner has used the credit of the firm for his separate interest, and the other partner ratifies the act, permit the firm to avoid its payment. This case comes, we think, fully within this rule, as Corbin fully ratified the transfer of the debt of Duffy, to the firm, and in the settlement with Duffy, on the dissolution of the firm, received the funds from the firm to pay and discharge this very debt. This is the fair and reasonable presumption, from the evidence, as he promised to pay all of the firm indebtedness, this included. If he has received the funds for its payment, it would be unjust to permit the firm to escape its payment, and permit him to retain the funds. He admitted the firm owed defendant in error, and this, too, after this suit was instituted, and under the facts disclosed, we are unable to see that this case falls within the operation of the statute of frauds and perjuries, and we must hold that the promise of the firm was binding, although not in writing. It might have been deficient, if the arrangement had been to bind Corbin alone, but we refrain from indicating any opinion on that question. The judgment of the court below is affirmed. Judgment affirmed. THE MOLINE WATER POWER AND MANUFACTURING COM- e114a1594 APPEAL FROM ROCK ISLAND. A proceeding by an administrator to sell real estate is not a chancery proceeding. An allowance by the proba e court of a claim against an estate is not conclusive against an heir in this proceeding, and he may contest its validity. Equitable claims may be allowed by the probate court, and it would seem that real estate may be sold for their payment. Moline Water Power and Manufacturing Co., impl., etc., v. Webster. Debts against a copartnership of which a decedent was a member, the partnership assets being exhausted, may become equitable claims against his estate, but not to be paid until after his individual debts have been liquidated. An order for the sale of the real estate of a decedent must specify whether it shall be sold for cash or on a credit, and on what credit. ALFRED WEBSTER, as administrator de bonis non, filed with the County Court of Rock Island his petition, substantially as follows: To the Hon. Cornelius Lynde, Jr., Judge, etc., and alleges, in substance, that D. Benton Pitts died December 8th, A. D. 1857; that January 12th, 1858, Cyrus Pitts was appointed administrator of the personalty, etc.; that said Cyrus Pitts made an inventory and caused an appraisement bill of the personal estate, and credits of said D. Benton Pitts, to be made; that the appraisement bill amounts to $542.10, besides claims amounting to $234; that said C. Pitts disposed of personal property and claims, to the amount of $451.43, and paid indebtedness to the amount of $264.04; that petitioner was ap pointed administrator de bonis non Oct. 22nd, 1859; that petitioner has received from said Cyrus Pitts, personalty and claims amounting to $276.54, and also claims to the amount of $167.75, of doubtful value, "and that said personal property and claims now in your petitioner's possession as aforesaid, is all of the personal property and claims belonging to the said estate, and all that will be available for the payment of the indebtedness of said estate ;" and there exist unpaid claims allowed against the estate, to the amount of $25.711.58, and the further sum of $10,000, of claims not allowed, and for necessary expenses of administration; that petitioner has rendered a full and true account of the personal property, and has applied the same, so far as collected, to the payment of the debts, and there is a deficiency of the personal property to pay the debts of the intestate; "that the said D. Benton Pitts died seized in fee simple of certain real estate in said county situate, which said real estate is set out and described in a schedule thereof hereunto attached, marked Schedule B,' and made part of this petition; that deceased left as his heirs, Hiram Pitts, Cyrus Pitts, Gideon Pitts, Caroline E. P. Gilbert, and Elias S. Gilbert. That one Harvey George, and the Moline Water Power and Manufacturing Company, a corporation under and by virtue of the laws of this State, are in possession of a portion of said real estate, and, as your petitioner is informed. and believes, claim title to some portion thereof, but your petitioner avers that their claim of title, of whatever nature it may be, is subject to the rights of your petitioner as administrator as aforesaid." Prays that Hiram Pitts, Gideon Pitts, Cyrus Moline Water Power and Manufacturing Co., impl., etc., v. Webster. Pitts, Elias S. Gilbert, Caroline E. P. Gilbert, Harvey George and the appellant here, may be summoned and required to defend the same, or that their rights in the premises be forever barred; and that the court will order a sale of so much of said real estate as may be sufficient to pay the debts of said estate, etc. Also "Schedule A," of claims allowed against the petitioner in the County Court of Rock Island county, amounting to $25,711.58. Also "Schedule B," describing real estate which belonged to D. B. Pitts at his decease. To this petition was filed an answer, as follows: "The answer of the Moline Water Power and Manufacturing Company, a corporation, etc., to the petition of Alfred Webster, Esq., administrator de bonis non of the estate of D. Benton Pitts, for an order to sell certain real estate for the payment of debts of his intestate." Reserves all right of exception, etc.; admits the death of D. Benton Pitts, and the appointment of Cyrus Pitts administrator, as alleged in the petition; admits that Cyrus Pitts made an inventory of part of the personalty of his intestate, and of certain credits, and lands, but denies that the inventory was full, true or correct, in respect to the personalty, or that the lands were ever the lands of D. Benton Pitts; denies that any appraisement bill of the personalty was ever made; admits that Cyrus Pitts, as administrator, disposed of property and credits to the amount of $451.43, but denies that he paid any indebtedness; admits the appointment of petitioner as administrator, but alleges that whether petitioner has received from Cyrus Pitts any personalty or credits, or whether upon the same if any will be realized any sum, respondent neither knows nor is informed, save as in and by the petition, nor has respondent any belief, but denies that said personalty and claims alleged in the petition to be in the petitioner's petition, is all of the personalty and claims belonging to the estate of said D. Benton Pitts that will be available for the payment of debts; admits that the items of indebtedness in the schedule A attached to the petition have been allowed against the petition; that respondent is informed that the orders and judgments of the court allowing the same are not final upon this respondent, and that all of said claims except the sum of $886.93, therein mentioned as allowed. to D. K. Hawks, and the sum of $35, allowed to W. C. Gibson, were illegally allowed, and that the judgments and orders of the court allowing the same, are void as against the respondent; denies that there are still existing and not allowed against the estate, debts of said D. Benton Pitts, amounting to the sum of $10,000, or to any sum, and as to whether there are due any |