that, according to the abstract, the defendant had no title, and defendant was informed by such purchaser of the opinion of said attorneys. Defendant, believing he had no title, at an expense of $526 then procured a conveyance to himself from said original patentee, and claims that this expense should be allowed bim in said accounting as a part of the cost of the land to be deducted from such proceeds of said sale, and that plaintiff is entitled to only one half of the balance of such proceeds, after this $526 is also deducted therefrom. It is further found by the court that defendant did not inform plaintiff of any of said negotiation, or of the apparent defect in said title, or show him or inform him of said abstract, or consult him as to purchasing the supposed title of said patentee, and that plaintiff had no knowledge or notice of any of these things, or of the sale of said property to said purchaser from defendant, until after the deed thereof was recorded, and he discovered it by an examination of the records; "that had said defendant exhibited said abstract of title to said plaintiff or informed him in what respect said title of said defendant was claimed to be defective, seid plaintiff could at once have informed said defendant that said abstract was not a true and correct abstract of title to said lands;" and "that plaintiff was not in any manner ever consulted by defendant in regard to said supposed defect of title." The court further finds

ownership of property may remain in one, while the partnership shall have only the use of the property, or may make any other regulations as between themselves in regard to an ownership of property, used in connection with the business of the copartnership not prohibited by law. Taft v. Schwamb (1875) 80 II. 289.

Yet it cannot be held by the separate owner except to the extent of his interest in the final balance. Parker v. Bowles (1876) 57 N. H. 491; Burnside v. Merrick (1842) 4 Met. 537.

If such lands are not necessary for the payment of the debts of the firm, they are real estate to all intents and purposes, and no more of them than are necessary for such purpose can be sold. Weld v. Johnson Mfg. Co. (1893) 86 Wis. 552.

Partners, so far as real estate is concerned, are joint tenants without the right of survivorship, they are seised per mi et per tout. Anderson v. Tompkins (1820) 1 Brock. 456.

that defendant acted in good faith in the saleof the land, and in expending said sum of $526 in attempting to cure the supposed defect in his title, but holds that he cannot compel plaintiff to stand one half or any part of such expense. We are of the same opinion. If defendant did not act in bad faith, he was, to say the least, grossly negligent. It does not appear that the plaintiff was not accessible and could not be communicated with in a reasonable time. This land was the only partnershipproperty and its purchase and sale was the only partnership business. It was not an act in the usual course of the partnership business, but one which went to the very foundation of the partnership. It is found by the court that the plaintiff, and not the defendant, conducted the negotiations for the purchase of this land, and procured the conveyance to defendant; and he should be presumed to have had some knowledge of the state of the title. No reason is given by defendant why all the negotiations for the sale of the land, and the purchase of this supposed title by him, were kept secret from plaintiff. In every important exigency the partner about to act should consult the other partner, at least if there are no circumstances which excuse him from so doing.

The order appealed from should be affirmed.
So ordered.

Gilfillan, Ch. J., absent on account of sickness, took no part.

fillment of all partnership obligations. Wilcox v. Wilcox (1866) 13 Allen, 252.

Each partner has a right to have the effects of the firm appropriated to the firm's debts. Pearson v. Keedy (1845) 6 B. Mon. 128, 43 Am. Dec. 160; Rainey v. Nance (1870) 54 Ill. 29.

As between themselves, they may use it as part and parcel of the firm assets, or they may divide it among themselves and hold in severalty. Holt's App. (1881) 98 Pa. 257.

The legal title in partnership lands forming part of the partnership stock is subordinated to incidents of partnership funds and accounting. Godfrey v. White (1880) 43 Mich. 171; Drewry v. Montgomery (1861) 28 Ark. 256; Roberts v. McCarty (1857) 9 Ind. 16, 68 Am. Dec. 604; Priest v. Chouteau (1884) 85 Mo. 398, 55 Am. Rep. 377.

The rule that partnership property must first be applied to the payment of partnership debts attaches to real estate as well as to personalty, no matter in whom the legal title may be vested, the

The partner is to be regarded in such cases as holding only an interest in the stock or capital of the partnership, which is personal property. Hewitt v. Rankin (1875) 41 Iowa, 35.

While the legal title upon the death of a partner will go in ordinary course of descent upon the death of a partner without survivorship, yet the equitable interest will, after the ascertainment of its value by sale, be distributable according to the supposed intention of the deceased partner, as personal property. Lenow v. Fones (1886) 48 Ark. 562.

