Bond et al. v. Nave et al. jected as evidence an inventory filed in the court of common pleas by James A. Wilson, after the dissolution of the partnership, and after the death of Edward Wilson, purporting to contain the assets of the partnership, and as being filed by James A. Wilson as surviving partner. There is no error in this ruling. The inventory was no more than an implied admission of the partnership by James A. Wilson, made after its dissolution. Such an admission would not be evidence either to prove the partnership as against Edward Wilson, or to bind the creditors of the partnership, as against the creditors of Edward Wilson individually. 6. The overruling of the demurrer to the fourth paragraph of answer was excepted to below, and assigned for error here. This paragraph denied the partnership of Edward and James A. Wilson, and averred that the claims. of the appellees were against Edward Wilson alone, and not against the alleged firm of "Wilson & Son." This is a good answer. The simple denial of the partnership made it sufficient; and if the claims of the appellees were against Edward Wilson alone, instead of against the firm of Wilson & Son, then there would be no preference of payment in favor of the claims of the appellants over those of the appellees, unless they were shown to be preferred claims. 7. The overruling of the demurrer to the fifth paragraph of answer is also presented as a question for our decision. That paragraph was pleaded only as to the claim of the estate of John Navé against the estate of Edward Wilson. It sets up the proceedings, trial and judgment of the court against the individual estate of Edward Wilson, founded on certain promissory notes, showing upon the pleadings, that there was no preference over it, in favor of the claims of appellants. These facts, which are all alleged in due form, constitute a good defence. The demurrer was rightly overruled. If the claims of the appel Taylor et ux. v. Watkins. lants had no preference over those of the appellees, the case could not be maintained. 8. That the verdict of the jury is contrary to law, that the verdict of the jury is not sustained by sufficient evidence, that the verdict of the jury is contrary to the evidence, that the verdict of the jury is contrary to law and evidence, are all propositions urged by the appellants, and may be considered together. We can not see wherein the verdict is contrary to law; and, as to the questions arising upon the evidence, there is evidence tending to prove every point; it was submitted to the jury; upon it they found their verdict; it was approved by the court; and, according to the rule which we have repeated so often that it has become familiar to all, there is no judicial ground upon which we, as an appellate court, can disturb the judgment upon a question of evidence. We find no error in the record. The judgment is affirmed, at the costs of the appellants. Opinion filed at May term, 1878. Petition for a rehearing overruled at November term, 1878. TAYLOR ET UX. v. WATKINS. MORTGAGE.-Setting Aside Judgment of Foreclosure.-Excusable Neglect.— When Building is not Fixture.—Pleading.-In a complaint by a husband and wife, under section 99 of the code, 2 R. S. 1876, p. 82, to set aside a judgment of foreclosure rendered against them by default in favor of the mortgagee, it was alleged, in substance, that, during the pendency of said suit, the husband was exceedingly sick, and wholly unable to provide for his defence to said suit; that the wife knew nothing of any defence to said suit, and was too much occupied in attending to her husband during his sickness to make any arrangements for the defence of said suit, even had she possessed such knowledge; that, at the time said mortgage was Taylor et ux. v. Watkins. executed, there were upon the lands embraced therein a portable steam sawmill, boiler, engine, etc., which were personal property, and had always been so treated, and had been moved from time to time, and were attached to said real estate only to the extent necessary to steady the machinery of said mill, and could be removed when desired without injury to said real estate; that said mortgage did not, and was not to, include said mill, and the mortgagors were ignorant that it was so claimed; that it was alleged in the complaint on which said judgment was rendered, that said mill was covered by and included in said mortgage, and that said judgment embraced said mill, and it was sold by the sheriff, with the real estate upon which it was standing, to the mortgagee, etc. Held, that the complaint contained facts sufficient to put the mortgagee upon his defence, and was good on demurrer. Held, also, that the allegations of the complaint show the mill in question to have been personal property and not subject to the mortgage. From the Brown Circuit Court. A. W. Prather, for appellants. NIBLACK, J.