quoted, and, as far as we know, generally | its face, would not accomplish the advancing held. The instrument in question, if gen uine, and if acted upon as its terms suggest it might be, could do no possible damage. If the amount of $20 dollars was advanced to Evans by Schumacher upon this order, and if that amount were charged to Evans himself, it would be nothing whatever but a transaction between Schumacher and Evans, which could be accomplished between those two persons with as much ease without the order as with it. The order, as it appeared on

of the money by Schumacher to Evans on the
credit of Johnson & McCarthy. Schumacher
would as readily have advanced it without
the order as with it. There were no extrinsic
facts alleged in the information to show that
the instrument was available for the fraud-
ulent purpose alleged in the information.
The order of the District Court in arrest of
judgment is affirmed.
Hunt, J., concurs.

ILLINOIS SUPREME COURT.

Paradine GALBRAITH et al., Appts.,

v.

Silas TRACY et al.

(163 Ill. 54.)

1. In equity the surviving partner is treated as a trustee of the representatives of the deceased partner.

2. The administrator of the last surviv. ing partner stands in the shoes of his intestate as a trustee of the legal representatives of the partner first deceased.

3. In equity the real estate of the part-
nership is regarded as standing on the same
footing with personal property no matter in
whom the legal title may be vested.

4. Whatever of the real estate of the
partnership remains after partnership
debts are discharged is held in common by the
heirs subject to dower, or goes to the devisees.
5. The purchase of partnership real
estate, or of a certificate of sale thereof by a
master in chancery, made by an administrator of
the last surviving partner, at half its actual value,
when he should have redeemed the lands for the

NOTE.-The position of surviving partners in part- | that the land in dispute in that case is held in joint

nership real estate.

L The position of a surviving partner.

a. Atlaw.

b. In equity.

c. How affected by state statute.

d. As creditor.

e. Lien of surviving partner.

IL. Powers of the surviving partner.

a. Of disposition.

b. To mortgage.

c. To remove incumbrances.

d. In property mortgaged to the firm.
e. To continue the business.

f. To bring ejectment.

II. With respect to leasehold property.
IV. Effect of conveyance by.

V. As between the survivor and personal represen-
tatives of a deceased partner.

VL Injunction against survivor.

tenancy for the purpose of carrying on and promoting trade or commerce, or other useful work or manufacture. Gaines v. Catron (1840) 1 Humph. 514.

a. At law.

When a partnership is dissolved by the death of one or more of the partners, the legal title in real estate descends to the heir-at-law of the deceased partner, and a court of law, looking to the legal title alone, cannot regard or protect the mere equities of others. Andrews v. Brown (1852) 21 Ala. 437, 56 Am. Dec. 252; Hanway v. Robertshaw (1874) 49 Miss. 758; Smith v. Jackson (1833) 2 Edw. Ch. 28, 6 L. ed. 295.

Yet he is considered as holding as tenant in common with the survivor. Loubat v. Nourse (1853) 5 Fla. 350.

The legal title vesting upon them as such. Clay v. Field (1888) 34 Fed. Rep. 375.

With respect to the position of tenants in dower In his character as tenant in common with the and by the curtesy and of the heirs and personal heir, of the deceased partner, holding the title subrepresentatives of a deceased partner in partner-ject to the demands of the trust, his account must ship real estate, see note to Woodward-Holmes Co. ▼. Nudd (Minn.) 27 L. R. A. 340.

As to the rights of partners inter se, see note to Yorks v. Tozer (Minn.) ante, 86, and Dyer v. Morse (Wash.) ante, 89.

Upon the rights of creditors and purchasers and other third parties in partnership real estate, see note to Goldthwaite v. Janney (Ala.) post, 161.

As to when real estate will be considered partnership property, see note to Robinson Bank v. Miller, Lamport v. Miller (Ill.) 27 L. R. A. 449, and National Union Bank of Maryland v. National Mechanic's Bank of Baltimore (Md.) 27 L. R. A. 476.