Before it can be taken as a part of the separate estate of the individual copartner, the legal title, converted into a trust, is held devoted to the ful

nership stock being the balance found due to him after the payment of all the partnership debts and the adjustment of the partnership account between himself and his copartners. Bopp v. Fox (1872) 63 Ill. 540; Rainey v. Nance (1870) 54 Ill. 29; Taylor v. Farmer (1886) (Ill.) 6 West. Rep. 710; Simpson v. Leech (1887) 86 Ill. 286; Dyer v. Clark (1843) 5 Met 562, 39 Am. Dec. 697; Howard v. Priest (1843) 5 Met. 582; Morgan v. Olvey (1876) 53 Ind. 6; Meridian Nat. Bank v. Brandt (1875) 51 Ind. 56; Henry v. Anderson (1881) 77 Ind. 361; Huston v. Neil (1873) 41 Ind. 504; Needham v. Wright (Ind.) Jan. 17, 1895; Matlock v. Matlock (1854) 5 Ind. 403; Allen v. Wells (1839) 22 Pick. 450, 33 Am. Dec. 757; Hewitt v. Rankin (1275) 41 Iowa, 35; Hoyt v. Hoyt (1886) 69 Iowa, 174; Van Aken v. Clark (1891) 82 Iowa, 256; Easton v. Courtwright (1884) 84 Mo. 27; Carlisle v. Mulbern (1853) 19 Mo. 56; Lindley v. Davis (1887) 7 Mont. 206; Buffum v. Seaver (1844) 16 N. H. 160; Parker v. Bowles (1876) 57 N. H. 491; Ubler v. Semple (1869) 20 N. J. Eq. 288; Staats v. Bristow (1878) 73 N. Y. 264; Lucas v. Laws (1856) 27 Pa. 211; Erwin's App. (1861) 39 Pa. 535, 80 Am

of the firm and distributing the residue to those entitled thereto.

1 Woerner, Administration, p. 283, and cases cited.

Partnership real estate, when acquired and held as partnership property and with partnership funds, is, in equity, treated as personalty.

Collumb v. Read, 24 N. Y. 505; Paige v. Paige, 71 Iowa, 318, 60 Am. Rep. 799; Allen v. Withrow, 110 U. S. 119, 28 L. ed. 90; Shanks v. Klein, 104 U. S. 18, 26 L. ed. 635; Uhler v. Semple, 20 N. J. Eq. 283; Ross v. Henderson, 77 N. C. 170; Bopp v. Fox, 63 Ill. 540; Shafer's App. 106 Pa. 49: Page v. Thomas, 43 Ohio St. 38, 54 Am. Rep. 788.

At the common law on the death of one of the partners the partnership real estate is im pressed with the character of personalty and devolves on the survivor, and he can sell it for the purpose of winding up the affairs of the partnership.

1 Lindley, Partn. 5th ed. Am. notes by Wentworth, 341; Shanks v. Klein, supra.

The conveyance of partnership real estate by the surviving partner passes the equitable title to the grantee, and equity will compel the holders of the legal title to convey it.

Shanks v. Klein, supra; Andrews v. Brown, 21 Ala. 437, 56 Am. Dec. 252; Dupuy v. Leavenworth, 17 Cal. 262; Easton v. Courtwright, 84 Mo. .37.

It has likewise been held that the surviving partner has an equitable lien on the partnership real estate for his indemnity against the

The partners of a firm cannot plead ignorance of its transactions. Thomas v. Scott (1842) 3 Rob. (La.) 256.

Under the law governing partnerships, one partner has not the power to convey real estate of the firm, either by deed or assignment, nor make contracts, written or verbal, specifically enforceable against the others. Ruffner v. McConnel (1855) 17 Ill. 212, 63 Am. Dec. 362; Piatt v. Oliver (1842) 3 McLean, 28; Tapley v. Butterfield (1840) 1 Met. 515, 35 Am. Dec. 374; Deckard v. Case (1836) 5 Watts, 22, 30 Am. Dec. 287; Sloo v. State Bank of Illinois (1837) 2 Ill. 428.

debts of the firm and for the balance that may be due to him from the firm.

Gray v. Palmer, 9 Cal. 634; Dyer v. Clark, ō Met. 562, 39 Am. Dec. 697; Parsons, Partn. p. 441.

He might also hold the assets of the firm in his possession until all the firm debts were paid, including indebtedness to himself.

