[Matthews et al. v. Mauldin et al.] The facts shown by the evidence in the case are substantially as averred in the bill. Upon the final hearing on the pleadings and proof, a decree was rendered, granting the relief prayed for in the bill. Defendants appeal and assign as error said final decree and the rulings upon said demurrers and motions. SOLLIE & KIRKLAND, for appellant.-Surety is a promise to answer for the debt, default or miscarriage of an other.-State v. Parker, 72 Ala. 181. For the obligee to accept a bond and approve it where the principal has not signed it, he thereby permits a fraud on the surety and they are not bound.-Board of Education v. Sweeney, 48 N. W. Rep. 302; Penn v. Hamilton, 27 Grat. Va. Rep. 337; Ward v. Churn, 18 Grat. Va. Rep. 802; 8 Am. Dec. 749; Hall v. Parker, 37 Mich. 590; State Bank v. Evans, 15 N. J. L. 155; People v. Stacy, 74 Cal. 273; Oldham v. Brown, 28 Ohio 41. There must be an order of the probate court discharging the old bondsmen before they are relieved of liability.-Hamner v. Mason, 24 Ala. 480; Jones v. Ritter's Admr., 56 Ala. 289. The money having been converted to the guardian's own use before this appellant signed the bond. Appellant not liable.-Henderson v. Henderson, 58 Ala. 582; May v. Duke, 61 Ala. 63. WORTHY, GARDENER & J. E. ACHER, for other appellants.-Wards must make an election of which sets of sureties they should proceed against.-Lee v. Lee, 67 Ala. 406; Field v. Graves, 68 Ala. 17. Where a new bond is given and the old bond having been relieved, the new bond is liable for misappropriation of the wards, funds before it was given.-Foster v. Wise, 46 Ohio St. 20; Pinkerstaff v. People, 59 Ill. 148; Bobo v. Vaiden, 20 S. C. 271; Morris v. Morris, 9 Hik. 814; Schofield v. Churchhill, 77 N. Y. 565; State v. Burning, 74 Mo. 87; Phillips v. Brazel, 14 Ala. 746; see also Russell v. McDougall, 3 S. Marsh Rep. 234; Governor v. Robbins, 7 Ala. 49; [Matthews et al. v. Mauldin et al.] Steal v. Graves, 68 Ala. 17; Lovelass v. Hutchinson, 106 Ala. 417. FOSTER, SAMFORD & CARROLL, contra.-Wards have a right to bring their guardian and their sureties on his bond to a settlement in the chancery court.-Haley v. Boyd, 64 Ala. 401. A settlement of a guardian is void when made before he resigns or is removed.-Glass v. Glass, 76 Ala. 371; Glass v. Glass, 80 Ala. 242; Lee v. Lee, 67 Ala. 418; Lewis v. Lewis, 57 Ala. 630. It is both proper and important that the sureties on the two bonds should be brought in together in one suit.-Self v. Blount Co., 27 South. 554; Dallas County v. Timberlake, 54 Ala. 403. The second bondsmen of a guardian are liable for funds of the ward converted to the guardian's own use before the taking and approval of the second bond.Whitworth v. Oliver, 39 Ala. 293; Motawell v. Hudson, 80 Ala. 268. ANDERSON, J.-The complainants, minors, filed their bill by next friend, against their guardian and two sets of sureties on his official bonds for the purpose of bringing the said guardian, to a settlement. The jurisdiction of the probate court and the court of chancery are concurrent in matters of guardianship, and the ward has an unqualified right of electing the forum in which he will seek a settlement.-Haley v. Boyd, 64 Ala. 399. And a final settlement made in the probate court by the guardian before his resignation or removal and during the minority of his ward, is void for want of jurisdiction of the probate court.-Glass v. Glass, 80 Ala. 241; Glass v. Glass, 76 Ala. 368; Lewis v. Alred, 57 Ala. 628; Lee v. Lee, 67 Ala. 406. A bill by a ward against the guardian and several sets of sureties on his official bonds, is not liable to objection on ground of misjoinder, multifariousness and want of equity, and the demurrers were properly overruled by the chancellor.-Dallas County v. Timberlake, 54 Ala. 403. When one of the sureties filed his application, under the statute, for release from the old bond, the guardian [Matthews et al. v. Mauldin et al.] was ordered to make a new bond and it appears that the new one was signed by Painter, et al., but that it was never executed by the principal, Matthews. If the bond was not executed by the principal, which fact is undisputed, it is not a statutory bond and did not authorize the issuance of execution under the statute. The bond, however, is good under § 2282 of the Code of 1896 as a common law liability.