As the cause must be remanded for a new trial upon the question of fact as to whether or not the holding of the vendees of Brooks was adverse to the church and had ripened into title, we think it not improper to declare the law applicable to that issue, a clear statement of which is found in 1 Ruling Case Law, § 68, in the article on Adverse Possession and under the sub-title, "Whether Tenant May Hold Adversely," and the rule was there announced as follows:

"As a general rule, the possession of a tenant is that of his landlord, and will be so deemed until the contrary appears. This rule affects all who may succeed to the possession, immediately or remotely, through or under the tenant. Therefore, so long as the relation of landlord and tenant exists, the tenant can not acquire an adverse title as against his landlord. This is merely one application of the rule that the tenant can not deny his landlord's title. It is equally well settled that one who enters as tenant is not, merely because of that fact, precluded from subsequently holding adversely to his landlord. To do so, however, it is necessary to renounce the idea of holding as tenant, and to set up and assert an exclusive right in himself. It is also essential that the landlord should have actual notice of the tenant's claim, or that the tenant's acts of ownership should be of such an open, notorious, and hostile character that the landlord must have known of it. Such conduct on the part of the tenant necessarily furnishes the landlord with the legal title to enter and repossess himself of the premises. So, a third person may set up, as against the landlord, an outstanding adverse title purchased from the tenant without notice of the tenancy.'

(4) The case of Singer v. Naron, 99 Ark. 446, discusses and reviews a number of cases involving the principle which will control in the decision of this case. The case just cited is authority for the statement that the church is not constructively affected with notice of the conveyances from Brooks to appellants and their predecessors in title from the mere fact that these deeds were

recorded, because they are not in the chain of the church's title; but these deeds are admissible in evidence for the purpose of showing the character of the possession. And it is true that it having been shown that Brooks entered into the permissive possession of the land, the presumption is that his subsequent possession and that of those claiming under him was in subordination to the church's title and pursuant to this permission. But this presumption may be overthrown by the evidence, and the jury should find that it was overthrown, and that the possession was adverse, if they should find the fact to be that the trustees of the church had actual notice of this adverse possession, or that defendants' occupancy had been so inconsistent with the presumption of a permissive possession as to impute knowledge to the trustees of that hostility. If the jury should find the fact to be that appellant's occupancy of the land was of such a character as to be entirely inconsistent with the idea of a permissive possession, and that it was so continued for the full statutory period, then they should find for the appellants.

For the error indicated, the judgment will be reversed and the cause remanded for a new trial.

1.

2.

3.

4.

SMITH V. SPINNENWEBER.

Opinion delivered October 19, 1914.

GARNISHMENT-JUDGMENT AGAINST DEFENDANT NECESSARY PARTIES. -A valid judgment can not be rendered against the garnishee where no judgment has been rendered against one of two defendants, who is an indispensible party to the suit.

GARNISHMENTS-DEBTOR NOT A PARTY-REVERSAL-RELEASE OF GARNISHEE. Where judgment was improperly rendered against a garnishee the principal debtor not having been made a party, upon reversal of the cause the debtor may be made a party, and the garnishee is not entitled to an absolute discharge pending the making of the debtor a party.

GARNISHMENT-OVERDUE NOTE.-An overdue, negotiable, promissory note, still in the hands of the payee, is subject to garnishment. GARNISHMENT--NOTE-FRAUDULENT TRANSFER.Where a note is tranferred for the purpose of defrauding creditors, the same may be reached by garnishment.

5.

PARTNERSHIP DEBT OF PARTNER-TRANSFER OF PROPERTY.-Partnership property may by consent of the partners, be appropriated to individual indebtedness, and where property has been so transferred, the equity of the partnership creditor is lost.

Appeal from Randolph Circuit Court; J. W. Meeks, Judge; reversed.

S. A. D. Eaton, for appellant Ellis.

1. A judgment against the partnership in favor of the appellees is a prerequisite to a valid judgment against the garnishee. 62 Ark. 616; 70 Ark. 127. A writ of garnishment must have a judgment to support it. 31 Ark. 652.

2. The court erred in refusing to charge the jury that before they would be authorized to find for the plaintiffs, they must find from the evidence that Ellis on or subsequent to, the 9th day of December, 1912, was indebted to W. A. Smith & Bro. in some amount, or had in his possession a promissory note belonging to W. A. Smith & Bro. 76 Ark, 98.

