delivered the opinion of the Court.
It is a good defense to an action on the bond of a sheriff for failure to levy an execution that the property which the plaintiffs in the execution sought to have levied upon was not the property of the defendant in the execution. 22 Amer. & Eng. Ency of Law, p. 544, and cases cited in note 3. When, as in the case at bar, indemnity is offered, the sheriff, in order to establish the defense, must prove that the property did not belong to the judgment debtor. 22 Amer. & Eng. Ency of Law, supra.
As establishing this ground of defense, the sheriff (appellee) introduced in evidence a bill of sale to which was attached the signature of the firm and which was also signed by the members of the firm (defendants in the execution), showing a sale of the goods in question to H. H. Newell, John Thess and John Nickerson for the sum of $350, and proved that possession of the goods passed under the said bill of sale to said Newell, Thess and Nickerson some two weeks before the judgment in favor of the appellant was confessed. The appellant contended that the sale was fraudulent and void as to creditors, because (1) the consideration was grossly inadequate; (2) that the sale was negotiated with but one of the partners in the bill of sale in payment of claims amounting to $350, due to them from the firm; (3) that the sale was upon condition that the goods should be sold by the vendees named in the bill of sale and the proceeds applied as far as necessary to the payment of the claims of Newell, Thess and Nickerson against the firm and the remainder returned to the members of the firm. The trial court rightly held that under the evidence the sale could not be branded as fraudulent upon the ground that the consideration was inadequate. It appeared that the vendees retained the stock of goods for more than two weeks, during which time they sought diligently to secure a buyer and finally closed out the entire stock at $400. Miss Straley testified that, in her opinion, the goods were worth much more, but two witnesses, both milliners, were of opinion that $400 was their full value. As to the second and third grounds of attack upon the validity of the sale it appeared that Mrs. Schlagel, in the absence of her partner, sold and delivered the goods to the purchaser in payment of bona fide debts due them from the firm. She executed a bill of sale in the name of the firm, and also signed her name to it and delivered it and the goods to the purchasers. It is not contended that any secret agreement ivas made with her or that any promises were given to her to return the excess of the proeeeds of the sale to her and partner or either of them. It was an absolute, unconditional and completed sale so far as one member of the firm could lawfully conclude such a transaction. The power of a partner in this regard seems to be settled in this State by the case of Hanchett v. Gardner et al., 138 Ill. 591, where it was said: “ The rule is a just one, and supported by the weight of authority, and is that a sale made by one partner of the assets of a firm in payment of a bona fide existing firm debt to a creditor Avithout notice, is valid, and that a fair sale made in good faith to .an existing bona fide creditor by one partner without the consent of the other may, under circumstances of notice to the purchaser or transferee be questioned by the non-assenting partners, but it is good as to all third persons.” In the same case it Avas ruled that a creditor has the right to seek and obtain from his debtor a preference for the payment of his own debts to the exclusion of other creditors, and that Avithout the imputation of fraud upon either party. Appellant, however, claims that the signature of the other partner, Miss Straley, was obtained to the bill of sale under secret contract and agreement that the members of the firm reserved and were to receive the proceeds of any sale made of the goods in excess of the amounts of the debts due from the firm to the transferees. There was evidence tending to show that after the execution of the bill of sale and the delivery of the goods to the transferee by one partner that some such promises were made to the other partner, or perhaps at other later times, to both partners. But this Avas after the completion of an absolute, unconditional and valid sale and delivery of the goods. Whether whatever' was clone and said after the sale had been so completed may be availed of by the partners as against the transferee need not be considered. It is certain it could not operate retroactively upon the sale and avoid it in favor of and upon the application of a creditor of the firm.
The propositions of law held by the court covered the legal principles sought to be presented in the propositions that were refused, so far as they were applicable to the case.
Ho reasons appear for interference with the judgment. It will be affirmed.