Clay v. Freeman, 118 U. S. 97, 30 L. ed. 104.

The remedy or procedure provided by the Act of 1862 is cumulative merely and does not take away the common law in relation to the same matter.

Nelson v. Hayner, 66 Ill. 487; Sutherland, Stat. Constr. §§ 202, 399, 400; Sedgw. Stat. & Const. L. 2d ed. p. 342.

Under similar statutes in other states, it has been held that until the representative of the deceased partner takes the steps pointed out by the statute, the surviving partner retains his common-law rights and powers over partnership property without giving bond.

Bredow v. Mutual Sav. Inst. 28 Mo. 181; Easton v. Courtwright, 84 Mo. 27; Holman v. Nance, 84 Mo. 674; Weise v. Moore, 22 Mo. App. 530; Teney v. Laing, 47 Kan. 297.

Having slept upon their rights so long and permitted the defendants and their grantor to pay taxes and make extensive improvements upon this property in good faith relying upon the sufficiency of title, it is now too late for them to seek relief at the hands of a court of equity.

Bigelow, Estoppel, 3d ed. p. 565; Brazee v.

L. pt. 2, p. 532; Fant v. West (1856) 10 Rich. L 151; Salinas v. Bennett (1890) 33 S. C. 285, to the same effect.

One partner, in the presence of his copartners, may, by parol authority, execute a deed for them in a transaction in which they are all interested, which will amount to an execution of the deed of all the partners, though sealed by one of them only. Smith v. Kerr (1849) 3 N. Y. 144; Ball v. Dunsterville (1791) 4 T. R. 313; Williams v. Walsby (1803) 4 Esp220; Steiglitz v. Egginton (1815) 1 Holt, N. P. 141 Brutton v. Burton (1819) 1 Chitty, 707.

Yet where no evidence is offered to prove an au

In all purchases and sales made on account of a partnership, every partner is bound to act expressly for the benefit of the partnership, and has no right to voluntarily place himself in a situation in which his bias and interest will be in opposition to the interest of the partnership. Kilbourn v. Latta (1886) 5 Mackey, 304, 60 Am. Rep. 373.

Yet the principle once established, that a partner may give his copartner authority by parol to bind him by instrument under seal, must extend as well to instruments affecting real estate as to others. Wilson v. Hunter (1862) 14 Wis. 683, 80 Am. Dec. 795.

But the power of one partner to bind the other by deed cannot be proved by parol. Napler v. Catron (1841) 2 Humph. 534.

One partner may, however, bind his copartners by deed, if the other partners are present and expressly authorize the act, or the evidence of their conduct and course of business is such as to justify the inference that such authority is given. Stroman v. Varn (1883) 19 S. C. 307,-in which case a partner mortgaged partnership real estate, signing the firm's name. Fleming v. Dunbar (1835) 2 Hill,

in such partnerships for one partner to buy land in the name of the firm, or that the existence of such authority is necessary in order to carry on the business for which the partnership is created, no such power can be implied from the mere existence of the partnership. Judge v. Braswell (1877) 13 Bush, 69, 26 Am. Rep. 185.

For one partner cannot by his own act defeat the rights of his copartners. Kerr v. Kingsbury (1878) 39 Mich. 150, 33 Am. Rep. 362.

Equity restricting the partners to the same extent in their disposition of them as obtains in regard to personalty. Arnold v. Wainwright (1861) 6 Minn. 358, 80 Am. Dec. 448.

The Iowa Code, section 2238, which provides that a minor is bound not only by contracts for necessaries, but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority and restores to the other party all money or property received by him by virtue of the contract and remaining within his control at any time after his attaining his majority, applies to a contract entered into by an infant partner in a partnership concern with respect to the purchase of real estate, and such a disaffirmance would

Schofield, 2 Wash. Terr. 220; Galliher v. Cadwell, 3 Wash. Terr. 511; Sumner v. Seaton, 47 N. J. Eq. 103; Marines v. Goblet, 31 S. C. 153; Fraker. Houck, 36 Fed. Rep. 407; Cheesebrough v. Parker, 25 Kan. 566.

Messrs. Smith & Felger and Harry Ballinger, for respondent:

At the common law, the powers of the survivor extended no further than was necessary to the proper settlement of the partnership business; and for this purpose the partnership was presumed to continue and the survivor was its agent.