3. Instructions 1 and 2, given by the court, are both erroneous. As to instruction 1, the note was transferred before maturity, and it is conceded that it was in appellant's possession, which was presumptive evidence of his ownership, at the commencement of the garnishment proceedings. The burden of proving his want of ownership was on the appellees. 2 Enc. of Evidence, 517 et seq. An endorsement purporting to transfer a negotiable note is presumed to be genuine, and to import value. Litt. Sel. Cas. (Ky.) 208; 37 Minn. 404; 4 Ark. 535; 9 Ala 638; 22 La. Ann. 457; 51 Miss. 55; 29 Ore. 483. As to instruction 2, there was an entire want of evidence on which to base it. 63 Ark. 177; Id. 563; 70 Ark. 99; Id. 441; 71 Ark. 351.

C. H. Henderson, for appellees.

1. Judgment was obtained against the partner who remained, six months before the garnishment proceeding was brought to trial. Plaintiff could not be expected

to do more than obtain judgment against who remained within the jurisdiction of the court, and the fact that one of the partners fled from the State apparently to avoid his creditors, should not deprive the court of its jurisdiction. Garnishment is a suit and not a process or execution. 24 Fed. Cas. No. 14239, Hempst. 662; 20 Cyc. 978.

2. The burden was upon the garnishee to show that he was an innocent purchaser of the note for value, and that issue was submitted to the jury and found against him. 39 Ark. 97; 90 Ark. 93; 107 Ark. 581.

3. The evidence warrants no other conclusion than that Smith and Ellis, realizing the precarious condition of the assets of the partnership, made a transfer of this note to Ellis as a gift and to avoid the seizure of the same by the creditors. Such assignment was fraudulent and void as to the creditors. 20 Wis. 311; 20 Cyc. 1017; 35 Vt. 39; 87 Ala. 58.

4. The assignment, if made, was to satisfy an individual indebtedness of W. A. Smith, and was, therefore, void, unless consented to by the other partner. Parsons on Partnerships, 202-13; 52 Ark. 558; 104 Ark. 109; 40 Ark. 551; 93 Ark. 57; 84 Ark. 172; 20 Cyc. 1029; Id. 993.

MCCULLOCH, C. J. This is an action instituted in the circuit court of Randolph County by the plaintiffs, Spinnenweber & Peters, against the defendants, W. A. Smith and J. B. Smith, as copartners under the firm name of W. A. Smith & Bro., to recover the sum of $150 alleged to be due on account for rent of a farm and the price of timber sold. A garnishment was sued out at the commencement of the action against E. N. Ellis and A. H. Fredricks as garnishees and interrogatories were filed against them, to which they made response. One of the defendants, J. B. Smith, was served with process, and the action proceeded to final judgment against him, but there was no service, either actual or constructive, against W. A. Smith, the other defendant. Defendant J. B. Smith filed an answer denying that he was a mem

ber of the firm of W. A. Smith & Bro. or that he was indebted to the plaintiffs in any sum. There was a separate trial of the issue between the plaintiffs and J. B. Smith which resulted in a verdict and judgment in favor of the plaintiffs for the amount of their claim.

E. N. Ellis, one of the garnishees, filed a separate response and intervention, in which it appears that the other garnishee, Fredricks, executed a negotiable promissory note to W. A. Smith & Bro. for the sum of $150, that the same had been transferred by a proper indorsement on the note to garnishee Ellis, and that he is now the holder of the same for a valuable consideration. The said garnishee contends that the note was transferred to him before maturity for a valuable consideration, but the note was overdue and unpaid in his hands at the time of the trial below. There was a trial of the issue between the plaintiff and the garnishees before a jury and the verdict was in favor of the plaintiffs against both the garnishees in the sum of $100. The court thereupon rendered judgment against both garnishees for the sum named in the verdict. Garnishee Ellis alone has appealed.

(1) It is insisted in the first place that final judgment should not have been rendered against the garnishees until judgment was rendered against the defendants, and we are of the opinion that this contention is well founded. There was a judgment against J. B. Smith, one of the defendants, but in his answer he disclaimed any interest in the partnership assets; and even though the jury decided against him as to liability for plaintiffs' debt, it does not follow that this obviated the necessity of bringing in, by proper process, the other defendant, who confessedly is a member of the firm and interested in the note, if the assignment to garnishee Ellis is not valid. any rate, it was improper to proceed with the trial of the rights of the garnishee without bringing in W. A. Smith, one of the original debtors, as he was a party in interest. and is not bound by the judgment of the court rendered

At