All kinds of property may be held in partnership; and there may be a partnership to trade in land, (f)1 or to cultivate land *for the common profit;(g) but real estate is still subject, to a certain extent, to the rules which govern that kind of property. 2 There has been much conflict and uncertainty as to some of the rights and remedies of partners and creditors in respect to real property belonging to the partnership, both in England and in this country. But we consider the established and the just rule to be, that when real estate is purchased with partnership funds, for partnership purposes, it will be treated as partnership property, and held like personal property, chargeable with the debts of the firm, and with any balance which may be pondence between him and the merchant described the transaction as a joint concern, the broker was held to be interested as a partner in the goods, and could pledge the whole of them. Reid v. Hollinshead, 4 B. & C. 867. Abbott, C. J.: " Such a partnership may well exist, although the whole price is in the first instance advanced by one partner, the other contributing his time and skill and security in the selection and purchase of the commodities." But where the broker merely acts as agent, and in lieu of commissions is to receive a certain proportion of the profits arising from the sale, and bear a certain proportion of the losses, the property in the subject of the sale does not vest in him as a partner, although he may be liable as such to third persons. Smith v. Watson, 2 B. & C. 401. So where one partner furnishes capital, and the other labor, mutual interest in the profits alone will not render the latter liable to the former for contribution for any loss of capita] in the adventure. Heran c. Hall, 1 B. Mon. 159. See also Berthold v. Goldsmith, 24 How. 536.

(f) Campbell v. Colhoun, 1 Penn. 140; Fall River Wharf Co. v. Borden, 10 Cush. 458; Clagett v. Kilbourne, 1 Black, 346.

(g) Allen v. Davis, 13 Ark. 28.

1 Such a partnership may be created orally, Causler v. Wharton, 62 Ala. 358; Chester v. Dickerson, 54 N. Y. 1; Holmes v. McCray, 51 Ind. 358; Hirbour v. Reeding, 3 Montana, 15; McCully v. McCully, 78 Va. 159; contra is Parker v. Bowles, 57 N. H. 491. See Williams v. Gillies, 75 N. Y. 197.

2 If purchased by partnership funds for partnership purposes, such real estate is firm property, whether one or all the partners hold the legal title, Davies v. Games, 12 Ch. D. 813; Offutt v. Scott, 47 Ala. 104; Bopp v. Fox, 63 Ill.54; Johnson v. Clark, 18 Kan. 157; Whitmore v. Shiverick, 3 Nev. 288; Collins v. Decker, 70 Me. 23; Ross v. Henderson, 77 N. C. 170; Knott v. Knott, 6 Oreg. 112; West Hickory Ass. v. Reed, 80 Penn. St. 38; Lime Rock Bank v. Phetteplace, 8 R. I. 56; Fairchild v. Fairchild, 64 N. Y. 471; if not so purchased, it belongs to the partners individually, Homer v. Homer, 107 Mass. 82; Price v. Hicks, 14 Fla. 565; Morgan v. Olvey, 53 Ind. 6. Such real estate must satisfy firm in preference to individual creditors Hiscock v. Phelps, 49 N. Y. 97; Rose v. Izard, 7 S. C. 442. A surviving partner can sell the firm real estate, and equity will compel the heir holding the legal title to convey it, Murphy v. Abrams, 50 Ala. 293; Keith v. Keith, 143 Mass. 262; Mathews v. Hunter, 67 Mo. 293; whether necessary to pay debts or not, Soloman v. Fitzgerald, 7 Heiskell, 552. - K.

due from one partner to the other, upon the winding up of the affairs of the firm. But it seems to be the prevailing rule in this country, *that as between the personal representative and the heirs of a deceased partner, his share of the surplus of the real estate of the partnership, after all its debts are paid, and the equitable claims of its members are adjusted, will be considered and treated as real estate.1 It has been held, that the real estate of a partnership does not acquire the incidents or liabilities of personal estate, unless there be an agreement of the partners to that effect; and that then this change in the legal nature of the property results from this agreement; (j) but we doubt the * accuracy of this ruling; unless it is admitted that such agreement may be inferred from the purchase of the property by partnership funds, and the use of it for partnership purposes.2 It seems that improvements made with partnership funds on real estate belonging to one of the partners, will be treated as the personal property of the partnership. (k)

