
    Dyer & Gheesling v. Dyer.
    May 15, 1912.
    Claim. Before Judge Walker. Warren superior court. April 11, 1911.
    
      L. D. McGregor, for plaintiffs in error. M, L. Felts, contra.
   Beck, J.

M. A. Dyer and J. T. Gheesling were partners doing a mercantile business under the firm name of Dyer & Gheesling. The latter sold his entire interest in tl^e business and the firm assets to the other partner, it being stipulated that the purchaser of the retiring partner’s interest “is to pay the partnership debts.” Subsequently to the sale Dyer, the purchaser, executed a mortgage covering the entire stock of merchandise; and when this mortgage was foreclosed and the mortgage fi. fa. levied, Gheesling filed a claim thereto in the name of the former partnership, Dyer & Gheesling. Held, that the court, to whom the case was submitted under the law and the facts without the intervention of a jury, did not err in finding the property subject. Whether Gheesling could have maintained an equitable action or not, to compel the application of the assets to the payment of the firm debts, he could not maintain a claim in the name of the firm, although Dyer was insolvent and had not complied with his obligation to pay the firm debts.

Judgment affirmed.

All the Justices concur.  