| Ill. | Dec 15, 1855
The bill seeks to correct a mistake of fact, alleged to have been made by omitting to insert the word “ they ” in the covenant of warranty in a deed of conveyance, so as to make it a personal covenant of the vendors; and thereupon, for relief by decree for the purchase money, with interest, on breach of the covenant so reformed, by recovery from vendors and vendee, by paramount title, in a case in equity, to which all were parties defendants.
We do not think the record shows a case for the interposition of a court of equity. We recognize a mistake in fact as a ground for equitable jurisdiction; but relief will only be granted upon clear and satisfactory proof of the mistake in fact. Harris et al. v. Reece et al., 5 Gil. R. 212; Selby v. Geines, 12 Ill. R. 69; 1 Story Eq. Jurisp., Secs. 110, 151, 152, 153.
But this does not extend to mistakes in the law of the contract, case, or legal meaning of the terms agreed qn between the parties, without fraud. 1 Story Eq. Jurisp., Secs. 111, 115; Beebe v. Swartwout, 3 Gil. R. 162. Nor to mistakes in the intention of one only of the parties, and without fraud in the other. Coffing et al. v. Taylor, 16 Ill. R. 457.
We may admit, without discussion of the evidence, that a mistake has been shown as to the kind of covenant Yansyckel intended and agreed to enter into, and that the deed of both should contain; yet the evidence shows that McConnel did not agree personally, but, on the contrary, expressly refused to enter into a covenant of warranty. Defendants were partners, and liable as such for the debt which was paid with the land, notwithstanding the private agreement between them that Vansyckel should pay all the debts, and be liable therefor. Although this land was transferred to, and the title held by, the partners, and liable to partnership debts, yet the plaintiff’s abstract equity against McConnel is weakened by the fact that it was the private transaction, if not the private propety, of Yansyckel, and taken in the names of both at his instance, and without McConnel’s knowledge, and who only afterwards consented to transfer or convey, that the property might pass out of him again for what it might be worth.
The solution of the facts in the case, however, depends upon the legal power of one partner, generally, to convey or make such contracts, verbal or written, as will pass the title of real estate belonging to the firm, or which may be specifically enforced in equity, by compelling the other partner to execute a conveyance, with or without particular covenants, or by decree for such a conveyance by a commissioner of the court. This would be the result, if the power exists in each partner to bind the other in relation to the realty. I do not speak of such contracts in relation to the liability of partners for damages for their breach, but in relation to specific execution of them, and conveyances by one, for all the partners.
In this point of view, under the law governing partnerships, one partner has not the power to convey the real estate of the firm, either by deed or assignment; nor make contracts, written or verbal, specifically enforcible against the others. Collyer on Part., Secs. 135 and notes, 394; Story on Part., Sec. 101 and notes; Story on Agency, Cap. 6, Sec. 125; Piatt v. Oliver et al., 3 McLean R. 28. See Tapley v. Butterfield, 1 Metcalf R. 515; Deckard v. Case, 5 Watts R. 22; Sloo v. President, &c., State Bank of Illinois, 1 Scam R. 428.
Lands belonging to the partnership are nevertheless equally, with the personalty, liable to the payment of the debts of the firm, and will go into the balance of account between the partners on settlement of profit and loss. See same authorities. But in the transfer of lands, the rules applicable to the conveyance and descent of-realty are to be observed, as they are not modified by the nature of the ownership; nor have partners, under the law of partnerships, an implied power, individually, for the firm to do what may be done by a court of equity in paying creditors, or adjusting balances between the partners. They must observe all the solemnities, and convey in the modes recognized by law for the transfer or conveyance of real estate. By these, a co-parcener, joint-tenant, or tenant in common, has no power to bargain, sell or convey the real estate, or interest in it, of his co-tenant. The agreement of Vansyckel, as partner, was not, therefore, obligatory upon McConnel to make any kind of conveyance of this land, either in law or equity. The plaintiff should have protected himself by refusing to take any other than such a conveyance as suited, or would protect his title. Upon defendant’s declining to give a warranty, he should have refused to receive the one tendered; and if he had any personal remedy against the firm, for damages for breach of such an agreement by one partner—upon which we express no opinion— he should have brought his action upon the contract for breach, and not a bill for specific execution.
The right to a decree is very questionable, upon another ground, even against Vansyckel alone, upon any covenant in, or that should have been in, this deed as to him; for he alone might have made his covenant of warranty in it, had it been asked and required.
The plaintiff has brought his action of covenant on this very covenant, for a breach, against both defendants, and suffered a recovery against him for costs, and which has been affirmed in this court. Ruffner v. McConnel et al., 14 Ill. R. 168.
We are not able to distinguish the case in principle, if it be at all in the facts in this respect, from the case of Sibert v. McAvoy, 15 Ill. R. 106, where the plaintiff first sued upon the contract at law, and after judgment; then filed his bill to reform the contract by correction of an alleged mistake. The court held that the contract was merged in the judgment, and there was no contract left to be reformed or corrected.
Under this view of the case, we need not examine into the question whether the recovery in equity against warrantors and warrantee, by paramount title, is sufficient showing of a breach, without further actual eviction.
Decree affirmed.
I agree that Vansyckel could not bind McOonnel, his co-partner, to execute a deed with covenants of general warranty, and that upon this record the decree should be affirmed.