For questions relating to the position of the surviving partner and the heirs and the power of the beirs as against the surviving partner, see note to Woodward-Holmes Co. v. Nudd (Minn.) section II., subsections f, g, 27 L. R. A. 340, 350, 351.

I. The position of a surviving partner. The right of survivorship does not exist in the case of a purchase by mercantile partners of lands with partnership funds, there being no pretense

be with his cotenant, in which case the probate court has no jurisdiction. Hartnett v. Fegan (1876) 3 Mo. App. 1.

But surviving partners are rather joint tenants than tenants in common. Needham v. Wright (Ind.) Jan. 17, 1895.

The fact of there being a surviving partner does not give him at law any additional rights to the lands held by both. Percifull v. Platt (1880) 36 Ark. 456.

b. In equity.

If the facts established show that the lands were purchased for partnership purposes and with partnership funds for the use of the partnership, such lands become partnership assets and pass to the survivor as personal estate, charged with the liability of the partnership property and with its debts. Leary v. Boggs (1886) 1 N. Y. 8. R. 571, following Collumb v. Read (1862) 24 N. Y. 505; Hiscock v. Phelps (1872) 49 N. Y. 97; Fairchild v. Fairchild (1876) 64 N. Y. 471.

So if lands are purchased with partnership funds.

See also 37 L. R. A. 195; 48 L. R. A. 299.

estate, will make him chargeable as a trustee for the estates of the partners. 6. The widow and heirs of a deceased partner, who recover the legal title to lands on the basis of a trust in the administrator of the surviving partner of their intestate, cannot deny that he was their trustee for the purpose of avoiding the duty to account to him for advances for the purchase and improvement of the prop

erty.

7. The refunding with interest of money advanced by a person from whom the legal title is taken in equity may be made a condition of the

relief.

(October 29, 1894.)

Statement by Baker, J.:

The original bill herein was filed by Paradine Galbraith, widow of Franklin Galbraith, deceased, and Marcellus Galbraith, Mary E. Sells née Galbraith, Thomas M. Galbraith, Edward M. Galbraith, James T. Galbraith, George F. Galbraith, Frederick Galbraith, and Ralph Galbraith, children and only heirs-at-law of said deceased. The dower to the widow, and for the partition bill was for the assignment of homestead and among the heirs of some twenty-seven different tracts of land that are not now in controversy, and also for the partition among said heirs of the five tracts of land hereinafter described. Silas Tracy and other tenants in

complainants to me of

the Circuit Court for Henderson County denying their rights in certain real estate in reference to which they sought partition and an assignment of dower and homestead. Af firmed.

used for partnership purposes, the title being taken in the name of one partner, the firm being debited with expenses, and otherwise treated as partnership property. McKinnon v. McKinnon (1893) 56 Fed. Rep. 409, reversing 46 Fed. Rep. 713.

The equitable title vesting in the surviving partner so far as necessary to pay the liabilities of the partnership, including the amount due the surviving partner upon the settlement of the partnership account. Clay v. Field (1888) 34 Fed. Rep. 375; Weld v. Johnson Mfg. Co. (1893) 86 Wis. 552.

To which extent he has an equitable lien upon such real estate for his indemnity. Loubat v. Nourse (1853) 5 Fla. 350; Dyer v. Clark (1843) 5 Met. 562, 39 Am. Dec. 697; Howard v. Priest (1843) 5 Met. 582; Burnside v. Merrick (1842) 4 Met. 537; Sigourney v. Munn (1828) 7 Conn. 11; Pierce v. Trigg (1839) 10 Leigh, 406; Winslow v. Chiffelle (1824) 1 Harp. Eq. 25: Divine v. Mitchum (1844) 4 B. Mon. 489, 41 Am. Dec. 241.

And the equitable lien attaches as against the grantee of partnership property for which one partner has taken a promissory note in his own name. Houston v. Stanton (1846) 11 Ala. 412.

