The appellants brought this action against the appellees, to set aside a certain conveyance of land as fraudulent and voidable, and to subject the land to the-payment of certain debts.
Issue; trial by jury; verdict, and judgment for the defendants.
The only question involved is whether the court erred in overruling th.e appellants’ motion for a new trial, made on the ground that the verdict was not sustained by the evidence.
The appellants were judgment creditors of the partnership firm of Mitchell & Crowley, consisting of Robert Mitchell and Octavius A. Crowley. The property conveyed was not partnership property, but the individual property of Robert Mitchell. The latter conveyed it to his minor children, named respectively Plorenee, Bell and Kate Mitchell.
It was alleged that the conveyance was voluntary, and made with the intent to hinder and delay the plaintiffs in the collection of their debts.
The court below, in passing upon the motion for a new trial, expressed a doubt as to the sufficiency of the complaint, in this, that it did not contain an allegation that Mitchell had no individual creditors, remarking that, “ if he has individual debts equal to the value of the land in controversy, the plaintiffs, being pártnership -creditors, are probably not injured.”
It is well settled, as a general rule, that partnership *487property must be first applied to the payment of partner-, ship debts, and individual property to the payment of in* dividual debts; and this rule is applicable where the principles of a court of equity are invoked in reaching and making distribution of assets, as in setting aside fraudulent conveyances at the instance of creditors. McDonald v. Beach, 2 Blackf. 55 ; Weyer v. Thornburgh, 15 Ind. 124; Schœffer v. Fithian, 17 Ind. 463; Blake, v. Faulkner, 18 Ind. 47 ; Kistner v. Sindlinger, 33 Ind. 114 ; Bond v. Nave, 62 Ind. 505.
It would seem,therefore, that if Mitchell had individual creditors at the time of the conveyance, to the amount of the value of the land m controversy, they would be entitled to have it applied to the payment of their claims, in ease the conveyance should be deemed fraudulent, to the exclusion of the partnership creditors. And if such individual creditors should see proper to forego their rights, and suffer the conveyance to stand, it is not perceived that this would give partnership creditors a right, in place of the individual creditors, to attack the conveyance.
But, upon the question of pleading suggested, we express no opinion. It does not seem to have been made, and was not decided in the court below.
It might be prudent, in a complaint by partnership creditors to set aside a conveyance of individual property, to allege that there were no creditors of the individual; but whether such allegation is essential, or whether the complaint might be deemed good without it, leaving the fact of the existence of such, creditors, where such is the fact, to be shown in defence, we do not decide. Probably, the partnership and individual creditors might join in such action, so that the proceeds of the property, after paying individual debts, might be applied to the payment of partnership debts.
But there ivas evidence tending, to show- that Mitchell, *488at the time of the conveyance in question, owed individual debts, though the amount thereof is not certain. . Octavius A. Crowley, one of the partners, testified as a witness in the cause, and, after, stating the estimate he. put upon the value of the partnership property held at the. time of the execution of the conveyance in question, and stating the amount of the partnership debts at that time, said : “ In my estimate, of the debts of the- firm I do not include any individual debts of myself or Mitchell; we both owed considerable individual debts.” If, therefore, the ■plaintiffs had succeeded in the acticn, they might have obtained a judgment to which they were, not entitled, by reason of the right of the individual creditors of Mitchell to priority of payment out of the proceeds of the property.
But, aside from this view, we are inclined to the opinion, that the verdict of the jury ought not to be disturbed on the evidence.
It is well settled that a conveyance of property will not be held fraudulent as agaiust creditors, though voluntary, if the party making it had property left amply sufficient for the payment of all- his debts. Sherman v. Hogland, 54 Ind. 578, and cases there cited. See, also, Evans, v. Hamilton, 56 Ind. 34; Romine v. Romine, 59 Ind. 346 ;. Deutsch v. Korsmeier, 59 Ind. 373.
There was evidence tending to show that, at the. time of the conveyance, in question, the partnership property held by the firm exceeded in value the amount, of the partnership debts by several thousand dollars, and was apparently amply sufficient to pay all the partnership debts. There was, a considerable difference m the opinion of witnesses, as to the value of the partnership property, but the jury had evidence before them, as to its value, sufficient to justify the verdict. The amount which property brings at a sale upon execution is not the sole crite*489rion by which to determine its value, even if it can ho regarded at all as evidence of value.
The good faith of the transaction must be judged of by the condition of things at the time the conveyance was made. A conveyance is not to be adjudged fraudulent as against creditors, simply because it is voluntary. Whether it is fraudulent, is a question of fact. Pence v. Croan, 51 Ind. 336.
It follows that the question of the good faith of the transaction must be referred to the time the convej’ance was made; and, if then made in good faith, without any intent to cheat, hinder, delay or defraud creditors, it can not be subsequently rendered fraudulent by the fact that the property of the firm may have tailed to bring enough, at sale upon execution, to pay the debts of the firm.
We are of opinion, as before intimated, that the judgment below must be affirmed ; hut the affirmance will not, of course, affect the rights of the individual creditors of Mitchell, they not being parties to the action, nor prevent them from attacking the conveyance, if they shall see cause to do so, and can establish its fraudulent character as to them.
The judgment below is affirmed, with costs.