14 Tenn. 20 | Tenn. | 1834
delivered the opinion of the court.
This court sees no reason to depart from the principle of the case of M’Alister and Montgomery, 3 Haywood’s Reports, 94, and therefore, adopts the opinion of the Chancellor delivered in the court below.
The decree will be corrected only so far as relates to the mode of disposing of the estate, as the parties have submitted it to the court of chancery. The officer of that court, or a commissioner appointed for that purpose, should conduct the sale, especially as it may save a sacrifice of the estate by placing it in a condition that Woods
The following is the opinion of Chancellor -Reese, referred to and adopted by the supreme court in the foregoing opinion.
The question submitted to the court by the complainants and defendants, is, whether the real estate of the firm of Yeatman, Woods & Co. is to be considered and distributed as personal stock, as between the surviving partners, the heirs and the widow.
The progress of trade and manufactures, and a more complicated and artificial state of society, imposed, long since in England, upon the courts, the necessity of relaxing some of the stern features of the feudal system in reference to land. This was first shown as to the property in fixtures for the purposes of trade as between landlord and tenant, and then as between heir and executor; next, in relation to real estate, constituting the basis or substratum of a partnership business; till at length, notwithstanding the opposing judgments of Lord Thurlow and Sir William Grant, reported in 3 Brown’s C. R. 199, and 7 Ves. 453, and 9 Ves. 500, the opinion seems to have been settled by Lord Eldon, and by the House of Lords, not only that real estate owned by a partnership, and necessary to the carrying it on, shall be deemed partnership stock, and be treated as personalty, but that any real estate purchased with the partnership funds and in the partnership name, shall be considered and treated in the same manner.
The American decisions on this subject have differed; some, as in the cases in 15 Johnson’s Rep. 159, and 11 Massachusetts, 469, following the cases above referred to in 3 Brown’s C. R. 199, and 7 Ves. 453, and 9 Ves. 500; and others, as the cases in 4 Munford, 316, and 7
By the very authority, however, of the case referred to on the main point of it, the surviving partners in this case would have the power, if it'be desirable, to sell the real estate in question, unless the admission in the answer, that it is not necessary to do so in order to pay debts, should operate against it. And there are two grounds, if proper allegations were made in the bill, upon which this court might do so on behalf of the complainants. 1st. If it were obviously for the interests of the complainants, who are minors. 2d. If the property be of a character not to be partible between the claimants.