87 N.J. Eq. 560 | New York Court of Chancery | 1917
This is a bill filed by the heirs-at-law of Walter A. Flint, deceased (one of them is am infant), for the partition of certain
i The-law is well settled that partnership real estate, not necessary for the1 payment of partnership debts, descends to heirs-at-l-aw. Craighead v. Pike, 58 N. J. Eq. 15; Campbell v. Campbell, 30 N. J. Eq. 415. There are exceptions. Patrick v. Patrick, 71 N. J. Eq. 347. That, so far as the owner of the soil is concerned, the improvements are real estate, admits of no question; Leo Company v. Jersey City Bill Posting Co., 78 N. J. Law 150; Palmeteer v. Robinson, 60 N. J. Law 433. They became real estate not because 'of a change of a physical nature but because of annexation to the soil. The rule originally, I think, was based upon the practical impossibility of removal after annexation without great injury. One who voluntarily places improvements upon the land of another, with or without the consent of the owner of the soil, loses his right to the personal’property unless there is an express agreement which takes the case out of the rule and even where such an agreement is present which might be effective between the owner of the soil and the person making the improvements it would be ineffective ■as against subsequent purchaser without notice. The reason for this is stated by Mr. Justice Trendiard in Leo Company v. Jersey City Bill Posting Co., 78 N. J. Law 152. It is conceded by defendants that the fact that the land was the land of one of the partners and the improvements were made with partnership funds operates to prevent the owner of the soil from asserting as against thé partnership and its representatives the right to hold the improvements without some compensation. The question is, what is the right of the partnership? Is it.a right in the property or a right against the property? Is it a right of ownership in the property or is it in the nature of a lien against the-property for the value put into it ? I think the latter. What
Having concluded that the right of the partnership is personal propertjq the motion to strike out the bill must prevail.