The real estate was undoubtedly partnership property, and should be so considered in equity. For the *Page 550 purpose of adjusting the affairs of the copartnership, it must be treated in equity as personal property. Each partner held an undivided half in trust for the partnership, and as trustee could be called to account for it.
Welch held the legal title of an undivided half, and, without the consent of his partner or of the firm, could give a bonafide purchaser a good title. But any purchaser from him, under the circumstances, with notice of the trust, would take the real estate impressed with the same trust under which he held it. If Westervelt had consented to this conveyance, Applegate's title would have been good without anything more. It would not have been necessary for Westervelt to have executed the deed; that is, Welch could have conveyed the undivided half and given good title to it, provided he made the conveyance with the consent of the firm. In such case there would have been no breach of trust on his part.
Suppose Welch had held the legal title to the whole land, instead of an undivided half, it would still have been partnership property, subject to the same rules. In such case, with the assent of the firm, he could have conveyed the whole title to any purchaser. It would not have been necessary for Westervelt to have joined in the conveyance.
If this had been strictly personal property, Welch could have conveyed the whole, or any specific part, or any undivided part to Applegate, to satisfy the firm debt, provided he did so, acting for and on behalf of the firm. And, as this real estate is to be treated as personal property, it may be conveyed for the same purpose and in the same way. Welch, for and on behalf of the firm, consents that the property may be appropriated to pay a debt of the firm, and then, holding the legal title as trustee for the firm, he conveys it to pay the debt in the only way it can be conveyed. He, representing both the cestuis que trust and the trustee, makes the conveyance, and in such a case, the grantee must take the whole legal and equitable title. *Page 551
When one partner conveys partnership personal property in his own individual name, the vendee gets only the interest of the vendor, remaining after the settlement and adjustment of the partnership affairs; for the legal title to the property is in the firm, and the firm must convey. But here the legal title to the real estate sold was in the name of Welch, and all that was needed was, that he should make the conveyance, acting for and with the assent of the firm; and this assent he as a member of the firm, was perfectly competent to give.
These are briefly my reasons for concluding that the judgment should be reversed and a new trial granted.