He takes the title, not as assignee, but as survivor, with a right and control over the property for such purposes, which both partners had before the death. Betts v. June (1873) 51 N. Y. 274; Tremper v. Conklin (1870) 44 N. Y. 58.

made defendants, as were also the widow and heirs-at-law of Jesse Kemp, deceased, and the widow and heirs-at-law of John J. Kemp, deceased; the allegation in regard to such widows and heirs being that they "claim to

His title thereto lasting until such estate is converted into money and the partnership debts paid. Betts v. June (1873) 51 N. Y. 274.

He being required to account for the real estate as a part of the assets of the copartnership. Delmonico v. Guillaume (1845) 2 Sandf. Ch. 366, 7 L. ed. 627.

And for the purpose of being so appropriated it must pass under the control of the surviving partner, to be by him disposed of for the payment of the debts. Breen v. Richardson (1883) 6 Colo. 605; Riddle v. Whitehill (1890) 135 U. S. 621, 34 L. ed. 282.

Remaining partnership funds liable in the bands of the partners to the payment of the firm liabilities. Shaw, Appellant (1889) 81 Me. 207.

Not descending to the heirs in equity, but remaining partnership estates in the bands of the surviving partners. Re Ransom (1883) 17 Fed. Rep. 331.

The surviving partner has a right to the control of the partnership effects, including real estate, until the partnership affairs are settled and the debts paid. Cobble v. Tomlinson (1875) 50 Ind. 550, Wilson v. Soper (1852) 13 B. Mon. 411, 56 Am. Dec. 573. And becomes entitled to the exclusive right of possession and management of the same for the ed.purpose of closing up the partnership business and paying the partnership debts. Offutt v. Scott (1872) 47 Ala. 104; Gillett v. Gaffney and Holton v. Guinn. supra.

This right is an equitable one accompanied by an equitable title. Megibben v. Perin (1892) 49 Fed. Rep. 183; Shanks v. Klein (1881) 104 U. S. 18, 26 L. 635; Roulston v. Washington (1885) 79 Ala. 529. Vested in him by reason of his being charged with the whole of the partnership debts. Betts v. June, supra.

The trust thereby reposed being to wind up the partnership matters in the best manner possible for all interested. Gillett v. Gaffney (1977) 3 Colo. 351; Offutt v. Scott (1872) 47 Ala. 104; Holland v. Fuller (1859) 13 Ind. 195; Needham v. Wright (Ind.) Jan. 17, 1895; Russell v. McCall (1894) 141 N. Y. 437; Case v. A beel (1829) 1 Paige, 393, 2 L. ed. 689; Williams v. Whedon (1888) 109 N. Y. 333; Preston v. Fitch (1893) 137 N. Y. 41; Martin v. Morris (1885) 62 Wis. 418.

And such is his position under section 198 of the California Probate Act. Smith v. Walker (1869) 38 Cal. 385, 99 Am. Dec. 415.

In his character of trustee he must dispose of them for the best interests of the estate of the deceased partner, and keep the representatives fully informed of his proceedings. Heath v. Waters (1879) 40 Mich. 457.

And account for all the receipts and disburse

To which it is primarily liable in his hands. Holton v. Guinn (1895) 65 Fed. Rep. 450; Gillett v. Gaffney (1877) 3 Colo. 351.

And to which end he is entitled to its use. Merritt v. Dickey (1878) 38 Mich. 41.

With a right in equity to call for a conveyance of the legal estate. Tillinghast v. Champlin (1856) 4 R. I. 173, 67 Am. Dec. 510.

Having the real substantive interest. Priest v. Choteau (1884) 85 Mo. 398, 55 Am. Rep. 377; Rossum V. Sinker (1883) 12 Cent. L. J. 202.

The heirs not being necessary parties for such purposes. Van Aken v. Clark (1891) 82 Iowa, 256.

The legal title to the partnership assets vesting in the survivor. Rice v. Merchant's & Planter's Nat. Bank of Montgomery (1893) 100 Ala. 617; Houston v. Stanton (1846) 11 Ala. 412; Hanway v. Robertshaw (1874) 49 Miss. 758.

