concurring.
The determination of the rights of the parties to this suit depends upon the question whether the property was held in the ordinary mode of holding ditches and mining ground in this State, as tenants in common, or held as partnership property in the strict sense in which these terms are used in relation to mercantile transactions. I have no doubt that mining claims, ditches and lands may be held as partnership property, as well as any other, and when so held, for the purposes of discharging the partnership obligations or settling the partnership affairs, that such property will be subject in equity to all the-incidents of other partnership property. The title to claims may be held by parties as tenants in common, while there may be a strict partnership for the purpose of working them; or there may be a partnership both in the ownership and in the working of the claims. Whether the relationship of the parties is one or the other, or neither, must depend upon the facts of each particular case. These principles are distinctly indicated in Bradley v. Harkess, 26 Cal. 76. Parties purchasing the interest of one of the copartners in partnership property acquire such interest only as the vendor had, and that is, his share of the residue, after the affairs of the concern are wound up and the debts paid, including the balance due one partner from the other on the partnership account. (Jones v. Parsons, 25 Cal. 104.) And this rule in equity applies to real estate constituting a part of the assets of the firm, as well as to personalty. True if the record legal title to realty be in one of the partners alone, and he should convey to an innocent party for a valuable consideration without notice of the trust, such party might take a title under the recording Acts; but *588whether he would or would not, would depend upon principles having no peculiar relation to partnership rights. In such case, also, all the rules of law relating to possession, as affecting the question of notice, would, doubtless, be applicable as in other cases between individuals having no connection with partnership transactions. And these rules would, doubtless, obviate many of the difficulties suggested by the learned Judge who tried the case.
The finding in this case is an opinion rather than a finding, and liable to the criticisms suggested in Hidden v. Jordan, 28 Cal. 305; but from the facts stated, I think there was a partnership in working the mines, and that a large portion at least of the property in question was partnership property. Much of it—including a considerable portion of the claims and of the water rights—was purchased by the two parties interested with the common funds resulting from the joint working of the claims and from the common proceeds of sales of water. The profits and losses were to be shared according to their respective interest. This state of facts, without any specific agreement modifying the rights of the parties, would constitute the property so purchased, and the proceeds of the same, and of their joint labor, partnership property. As to this portion of the property the judgment is, therefore, erroneous.
It may be that the claims before owned and purchased in severalty in undivided interests were held by them throughout their connection as tenants in common. Whether they were or were not is not distinctly found as a fact, and we should not be justified in determining the question from the facts found. Those interests were, doubtless, originally purchased as tenancies in common ; but whether from the evidence before the Court, and the manner in which the parties blended their interests in those claims with thtiir subsequent purchases and in working the whole, the Court would be justified in finding that they put in the claims originally held, with the new purchases as partnership property, it is not our province now to determine. This will be a fact to be determined on the new trial. If so, it became partnership property and subject to *589all the incidents of such property. If not, and it was originally held and still continues to be held as a tenancy in common, then it was not partnership property, and the plaintiff lias no claim to have the sum due him from his cotenant or copartner in other matters charged upon it.
The complaint alleges a partnership, and seeks a dissolution and settlement of the affairs of the concern. It avers all the property to be partnership property. On the next trial it will devolve upon the Court to determine the facts whether a partnership existed or not; and if so, whether the whole, or only a part, and in that event, what part of the property described in the complaint is partnership property, and, unless other equities appear requiring a different disposition, to subject that part to plaintiff’s demand in case any balance shall be found due him on partnership account.
For these reasons I think the judgment must be reversed and the cause remanded.