Coles v. Coles

15 Johns. 159 | N.Y. Sup. Ct. | 1818

Per Curiam.

The motion for a new trial must be denied. The testimony on the part of the pjaintiff shows, very satisfactorily, that the intestate was only entitled to a moiety of the land sold, and he can, of course, claim only one half of the consideration money. The letter of the 29th of December, 1812, might admit of a construction that the intestate was the sole owner of the land. But the other proof, and the. conveyance which was given by both Stephen and Willet Coles show, beyond any feasonable doubt, that they were joint owners or tenants in common.

It is to be inferred from the case that the mortgage for 2,000 dollars, was upon this land; though that is not very clearly stated. The defendant, at all events, admitted that this mortgage was his own. private debt, and no part of it ought, of course, to be paid out of that portion of the consideration money due to the intestate, Stephen Coles. The defendant is, therefore, bound to' account to the plaintiff for the one half of the 9,000 dollars,. (the full amount of the consideration,) togetherwith the interest from the time it was received.

No objection can be made to the recovery, on the ground of any existing partnership between Stephen and Willet Coles. They were tenants in common, not partners, in this land. The principles and rules of law applicable to partnerships, and which govern and regulate the disposition of the partnership property, do not apply to real estate. One partner can convey no more than his own .interest in houses, or other real estate, even where they are held for the purposes of the partnership. (Wats. Partners, 67.) There may be special covenants and agreements entered into between partners, relative to the use and enjoyment of real estate owned by them jointly, and the land would be considered as held subject to such covenants; but nothing of that kind appears in the present case ; and, in the absence of all such special covenants, the real estate owned by the partners must be considered and treated as such, without any reference to the partnership. These are principles fully established. by the cases of Thornton v. Dixon, (3 Brown’s Ch. Rep. 199.) and Balmain v. Shore. (9 Ves. jun. 500.) Willet and Stephen Coles must, therefore, be considered as tenants in common of the lands sold and conveyed by them; arid there can be no doubt, that where two tenants in common -sell and convey their land, and all the money is received by one, the other can maintain an action for money had and received, for his moiety, against the other.

Motion for new trial denied.