And no one else can be regarded as having any

have some interest in some portion of said | Kemp, deceased, and the other undivided one premises herein described, but your orators half in trust for the heirs-at-law of John J. allege that whatever interest they or either Kemp, deceased; that the heirs-at-law of of them may have had is now owned by your Franklin Galbraith, deceased, hold said lands orators." The two widows and the two sets in like trust, and for the same purposes and of heirs answered the bill. Then two cross-parties; and that Martha J. Kemp and Louisa bills were filed in the cause, -one by Martha F. Kemp were each entitled to dower in an J. Kemp, the widow, and the heirs of John undivided one half of the premises. Issues J. Kemp, deceased, and the other by Louisa were framed upon the original bill and upon F. Kemp, the widow, and the heirs of Jesse the cross-bills. At the hearing the findings Kemp, deceased. Each of said cross-bills and decree of the circuit court, so far as it afclaimed that by reason of the matters and fected the matters here in controversy, are in things set forth in said cross bills, respect- substance that Franklin Galbraith, in his ively, Franklin Galbraith, at the time of lifetime, and at his death, held, and the comhis death, held the five tracts of land-i. e. plainants in the original bill, since his death, 100 acres off the east side of S. E. section hold, the five tracts of land above described 33, the E. N. E. section 33, the N. W. of in trust for the benefit of the heirs-at-law of N. E. section 33, the E.S. W. of N. E. Jesse Kemp and John J. Kemp, the undisection 33, and the N. W. section 34, all vided one half for each set of heirs; and that in the township 10 N., range 5 W., in Hen- the complainants in the original bill, heirs derson county, Illinois-one undivided one of Galbraith, are entitled to be reimbursed half in trust for the heirs-at-law of Jesse for all proper outlay over and above rents, legal interest in the assets. Bassett v. Miller (1878) |ered as part of the stock in trade, and converted 39 Mich. 133; Barry v. Briggs (1871) 22 Mich. 201; into personal estate, belonging to the surviving Pfeffer v. Steiner (1873) 27 Mich. 537; Merritt v. partner to enable him to pay the firm's debts. Dickey (1878) 38 Mich. 41. Pugh v. Currie (1843) 5 Ala. 446.

The power and authority which the law confers upon a surviving partner being quite full and tensive for the performance of all the business necessary to a complete settlement of the concern. Barton v. Lovejoy (1894) 56 Minn. 380.

The right to recover damages by reason of the ex-location of a railroad upon land originally purchased with partnership funds, for the use and occupation of the firm, vests in those who are the legal owners of the estate at the time the land is taken, and there being no joint debts of the partners and no equitable lien upon the damages in favor of the creditors, or of the surviving partner, the legal and equitable title to the damages is united and vested in the surviving member of the partnership, and the representatives of the deceased partner. Whitman v. Boston & M. Railroad (1861) 3 Allen, 133,

If, instead of applying the firm assets to the winding up of the business and the distribution of the surplus among those entitled, a surviving partner misappropriates and converts the same to his own use, a breach of trust ensues of which equity will take notice. Russell v. McCall (1894) 141 N. Y. 437.

His neglect to wind up the concern will not relieve the partnership assets in his bands from the lien of the partnership debts, nor permit the statute of limitations to run in favor of the heirs of the deceased partner, so as to enable them to obtain an interest in the property without paying off the indebtedness. Allen v. Withrow (1884) 110 U. S. 119, 28 L. ed. 90.

And the failure of a surviving partner, who is also the administrator of the estate of his deceased partner, to give the statutory bond, merely subjects him to displacement as administrator. Easton v. Courtwright (1884) 84 Mo. 27. following Matthews v. Hunter (1878) 67 Mo. 295; Hartnett v. Fegan (1876) 3 Mo. App. 1; Delmonico v. Guillaume (1845) 2 Sandf. Ch. 366, 7 L. ed. 627; Andrews v. Brown (1852) 21 Ala. 437, 56 Am. Dec. 252; Murphy v. Abrams (1874) 50 Ala. 293; Cobble v. Tomlinson (1875 50 Ind. 550; Merritt v. Dickey (1878) 38 Mich. 44, 45. Pierce v. Trigg (1839) 10 Leigh, 422, 423; Dyer v. Clark (1843) 5 Met. 576, 577, 39 Am. Dec. 697; TillInghast v. Champlin (1856) 4 R. I. 209, 67 Am. Dec. 510.