-Painter v. Mauldin, 119 Ala. 88. The sureties on the old bond are liable for any devastavit prior to their release, and which could not have been sooner than the approval of the new bond, as to any of them. § 2280, Code, 1896. The uncontroverted evidence established the fact, that the conversion of the trust fund was long before the execution, by the sureties of the new bond. Matthews testified that he used $100.09 of the fund as soon as he got it to pay a debt that he owed and deposited the balance with the "Dowling Company" to his individual credit; that it is not now on deposit and that he never used any of the money for the use of his wards. This was clearly a conversion and fastened the liability on the sureties on the old bond. Henderson v. Henderson, 58 Ala. 582;DeJarnett v. DeJarnett, 41 Ala. 708; McLeroy v. Thompson, 42 Ala. 656. The misappropriation having taken place. long before the making of the new bond, the next question presented for our consideration is; are the sureties on the new bond liable? The authorities upon this subject are not entirely harmonious. The prevailing rule, however, and the one to which we adhere, holds them liable, upon the ground of the guardian's obligation to make true account.-15 Am. & Eng. Ency. Law, p. 119 and cases cited in note 4; Whitworth v. Oliver, 39 Ala. 293; Modowell v. Hudson, 80 Ala. 268; Lee v. Lee, 67 Ala. 406. The decree of the chancellor is affirmed. MCCLELLAN, C. J., TYSON, and SIMPSON, J.J., concur ring. [Schwarz, Rosenbaum & Co. et al. v. Barley et al.] Schwarz, Rosenbaum & Co. et al. v. Barley et al. Bill in Equity to set aside Fraudulent Conveyances. 1. Appeal; when taken from decree dismissing bill.—Where a cause in a chancery court is submitted for a decree upon a motion to dismiss for the want of equity, and upon demurrers, and the chancellor renders a decree sustaining the motion to dismiss the bill for the want of equity, and orders that the bill be dismissed out of court, such decree is a final decree, from which an appeal may be prosecuted any time within a year from its rendition. 2 Fraudulent conveyances; sale of property by partnership. Where upon the dissolution of a partnership, it is stipulated in the agreement providing therefor that one of the parties should take the partnership property and pay the partnership debts, and after delivery of the partnership property to him, said partner, so assuming the debt, makes a fraudulent sale of said property, such property, in the hands of the fraudulent vendee, is liable to the payment of the partnership debts, and can be subjected thereto by creditors of the partnership. APPEAL from the Chancery Court of Marengo. The bill in this case was filed by the appellants as creditors of the firm of Barley and Matkins, against the appellees, Eugene A. Barley and Lamar Matkins and Maggie Walston. It was averred in the bill that the complainants were creditors of the firm of Barley and Matkins, which firm was composed of the defendants, Eugene A. Barley and Lamar Matkins; that subsequent to the complainants becoming creditors of said firm, there was a dissolution of the firm by mutual agreement between the parties, in which agreement it was agreed and understood between them that the said Lamar Matkins should assume and pay all indebtedness of said partnership; that Barley should retire from the firm, and that by virtue of said [Schwarz, Rosenbaum & Co. et al. v. Barley et al.] agreement of dissolution, the partnership debt should be assumed and paid by said Matkins; that a short time after said dissolution, the defendant, Matkins, in disregard of said agreement, and with the intent to hinder, delay and defraud the creditors of said firm, did execute to Mrs. Maggie Walston a bill of sale of all of the stock of goods, wares, merchandise, etc., which formerly belonged to said firm; said property amounting to $895.79; that the consideration of said transfer was an alleged indebtedness which the said Matkins claimed to owe Mrs. Walston. It was then averred that said consideration as expressed in the bill of sale was simulated and fraudulent, and that said sale was fraudulent and void, and was made for the purpose of hindering delaying and defrauding the creditors of said partnership; and that as a term of said sale, the said Matkins reserved a benefit in that he was to take charge of and sell said goods, and retain a part of the purchase money thereof for his service. It was further averred in the bill that since said sale to Mrs. Walston, she and the plaintiff, Matkins, had disposed of all or nearly all of the said goods. The prayer of the bill was that said sale from Matkins to Mrs. Walston be declared fraudulent, null and void, and that a personal judgment be rendered against Mrs. Walston for the amount of the property which had been sold and conveyed by her, and that the balance of the goods remaining unsold be subject to the payment of complainants' debt. The defendants moved to dismiss the bill for the want of equity, and upon the ground stated in varying averments that the property conveyed by Matkins to Mrs. Walston was the separate property of Matkins, and as it was shown not to exceed in value $1,000. the complainants could not complain of said sale, because the said Matkins was entitled to claim the same as exempt to him. The defendants also demurred to the bill upon the same ground. On the submission of the cause upon the motions to dismiss and the demurrers, the Chancellor rendered the following decree: |