The principal contention arises on the construction of- the contracts between Robert W. Hyman and Robinson, and between said Hyman and Robinson’s executors, set out in the statement of facts. Appellants maintained that the contracts show that said Hyman had no interest in the land, and that he was not the beneficiary of any right or trust therein; that he did not contribute or undertake to contribute anything toward the capital invested, nor h> pay any part of the expenses or losses that might attend the enterprise. His only function with reference to the land, it is said, was that of agent. He was to use his skill and judgment in selling the land. If he sold the land he would be paid for his services by a share of the profits after Robinson should be reimbursed for all advances; until he did sell the land, he had no claim for his services, and the services contracted for being personal, and Hyman having died, the sale could not be made by another, as that would not be giving to the principal the skill and experience for which he contracted.
It is sought to govern this case by Stow v. Robinson, 24 Ill. 532. The contract in that case recited that Robinson had purchased the land, and that it was to be subdivided, and that Rattray should sell the same as soon as practicable at his own expense, and after Robinson had received from the proceeds of the sale the money" paid for the land, with the interest thereon, the balance arising from such sale was to be equally divided between Robinson and Rattray. Rattray died before completing the sale of the land, and it was held by the Supreme Court that by the terms of the agreement Rattray had engaged to sell all the land, and the value of his services in doing so was to be measured by one-half the profits, and that as he had failed to completely perform the contract, a specific performance of it would not be decreed against Robinson at the suit of Rattray’s heir at law. It is very clear that by the contract Rattray acquired no interest in the land itself. The parties to the contract had no such intention. This is not true of the contract in this case, as we construe it. The first contract between Hyman and Robinson recites that Hyman has purchased the undivided half of section 21 for the joint account of himself and Robinson, and the evidence shows that Hyman had taken the title in his own name.
To carry out this adventure for joint account that had been entered upon, Robinson advances the cash and “doth take the title to said land,” and agrees to advance such further moneys as may be required to pay taxes and deferred payments until the lands shall be sold. Hyman agrees to make no charges for buying, selling or attending to payment of taxes, and covenants for himself and his heirs that whenever the premises shall be sold said Robinson shall in any event be reimbursed the full amount of all advances made on said lands, with interest.
Hyman agrees-to sell the land within one year, unless otherwise agreed between the parties; but we think it very clear that it was contemplated that sales might be made by Robinson, and in the second contract it is expressly provided that sales-might be made by the trustees; and by the terms of both contracts, upon the sale of the premises, by whoever made, half of the proceeds over and above the amount necessary to reimburse Robinson or his estate should come to Hyman.
It was, in our opinion, the manifest intent of the parties to these contracts to create, as between them, a joint interest in the proceeds of the land, and that the legal title ivas taken and held by Robinson and his trustees with that intention and upon that trust. The adventure was, in essence and effect, a partnership transaction, and though the stock in trade was real estate, it was as to the interests of the several parties, personal property. Nicoll v. Ogden, 29 Ill. 323.
An authority very much in point for construing the contracts in question as partnership transactions in land, is found in Seymour v. Freer, 8 Wall. 202, cited by counsel for appellee. The case under consideration, we think, furnishes clearer ground for the application of the doctrine, for the reason that there it had to be implied from the whole contract that the purchase of the lands was on joint account, while here it is declared by the parties in express terms that such is the motive of the transactions.
We think that the receiver of the bank had, under the evidence in the record, a standing in a court of equity to compel the sale of the lands, and that the decree nisi, eta, of the Circuit Court in ordering the sale of the lands and the payment of the debt due from the estate of Hyman to the bank out of the portion of the proceeds that remained after satisfying the claims of Robinson’s estate, in accordance with the contracts, was correct, and the same will therefore be affirmed.
Judgment affirmed.