Conceding that the land in question was, at the time of its conveyance by Welch to the defendant, a part of the partnership property of Westervelt and Welch, its conveyance to him, if otherwise unobjectionable, is not inoperative or voidable, on account of its having been made in payment of a partnership debt, even though the effect may have been to give a preference to the defendant over other creditors of the firm, and put an end to the partnership. This proposition rests for its accuracy upon authority. (Mabbett v. White, 2 Kern., 442; Graser v.Stellwagen, 25 N.Y., 315.) Nevertheless, as a general rule, in the absolute sale of land, where (as under our statute) the conveyance must be under seal, one partner cannot bind the firm by deed; all that he can convey, whether he executes the deed in his own or the firm name, is his interest in the partnership property. Thus far, there is no serious controversy between the parties, as to the law governing the disposition of partnership property. The difficulty arises out of the fact, that the title to the property in question did not stand in the firm name, but that one undivided half thereof stood in the name of each partner, and was held, as the referee has found, for partnership uses; and hence, it is claimed, because each holds title, in his individual name, to an undivided half for the benefit of both, neither can convey a half of the whole. The theory of the plaintiff is this: Each half owner holds one-quarter of the *Page 552 whole in trust for his copartner, which cannot be conveyed unless his copartner join in the deed; yet it is not denied, and cannot be upon principle or authority, that if the whole property, instead of the half, had been embraced in the sale, and both partners had joined in the deed, the absolute title to the whole, including the one-quarter claimed to have been held by each, would have passed by the deed. It has been overlooked, or at least not suggested, that the title held by Westervelt was subject to the same trust as that held by Welch, and that, in no event, the title of either could be less than one-half of the whole; and no good reason can be assigned why, in any view of the case, a deed by either could not convey an undivided half of the whole. The plaintiff's theory, carried out, would lead to strange results. If an hour after, or at the time of the execution and delivery of the deed by Welch, Westervelt had, under the same circumstances, conveyed an undivided half of the same premises to the defendant, there would have remained a full half yet undisposed of; and thus, what has been regarded as a heresy up to this time, would be established as law, viz., that partners cannot, by separate deeds, convey their entire estate in lands held for partnership use, but that, to effect a transfer of the latter, they must unite in one and the same deed. The mistake, persevered in, is in not regarding the title of Westervelt and Welch to the property, held by them as partners by separate titles, in the same light as if it had been held under a joint deed to both. I am, therefore, without considering to what extent this property, for partnership uses, should be regarded as personal, for reversing the judgment appealed from.
For reversal, LOTT, Ch. C., and EARL and GRAY, CC.
For affirmance, HUNT and LEONARD, CC.
Judgment reversed and new trial ordered, costs to abide the event. *Page 553