130 Wis. 310 | Wis. | 1907
The facts alleged in the complaint are-of course admittéd by the demurrer. From such facts it appears that after the defendant Curtiss had been in partnership with the plaintiffs about three and one-half years under-the firm name of Kyle Bros. & Co., conducting the business-mentioned upon the premises described, the firm was dissolved by mutual consent, Curtiss retiring from the firm and selling to the plaintiffs all his right, title, and interest in and
Upon tbe facts stated it s difficult to perceive upon wbat theory tbe defendants can withhold from tbe plaintiffs the legal title to tbe lands in question. They were property which belonged to tbe partnership up to tbe time of its dissolution. Tbe terms of dissolution were mutually agreed upon. In sucb mutual agreement tbe plaintiffs assumed all obligations against tbe firm and released Curtiss from any and all his indebtedness to tbe firm. By sucb agreement the plaintiffs were to' have all tbe right, title, and interest of Curtiss in tbe partnership property, including tbe real estate, for which the plaintiffs paid him the agreed price, wbicb Curtiss received in full
It is elementary that “real estate purchased for partnership purposes and appropriated to those purposes, paid for by partnership funds and necessary for partnership purposes,, always becomes partnership property. Nor does it seem to be material in what manner, or by what agency, the land is bought, or in what name it stands.” Parsons, Partn. (4th ed.) § 265. In the same section it is said:
“We consider it an established rule in equity that any party holding the legal title to land, however it may have come to him, will be held as trustee for the partnership, if it be certain that the land was in fact a part of their joint property as partners.”
“Where a partnership holds land not as the chief purpose of its existence, but as an incident to its business, the statute of frauds does not apply, and the land may be shown to be part of the partnership stock and affected with partnership equities by oral evidence.” 1 Bates, Partn. § 301.
Such statements are amply supported by adjudged cases. Among others, see Fairchild v. Fairchild, 64 N. Y. 471; Greenwood v. Marvin, 111 N. Y. 423, 19 N. E. 228; Sherwood v. St. P. & C. R. Co. 21 Minn. 127; Marsh v. Davis, 33 Kan. 326, 6 Pac. 612. Such real estate, so purchased and held, is in equity not only considered as the property of the-firm for the payment of its debts, but also “for the purpose-of adjusting the equitable claims of the copartners as between themselves.” Smith v. Tarlton, 2 Barb. Ch. 336. Here, upon the dissolution of the firm and in the adjustment of such equitable claims between the partners, Gurtiss was to convey, his legal title to the lands to plaintiffs; and his refusal to do so' and his conveyance to Carpenter was a breach of trust and fraud', on the plaintiffs. In the opinion of the trial court the facts, alleged entitled the plaintiffs to a specific performance of the-contract to convey to them the legal title to the real estate. Of course the power of courts to compel specific performance-is not abridged by the statute of frauds. Sec. 2305, Stats. 1898. The complaint does not in terms pray for such specific-performance, and so we refrain from further considering the question here. We perceive no ground for claiming that the cause of action alleged is barred by the statutes of limitation.
By the Court. — Both orders of the circuit court appealed: from are affirmed.