So if the surviving partner refuses to pay his own indebtedness to the firm the court will refuse aim relief. Ludlum v. Buchingham (1882) 35 N. J. Eq. 71.

Mortgaged property purchased for the use of the partnership, and paid for out of the partnership fund, improved and cultivated, the income received by the partnership constituting part of the partnership assets, passes to the surviving partner who is entitled to the possession and control thereof. Cilley v. Huse (1860) 40 N. H. 358; Benson . Ela (1857) 35 N. H. 420.

But in real estate purchased in the name of one partner, not intended or used for partnership purposes, the surviving partner takes no estate as survivor and consequently no interest therein passes to his assignee in bankruptcy; and there is no use or trust in his favor so far as his share of the purchase money is concerned, but his creditors can reach his proportion of it under the statute of trusts and uses. Cox v. McBurney (1849) 2 Sandf. 561.

In England, although an estate purchased by partners jointly for the purposes of their trade, will at law upon the death of one of them survive to the other, yet in equity it is considered as an estate in common, and if the representatives of a deceased partner claim his equity they must submit to the rule, that he who will have equity must do equity, and pay to the surviving partner whatever may be due to him on the partnership transactions; and in Virginia the jus accrescendi is abolished, the representatives of a deceased partner claiming the legal title can be put under no conditions, the surviving partner, if a creditor, baving no other remedy against the real estate than any other creditor has. Deloney v. Hutcheson (1823) 2 Rand. (Va.) 183.

a. How affected by state statute.

A surviving partner is something more than a mere tenant in common, as to both the real and personal estate of the partnership, being in possession of the whole property by virtue of his right as surviving partner, under section 198 of the Lands purchased with the funds of the partner- California Probate Act, and he is a trustee for ship for the purpose of sale to pay the debts of the the purposes of winding up the affairs of the firm, firm, and partially improved to enhance their and accountable for the profits of the realty, as value and give them ready sale, are to be consid-well as of the personalty, or the value of the use

issues, and profits, made by their father or joint names, the real estate above described. by themselves on account of said lands. The John J. Kemp died March 13, 1881. Jesse widow and heirs of Franklin Galbraith bring Kemp, as the surviving partner, filed in the the case to this court by appeal, and assign county court of Henderson county, on Sepvarious errors, and the appellees assign cross-tember 29, 1881, a partnership inventory,

errors.

The facts of the case in brief are substantially as follows: For a number of years prior to March 13, 1881, Jesse Kemp and John J. Kemp, brothers, were partners in farming and stock-raising and in dealing in stock. They do not seem to have had any fixed partnership name or designation. Most of the notes signed by them, so far as appears from the evidence, seem to have been signed with their individual names, thus: "Jesse Kemp. John J. Kemp. " One is signed, "J. & J. J. Kemp." An account against them was made out against Jesse and J. J. Kemp. The abstract of judgments shows six claims allowed "against the estate of John J. & Jesse Kemp.' They owned a large amount of personal property, and, in their

dated September 29, 1881, which inventory contains a description of the lands hereinabove described, and states the incumbrance on 240 acres of it to be a mortgage of $3,000 to I. J. Brook, and states that on the N. W. 34 there is a mortgage of $1,000, and it inventories debts amounting to $2,230. It also contains a long list of personal property. It purports to be "a true and correct inventory and exhibit of the real and personal estate belonging to the firm of Jesse and John J. Kemp at the time of the death of John J. Kemp." It was subscribed and sworn to by said Jesse Kemp. The appraisement of the partnership personal property amounted to $3,115.25. On October 18, 1881, Jesse Kemp filed in the county court a sale bill of personal property of "said firm of J. & J. J.

and occupation. Smith v. Walker (1868) 38 Cal. held that under the Vermont Statute of 1852 he was 385, 99 Am. Dec. 415.