-This was a proceeding by John H. Taylor and Serena H. Taylor, his wife, against Joseph Watkins, under section 99 of the code, 2 R. S. 1876, p. 82, to set aside a judgment of foreclosure rendered against them upon default. The complaint, which was verified by affidavit, was, in substance: That, on the 5th day of June, 1874, the said John H. Taylor executed and delivered to the defendant, Watkins, his promissory note, promising to pay the said defendant the sum of twelve hundred dollars, twelve months after date, without relief from valuation or appraisement laws, at ten per cent. interest and reasonable fees for the plaintiff's attorney, if suit should be instituted on said note; that, to secure the payment of said note, the said John H. Taylor, together with the said Serena H. Taylor, who was then and has since continued to be his wife, executed to the defendant a mortgage on some small tracts of land, containing in all about twenty-seven acres, giving a particular description of each tract; that, on the Taylor et ux. v. Watkins. 11th day of June, June, 1875, the defendant brought suit in the Brown Circuit Court on said note and to foreclose said mortgage; that said plaintiffs were on that day served with a summons to appear and answer in said action; that, for reasons hereinafter stated, the plaintiff's did not appear to said action, but wholly made default, and that upon such default judgment was rendered against the said John H. Taylor on said note, on the 21st day of June, 1875, for twelve hundred and eighty-eight dollars and sixty cents. and costs, and against both the plaintiffs for the foreclosure of said mortgage and for the sale of the lands therein described, to pay the judgment on said note; that, on the 27th day of June, 1875, the defendant caused a copy of said judgment of foreclosure to be issued and placed in the hands of the sheriff of Brown county who thereupon advertised the lands so ordered to be sold for sale in due form of law, setting the day of sale for the 28th day of August, 1875; that, on the day last named, said sheriff offered said lands for sale, in the manner prescribed by law, and sold the same to the defendant for thirteen hundred and seventy-eight dollars and twenty-five cents, being the full amount then due on said judgment of foreclosure for principal, interest and costs, a certificate of which said sale was issued by said sheriff, to the defendant, copies of which proceedings, judgment, and return of the sheriff were filed with, and made a part of, the complaint; that, at the time of the commencement of the suit on said note and mortgage, and at the time the summons in said suit was served upon the plaintiffs, and for four months prior thereto and two months thereafter, the said John H. Taylor was sick, so that the greater portion of the time, that is to say, from the 1st day of May, 1875, until the 1st day of August in the same year, he was not expected to recover from said sickness; that, for all the time the said John H. Taylor was so sick, he was confined to his bed at VOL. LXII.-33 Taylor et ux. v. Watkins. his home, in Georgetown, in said county of Brown, five miles from Nashville, the county-seat of said county, where said judgment of foreclosure was rendered; that his, the said John H. Taylor's, sickness was of such a character as to render him unable to attend to business, and to so prostrate him, that, when the summons was served on him, as above set forth, his mind was so affected that he could not have transacted any business intelligently, and that he continued in that condition for six weeks thereafter, suffering intense pain, and sometimes wholly unconscious; that, by reason of his said condition, he was, both mentally and physically, incapable of either directing or dictating the employment of counsel, or otherwise providing for his defence to said action; that he had only an indistinct recollection that said summons had been served upon him; that the said Serena H. Taylor knew nothing of the facts in relation to the agreement between her husband and the defendant, of her own knowledge, and was not informed as to any defence her husband had to said action; that she was too much occupied with the necessary care for and attention to her husband, during his said dangerous illness, to have permitted her to have made any arrangements for the defence of said action, if she had been in possession of the facts necessary to the defence thereof; that, at the time the plaintiff's executed said mortgage to the defendant, there were upon the lands embraced in said mortgage a steam saw-mill, boiler and engine, with saws, pulleys, belts, pumps, log-way and carriage, tools, and other appliances and attachments suitable to and necessary for the running and operating of said mill; that said mill, boiler, engine, and appliances thereto belonging, were personal property, and not affixed, appurtenant, nor attached to the real estate, only as such was necessary to steady the machinery of said mill, but together made a portable steam saw-mill, which could be removed without |