(j) In Coles v. Coles, 15 Johns. 159; Thornton v. Dixon, 3 Bro. Ch. 199; Bell v. Phynn, 7 Ves. 453; Balmain v. Shore, 9 id. 500; Smith v. Jackson, 2 Edw. Ch. 28, language is used which might have this interpretation. But see Collumb v. Read, 24 N. Y. 505; Ripley v. Water-worth, 7 Ves. 425; Collyer, Part. § 142;

Selkrig v. Davies, 2 Dow, 242; Craw-shay v. Maule, 1 Swanst. 521; Townsend v. Devaynes, 1 Montague on Partnership, App. n. (2 A), Jarvis v. Brooks, 7 Poster (N. H.), 37; North Penn. Coal Co.'s Appeal, 45 Pa. 181.

(k) Burdon v. Barkus, 3 Giff. 412; 4 De G. F. & J. 42; Chittenden v. Witbeck,

1 Espy v. Comer, 76 Ala. 501; Lenow v. Fones, 48 Ark. 557; Robertson v. Baker, 11 Fla. 192; Strong v. Lord, 107 Ill. 25; Grissom v. Moore, 106 Ind. 296; Lowe v. Lowe, 13 Bush, 688; Buffum v. Buffum, 49 Me. 108; Goodburn v. Stevens, 5 Gill, 1; Shearer v. Shearer, 98 Mass. 107; Harris v. Harris, 153 Mass. 439, 443; Scruggs v. Blair, 44 Miss. 406; Holmes v. McGee, 27 Mo. 597; Campbell v. Campbell, 30 N. J. Eq. 415; Fairchild v. Fairchild, 64 N. Y. 471; Rammelsberg v. Mitchell, 29 Ohio St. 22, 53; Leaf's Appeal, 105 Pa. 505; Bowman v. Bailey, 20 S. C. 550; Griffey v. Northcutt, 5 Heisk. 746; Dewey v. Dewey, 35 Vt. 555; Diggs' Adm. v. Brown, 78 Va. 292; Martin v. Morris, 62 Wis. 418.

In England and Ireland, however, real estate belonging to a partnership is treated in equity as personalty for all purposes, - not only so far as it is needed for the payment of creditors and settlement of accounts between the partners, as in the United States, but also as between the heirs or widow of a deceased partner and his personal representatives. Phillips v. Phillips, 1 Myl. & K. 649, 663; Broom v. Broom, 3 Myl. & K. 443; Murtagh v. Costello, 7 Irish L. R. 428; Atty. Gen. v. Hubbuck, 10 Q. B. D. 488; 13 Q. B. D. 275. And the law in Canada seems to be the same as in England. Sanborn v. Sanborn, 11 Grant's Ch. 359.

2 The true rule seems to be that whenever real estate is partnership property, it will be treated as personalty to the extent indicated above. Whether a piece of real estate is or is not partnership property depends on the intention of the partners. And this intention may be ascertained either from express agreements or from the way the property was acquired and dealt with, as shown by whether it was purchased with partnership funds, whether it was used in the business, who paid the taxes, who paid for insurance and repairs, who collected the rents, and other like circumstances. See Phillips v. Phillips, 1 Myl. & K. 649; Hatchett v. Blanton, 72 Ala. 423; Tillotson v. Tillotson, 34 Conn. 335; Price v. Hicks, 14 Fla. 565; Morgan v. Olvey, 53 Ind. 6; Flanagan v. Shuck, 82 Ky. 617; Richards v. Manson, 101 Mass. 482; Messer v. Messer, 59 N. H. 375; Collumb v. Read, 24 N. Y. 505; Ross v. Henderson, 77 N. C. 170; Warriner v. Mitchell, 128 Pa. 153; Collner v. Greig, 137 Pa. 606; Providence v. Bullock, 14 R. I. 353.

