70 P. 1037 | Or. | 1902
delivered the opinion.
1. This is a suit to enjoin the sale of an undivided one half of 160 acres of land in Malheur County to satisfy the debts of a partnership composed of the plaintiff and one R». M. Steel. Prior to November, 1885, the plaintiff made application to purchase the land in controversy under an act of congress “to encourage the growth of timber on the western prairies, ’ ’ and amendments thereto: 20 Stat. IT. S. 113. Shortly afterward he entered into partnership with Steel for the purpose of carrying on the business of farming and stock raising, under the firm name and style of Steel & Adams. By the terms of the partnership agreement, plaintiff’s timber culture was to be considered as partnership assets, and was to be conveyed by him to the firm as soon as he obtained title from the United States. Thereafter Steel died, and, the plaintiff refusing to comply with his agreement, it was decreed, in a suit prosecuted by Steel’s representatives for the purpose of determining the assets of the firm and for its dissolution, that the land in controversy was partnership property, and belonged to the firm: Church v. Adams, 37 Or. 355 (61 Pac. 639). The proof of compliance with the provisions of the act of congress under which the land was taken was made by plaintiff and the final certificate issued to him in 1896. The partnership debts which it is now sought to enforce against the land were contracted prior to that time, so that the sole question for decision is whether the plaintiff’s interest in the land can be seized and sold under execution for debts contracted by the firm of which he was a member prior to the issuing of the certificate. The ease would be clear if Adams still owned the land in his individual right. The act of congress under which it was acquired provides as follows: “Sec. 4. That no land acquired under the
“The clear current of the American decisions supports the rule,” says Mr. Chief Justice Andrews in Darrow v. Calkins, 154 N. Y. 503 (49 N. E. 61, 48 L. R. A. 299, 61 Am. St. Rep. 637), “that in the absence of any agreement, express or implied, between the partners to the contrary, partnership real estate retains its character as realty, with all the incidents of that species of property, between the partners themselves, and also between a surviving partner and the real and personal representatives of a deceased partner, except that each share is impressed with a trust implied by law in favor of the other