For a discussion of these principles see2 Lindley, Partn. p. 1299, note; Freeman, Co tenancy & Partition, § 119; McNeil v. First Cong. Soc. of San Francisco, 66 Cal. 105; Martin v. Morris, 62 Wis. 418; 1 Warvelle, Vendors, p. 65, § 9, note 1; Boone, Real Prop. § 364, notes 7, 8; 1 Washb. Real Prop. pp. 702 -703, par. 3, and notes.

A deed by a surviving partner, as such, should be given in the name of the firm, or it should otherwise appear in the deed that it was the intention that the partnership interest should pass.

Where a statute is enacted which is repug. nant to the common law, the common law is abrogated so far as such conflict extends; and if the statute covers the entire subject-matter, and provides a complete method of procedure, repugnant to the system provided by the common law though not conflicting in all of its terms, the common-law system is abolished. Endlich, Interpretation of Statutes, 199-201;

not affect the partnership agreement. Mehlhop v. Rae (Iowa) Jan. 27, 1894.

A judgment confessed by one partner in the firm name is good as between himself and the creditor, although void as to his copartners, not only as evidence of the amount of his indebtedness, but as a lien upon his partnership real estate. York Bank's App. (1860) 36 Pa. 460.

b. To contract and purchase.

A partner may contract debts and make contracts which will indirectly reach the real estate, as such must be finally subject to the debts of the firm. Goddard v. Renner (1877) 57 Ind. 532.

Sutherland, Stat. Constr. 204; District Twp. of Dubuque v. Dubuque, 7 Iowa, 262; Stephens v. Smith, 77 U. S. 10 Wall. 321, 19 L. ed. 933; United States v. Tynen, 78 U. S. 11 Wall. 88, 20 L. ed. 153; United States v. Three Hundred and Fifty-six Caddies of Tobacco, 78 U. S. 11 Wall. 652, 20 L. ed. 235; Bartlet v. King, 12 Mass. 545; Com. v. Cooley, 10 Pick. 39; Pierpont v. Crouch, 10 Cal. 316; State v. Conkling, 19 Cal. 501.

The statutory method for the settlement of partnership estates is exclusive.

Shattuck v. Chandler, 40 Kan. 516; Cook v. Lewis, 36 Me. 340; Putnam v. Parker, 55 Me. 235; Stang v. Hirst, 61 Me. 17; Pope v. Jackson, 65 Me. 163.

Appellants and their grantors occupied the land without giving notice of ouster to their co-tenants.

Their co-tenants had a right to presume that their possession was amicable; and such is the conclusive presumption of the law.

McClaskey v. Barr, 47 Fed. Rep. 154; Freeman, Co-tenancy & Partition, 166, 167; Northrop v. Marquam, 16 Or. 173; Miller v. Myers, 46 Cal. 539; Unger v. Mooney, 63 Cal. 586, 49 Am. Rep. 100; Mc Neil v. First Cong. Soc. of San Francisco, 66 Cal. 105.

Hoyt, J., delivered the opinion of the court:

This action was heard in the superior court upon stipulation of counsel, and an agreed statement of facts. By the stipulation it was agreed that the cause should be tried as one

Although one partner may bind the firm by contract respecting personal estate without special authority, yet he cannot do so as to real estate even though used and employed in the partnership business. Lawrence v. Taylor (1843) 5 Hill, 107.

When the partnership business is to deal in real estate, one partner has ample power, as general agent of the firm, to enter into an executory contract for the sale of such real estate enforcible in equity. Chester v. Dickerson (1873) 54 N. Y. 1, 13 Am. Rep. 550, affirming (1868) 52 Barb. 349. Lawrence v. Taylor, supra, to the same effect.

In the latter case the partner had received the purchase money and the sale had been ratified, but no portion of the purchase money had been paid

Partnership lands are no exception to the rule that an oral contract to convey is not binding. Brewer v. Cropp (Wash.) Nov. 17, 1894. Nichols v. Oppermann (1893) 6 Wash. 618.

1894.

And by a purchase thereof. Wormser v. Meyers (1877) 54 How. Pr. 189.

Even though the copartners may be ignorant of it. Copp v. Longstreet, supra.

And such contract will in equity be specifically enforced against all the partners. Rovelsky v. Brown (1891) 92 Ala. 522.

Such contract being within the scope of the partnership business. Paton v. Baker (1883) 62 Iowa, 704.

The purchase of land for the purpose of carrying on an ordinary and legitimate business (furnace operations), is within the scope of the ordinary dealings of the firm, which will be bound thereby