The widow has her dower in the estate after the debts are paid, but not until then. (l) 1 Although the legal title is protected, the party having such title is held, if necessary, as trustee for partnership purposes, or for the surviving partner. And if a partner buys land out of partnership funds, and takes title *to himself, he may be held as trustee for the partner- ship.(m) It is to be remembered, however, as before stated, that this rule extends only so far as may be made necessary by the business or debts of the partnership, and as soon as this necessity ceases, any remaining real estate has all the incidents of real property, as to conveyance, inheritance, and dower. And where the land * purchased with the partnership funds 53 is afterwards sold by the partner who has the legal title to the whole, or to a part as tenant in common, neither the firm nor its creditors have any lien on the land for partnership purposes, against a purchaser without notice or knowledge, where the deed to the partners did not describe them as members of a firm, or partners, or otherwise indicate the fact that the land was purchased as partnership property.2 But a purchaser with actual or constructive notice that the land is substantially, although not formally, partnership property, holds it chargeable with the debts of the partnership; and this is the case even if he had no knowledge what those debts were, or even of their existence. (o)

50 Mich. 401; Dunnell v. Henderson, 23 N. J. Eq. 174; Buckley v. Buckley, 11 Barb. 43.

(l) Goodburn v. Stevens, 5 Gill, 1; Greene v. Greene, 1 Hamm. 244; Rich-ardson v. Wyatt, 2 Desaus. 471; Wool-dridge v. Wilkins, 3 How. (Miss.) 360, 371; Burnside v. Merrick, 4 Met. 541; Dyer v. Clark, 5 Met. 562. Upon the dissolution of the partnership, by the death of one of the partners, the survivor has an equitable lien on such real estate for his indemnity against the debts of the firm, and for securing the balance that may be due to him from the deceased partner on settlement of the partnership accounts between them; and the widow and heirs of such deceased partner have no beneficial interest in such real estate, nor in the rent received therefrom after his death, until the surviving partner is so indemnified. See Simpson v. Leech, 86 Ill. 286; Howard v. Priest, 5 Met. 582; Peck v. Fisher, 7 Cush. 386; Arnold v. Wainwright, 6 Minn. 358; Smith v. Smith, 5 Ves. 189.

(m) Pierce v. Trigg, 10 Leigh, 406;

Pugh v. Currie, 5 Ala. (N. s.) 446; Burn-side v. Merrick, 4 Met. 541. See Buchan v. Sumner, 2 Barb. Ch. 165; Smith v. Tarlton, 2 Barb. Ch. 236; McGuire v. Ramsey, 4 Eng. (Ark.) 518; Hoxie v. Carr, 1 Sumner, 182. In the case of Phillips v. Crammond, 2 Wash. C.. C. 445, Washington, J., in delivering his opinion, said: " The general principle is. that if' a receiver, executor, factor, or trustee, lay out the money which he holds in his fiduciary character, in the purchase of real property, and take the conveyance to himself, he who is entitled to the money, which has been thus invested, may follow the same, and consider the purchase as made for his use, and the purchaser a trustee for him. Upon the same principle, I conceive that a resulting trust would arise to a partnership concern in lands purchased by one of the partners, and paid for out of the joint funds." But the partner has no interest in the estate purchased in his copartner's name, unless it was intended or used for partnership purposes. Cox v. McBurney, 2 Sandf. 561.

1 So of a right to a homestead exemption. Robertshaw v. Hanway. 52 Miss. 718. Mowry v. Bradley, 11 R. I. .i7o, was to the effect that the wife of a partner whose interest in the firm real estate was simply equitable could claim dower in the surplus proceeds of its sale after payment of firm debts. In England and Canada, as it is now held that real estate belonging to a partnership is in equity regarded as personalty for all purposes, a widow would never have dower in the surplus. See ante, p. * 150, note 1.

2 Cavander v. Bulteel, 9 Ch. 79; McNeil v. Cong. Soc. 66 Cal. 105; Peeves v.