The Opinion of the Court was delivered by
Caton, J.Tbfe bill in this cause states, that, some time about the year 1822, the complainant Clawford, the ancestor of the defendant, and one Bolgiano were doing business in partnership, of the stock and profits of which Bolgiano owned one half, and the other two persons one fourth each. About that time, one Stansbury, being indebted to the firm in about $1600, in payment and satisfaction thereof, conveyed to Crawford for the benefit of the firm, fifty quarter sections of land, which are described in the bill. That, in the year 1832, the firm was settling up and preparing to close its business and dissolve, and that one half of said land, which is described as the share of said Bolgiano, was conveyed to him by mutual consent. That said Crawford still retained the legal title to the residue of said land, to one half of which the complainant is entitled in equity. That since then, and prior to the filing of the bill, Crawford has deceased, and left the de-. fendant his only heir at law. The bill prays for specific and general relief.
To this bill a demurrer was filed, which was sustained by the Court and the bill dismissed, from which decree this appeal is taken.
It is objected to the /bill, first, a want of proper parties; second, that the bill shows no equity on its face; and, third, whatever rights the complainant may have had, they are barred by lapse of time.
When Crawford received the legal title to this land, he became a trustee for the firm, each member, in equity having the same interest in it, which he had in the debt for the payment of which it was received. In 1832, that trust was in part executed, in pursuance of the agreement of all the parties, by the conveyance of the legal title to Bolgiano of his moiety. After that arrangement, which was made with the concurrence of all the parties, the validity of which must, of course, be recognized by this Court, the complainant and Crawford ceased to have any interest in the land thus conveyed to Bolgiano, and he ceased to have'any interest in the land, the title to which Crawford still retained, for one half of which he then became trustee for the complainant. Upon the death of Crawford, his heir, to whom the legal title descended, became trustee in his place, to enforce an execution of which, this bill was filed. The counsel for the defendant seem erroneously to have supposed that this bill was filed for an account among partners. The bill does not show that there are any subsisting and unsettled accounts between the members of that firm, and the Court ought not to presume that there is, for the purpose of defeating what is, prima facie, good ground for relief, but will leave that matter to be shown by the defendant in her defence, if it be true.
It is not necessary for us now to determine, whether real estate purchased by a firm with funds belonging to the company, is to be treated as personalty in closing up its affairs. On that question there seems to be a great contrariety of authority, and I think, in the language of Mr. Justice Story, it is «open to many distressing doubts.” Although the weight of the authorities would seem to indicate, that in a Court of Equity at least, property thus situate, would be treated as partnership assets, to be appropriated to the payment of the partnership debts in preference to the individual debts of the several members of the firm, and that the widow would not be entitled to dower as against such partnership creditors. These questions may possibly arise upon the coming in of the defendant’s answer, but they are not here now.
The ease might have been very different, had not the parties voluntarily made a partition as to Bolgiano’s interest. If, before this partition, this was partnership property, as amongst themselves, it could not be considered as such after-wards. By that act they separated this property from, the joint stock, and made it individual property. Before this partition, in equity, all three might be considered as joint tenants of the whole of the land; but, after it, the. complainant and Crawford became tenants in common of the half which was not deeded to Bolgiano. After that, Bolgiano could not insist upon its being appropriated to the payment of partnership debts. If one of the parties could not, neither could. That part, the title of which Crawford retained, was no more partnership property than that conveyed to Bolgiano. If one portion continued partnership property, the other did, unless possibly it should appear that there was an express agreement to the contrary.
The objection to the bill, that there are not proper parties, is not well taken.
The bill undoubtedly shows equity on its face, nor is the lapse of time sufficient, of itself, to bar that equity.
The decree of the Court below is reversed, and the cause remanded.
Decree reversed.