9 Ind. 16 | Ind. | 1857
This was a complaint by Me Carty, Tyner, and Holland, against Roberts, for the partition of certain
The facts disclosed by the pleadings and evidence are substantially the following: Stephen and Charles Coffin were the owners, in fee, of the real estate of which partition is sought, the same being a lot of ground in the town of Brookville. They were partners in business, and used, for purposes connected with then- partnership operations, a frame warehouse, which they had constructed on the lot. In July, 1846, Charles Coffin conveyed the undivided half of the real estate to Roberts, the defendant. After this, Roberts and Stephen Coffin became partners, and as such, put the proper machinery into said warehouse, with a view of converting it into a mill for the manufacture of flour. In September, 1846, Stephen Coffin, with the assent of his then co-partner, Roberts, sold and conveyed his undivided half to one Richard Tyner, who made the purchase with his own individual funds, intending, at the time he purchased, to run the mill in partnership with Roberts. When the mill was completed, Tyner had paid one-half the expense of its completion, and Roberts the other half. As partners, they, Tyner and Roberts, run the mill and carried on the business of manufacturing flour up until the 10th of November, 1854, when they dissolved the partnership. During its existence, some improvements were made on the real estate and mill; but the value of them is not shown. These improvements were paid for out of the partnership funds. Policies of insurance were taken out for the protection of the mill property. Four of them were in the names of Richard Tyner and John Roberts, and one in their partnership name of Tyner and Roberts. The premium on all the policies was paid by Tyner, and charged to the firm. After the dissolution took place, a settlement was had, whereby it appeared that Tyner owed Roberts 3,000 dollars — a balance due him on account of their partnership transactions. Roberts, on being informed that Tyner had become insolvent, and was about to make an assignment, requested him to secure the balance due; but he declined doing it. And on the 10th of November, 1854,
The only question before us is — Was the mill property partnership stock? If it was, Roberts, for the balance due on settlement with his co-partner, has a right to the lien set up in his answer. It is conceded that real estate, acquired with partnership funds, for the use and convenience of the firm, may, in equity, be chargeable with the debts of the co-partnership, and with any balance which may be due from one co-partner to another, upon the winding up of the affairs of the firm
We are, therefore, of opinion that they did impress upon it the character of partnership property. It follows that Roberts is entitled to his lien. This conclusion is, in our opinion, supported by authority. See Goodburn v. Stevens, 1 Md. Ch. R. 420; Buchan v. Sumner, 2 Barb. Ch. 165; Hale v. Plummer, 6 Ind. R. 121; and Buckley v. Buckley, 11 Barb. S. C. 44. The judgment must be reversed.
The judgment is reversed with costs.
Mr. Chancellor Walworth, in Buchan v. Sumner, 2 Barb. Ch. 165, where the authorities are ably reviewed. See, also, Kent, Com. Lect. 43, pp. 37, 38, 39, 4th ed., and the authorities cited in the notes; Gow on Part. c. 2, pp. 32 to 35, 3d ed.; Watson on Part. c. 2, pp. 81 to 89, 2d ed.; Gow on Part. Supplement, 1841, to 3d ed. c. 2, s. 1, pp. 8 to 13; Collyer on Part. B. 2, c. 1, s 1, pp. 82 to 102; Mr. Bell’s summary of the Scottish law, Story on Part. 3d ed., top p. 137, note.
. (2) This was the rale in equity. The part of the section referred to reads as follows: “Indeed, so far as the partners and their creditors are concerned, real estate belonging to the partnership, is in equity treated as mere personalty, and governed by the general doctrines of the latter. And so it will be deemed in equity, to all other intents and purposes, if the partners themselves have, by their agreement or otherwise, purposely impressed upon it the character of personalty.” The cases cited are, Thornton v. Dixon, 3 Bro. Ch. 199, and Mr. Belt’s note (1); Balmain v. Shore, 9 Ves. 501, 507, 508, 509; Ripley v. Waterworth, 7 Ves. 425; Cookson v. Cookson, 8 Sim. 529; Fereday v. Wightwick, 1 Russ. and M. 45; Houghton v. Houghton, 11 Sim. 49; Buchan v. Sumner, 2 Barb. Ch. 200. At law it was otherwise. See 1 Story’s Eq. Jurisp. s. 674; Story on Part. s. 92; Anderson v. Tompkins, 1 Brock. 456, 465; Blake v. Nutter, 1 App. 16. Where real estate is bought and held for the purposes of the partnership, the conveyance may be in the name of one, for the benefit of all the partners; or in the name of all, as tenants in common, or joint tenants. And in a Court of equity, such real estate is treated, to all intents and purposes, as a part of the partnership funds, whatever may be the form of the conveyance. “Eor a Court of equity considers the real estate, to all intents and purposes, as personal estate; and subjects it to all the equitable rights and liens of partners,” &c. 1 Story Eq. Jurisp. s. 674. Goodburn v. Stevens, 5 Gill, 1; Rice v. Barnard, 20 Verm. R. 479; Buchan v. Sumner, 2 Barb. Ch. 165; Washburn v. Bank of Bellows Falls, 19 Verm. R. 278, 292; Day v. Perkins, 2 Sandf. Ch. 359; Cox v. McBurney, 2 Sandf. S. C. 561; and Averill v. Loucks, 6 Barb. S. C. 19, 470, are cited.