55 Ky. 631 | Ky. Ct. App. | 1855
delivered the opinion of the Court.
It appears that F. G. Gedge, J. C. Gedge, C. H. Gedge, and W. H. Gedge were partners, dealing in tobacco and real estate, under the name and style of Gedge & Brothers. F. G. Gedge departed this life on the — day of-, and, at the time of his death, the firm were the owners of the parcel of land in controversy, which was subsequently sold by the survivors to the plaintiff, Galbraith, and bond was executed by them to convey with general warranty. This suit is brought by Galbraith against the surviving partners, and against the widow, children, and heirs at law of the deceased partner, for a specific execution of the contract.
The surviving partners, and the adult heirs and their husbands, answer, admitting the allegations of the petition, and expressing the wish that the plaintiff shall have a conveyance of the land in accordance with the stipulations of the title bond; and the infant heirs answer by guardian ad litem. The widow did not answer, or make her appearance.
It was proved that the debts of the firm of Gedge & Brothers were large ; that the land in controversy was purchased with the money of the firm, and belonged to the firm; that the firm had but little personal estate, and that it was necessary that the land should be sold for the payment of debts.
Under this state of case, the chancellor decreed a conveyance to be made to the plaintiff by the surviving partners only, expressing the opinion that, as the real property of the partners was necessary for the payment of debts, the survivors had a right to sell and convey. The plaintiff being in doubt whether his title under this decree will be entirely safe and secure, has appealed to this court.
Whether real property, held by partners as partnership stock, is to be regarded as converted into personalty, is a question about which there has been a diversity of opinion. It would be unprofitable, and a waste of time, to attempt to collate and ana'
The land in contest, according to the proof, was held “as belonging to the firm, being purchased by the money of the firm,” but, had not been impressed by them with the character of personalty, so far as the record shows. It was held, therefore, as partnership stock, subject, in equity, to the incidents which have been mentioned; but, at law, subject to the rules applicable to a tenancy in common.
If these views be correct, and we think they are, in accordance with the tenor of the authorities, it follows that, upon the death of F. G. Gedge, his interest in the land descended to his heirs at law, who became tenants in common with the surviving partners, and a right of dower, therein, of the widow, attached to this interest; but, the rights of the widow and heirs were subject, in equity, to be entirely defeated by the necessity of appropriating the land to the payment of debts. This necessity existed in this case, and the widow and heirs must surrender all claim to the land.
It results that the court erred in directing the surviving partners only, to convey to the plaintiff; and upon a return of the cause, the chancellor will make such orders as will secure to the plaintiff a conveyance to him of the title of the heirs. The interest of the widow, also, should be secured to the plaintiff by appropriate conveyance.
We concur with the chancellor in the opinion that the wives of the surviving partners have no interest in the land, and were not necessary parties, although they united with their husbands in a bond for a conveyance — no interest in them was attached to the land, as it did do in the widow — they have no present interest, and, as the land will be necessarily taken for the payment of the debts of the partnership, they can have none in future.
The views expressed in the foregoing opinion are to be confined, of course, to the facts as they appear in the record. In regard to the character in which the land is held, it only appears that the partners are
Wherefore, the judgment is reversed, and the cause remanded, for a decree in conformity to the principles of this opinion. But, as none of the defendants resisted an appropriate decree in the court below, and are desirous of securing to the plaintiff a good title, appellant is not entitled to costs in this court.