The Act of Assembly of North Carolina (Bat. Rev. Stat. chap. 42, § 2), destroying the survivorship in joint estates, whether real or personal, expressly provides that when such estates are held for purposes of trade, commerce, or manufacture, and one tenant dies, the estate shall be "vested in the surviving partner, in order to enable him to settle and adjust the partnership business, or pay off the debts which may have been contracted in pursuit of the said joint business," and then he shall account to the parties entitled as heirs, ad

ministrators, and assigns of the deceased partner.

Mendenhall v. Benbow (1881) 84 N. C. 646.

both in law and equity liable to the partnership claim, which the surviving partner had against the retiring one. Kendrick v. Tarbell (1855) 27 Vt. 512

For moneys advanced for the use and benefit of

(1884) 85 Mo. 398, 55 Am. Rep. 373; Willet v. Brown (1877) 65 Mo. 138, 27 Am. Rep. 265.

the partnership, or for the benefit of the estate, The Washington Statute of 1862, relating to the being a creditor of the estate therefor. Holton v. settlement of partnership affairs, does not termi-Guinn (1895) 65 Fed. Rep. 450; Priest v. Chouteau nate the common-law rights of the surviving partner, no method being pointed out whereby he set the machinery thereby provided in motion, and unless set in motion by the representatives of a deceased partner it has no effect upon the partnership property. Dyer v. Morse (1895) (Wash.) ante, 89.

can

for the payment of such balance upon a settlement Equity holding such estate in his bands as a lien of the partnership accounts. Gillett v. Gaffney (1877) 3 Colo. 351.

And the Washington Partnership Act of 1862 has Such statute is in aid of the common law and not terminated the common-law rights of the surnot exclusive thereof, its object being to give rep-viving partner who is entitled as equitable owner, resentatives of a deceased partner the right to invoke its aid, either in having another person than such survivor close up the estate, or to have him pay security. Ibid.

And it cannot be presumed that the legislature intended thereby to destroy the common-law interest of a surviving partner. Ibid.

d. As creditor.

A surviving partner has a right to reimburse himself out of the proceeds of the sale of a deceased partner's share of real estate, the amount of moneys advanced by him, and the liabilities incurred by himself personally in the conduct of the business and the improvement of the property. Mendenhall v. Benbow (1881) 84 N. C. 646.

His claim constituting a prior incumbrance upon the partnership fund, including the real estate, is properly dischargable therefrom, and the adjudication in favor of such obligation cannot be asBailed in the absence of fraud or collusion. Ibid.

The rights, however, are only the same as those of any other creditor, no matter whether he holds the whole title or a part thereof or none. Huston v. Neil (1873) 41 Ind. 504.

Where real estate was purchased by a partner who held the share of one other partner, it was

the common-law rights of the surviving partner
having been changed by the statute only to the ex-
in addition to and regulative of such common-law
tent therein provided, the statute being held to be
rights. Dyer v. Morse (1895) (Wash.) ante, 89.
third person to purchase the deceased partner's in-
A surviving partner standing by and allowing a
terest in real estate, upon which he claims a lien,
is not estopped, not being present at the time of
the purchase and having no knowledge of the in-
tention to buy, doing nothing to induce the pur-
chase and therefore assuming no responsibility in
regard to it. Taylor v. Farmer (1886) (Ill.) 6 West.
Rep. 710.

Where a partner died subsequent to the passing of the Washington statute, relating to the settlement of partnership affairs (1862) and there was no attempt to pass the title to the real estate until the year 1883, when the surviving partner claimed it under a lien for money advanced by him in payment of partnership debts, it was held that although a subsequent act relating to such estate bad been passed in the year 1873, yet the claim of such surviving partner accrued prior to the subsequent act, he was therefore entitled to his lien as at common law, the common-law rights not being affected by the Statute of 1862. Dyer v. Morse (1895) (Wash.) ante, 89.