This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Not infrequently the courts speak as if it were by reason of the doctrine of conversion, or partial conversion, that partnership land is subject to the payment of firm debts and the adjustment of equities between the members of the firm, but this can hardly be so. It is so subject because it is partnership property, and the statement that partnership realty is treated as personalty for these purposes can mean merely that it is treated in the same way as personalty is treated.
95. Coolidge v. Burke, 69 Ark. 237, 62 S. W. 583; Brewer v. Browne, 68 Ala. 210; Strong v. Lord, 107 111. 25; Branner v. Nichols, 61 Kan. 356, 59 Pac. 633; Carter v. Flexner, 92 Ky. 400, 17 S. W. 851; Shearer v. Shearer, 98 Mass. 107; Way v. Stebbins, 47 Mich. 296, 11 N. W. 166; Flint v. Flint, 87 N. J. Eq. 560, 100 Atl. 754; Smith v. Jackson, 2 Edw. Ch. (N. Y.) 28; Sherrod v. Mayo, 156 N. C. 144, 72 S. E. 216; Weld v. Johnson Mfg. Co. 86 Wis. 552, 57 N. W. 374; and see cases cited 25 Am. & Eng. Ann. Cas. 1213.
96. Post Sec. 218, note 52.
97-99. Ante Sec. 123.
It has been held that, by reason of the existence of partnership realty, a partner was qualified as a freeholder to sign a petition in reference to a liquor license. Tat-tersall v. Nevels, 77 Neb. 843, 110 N. W. 708. See Baxter v. Brown, 7 Man. & Gr. 198, to the effect that a partner is entitled, by reason of the existence of partnership realty, to vote as one having a freehold same proportion as the other partnership property,8 and equity will partition it between them accordingly.9
- The legal title. As above remarked, it is immaterial in whom the legal title is vested, and it may be in one or more of the partners, or in a person who is not a member of the partnership. A conveyance to the partners for partnership purposes makes them, in England, in accordance with the general rule there prevailing, joint tenants as regards the legal title, with the right of survivorship, and the same view might, it seems, be adopted in those states in which trustees take as joint tenants,1 since the partners are in such case trustees. Almost invariably, however, in this country, the partners taking the legal title have been regarded as taking it as tenants in common,2 with the result that on the death of one of them an undivided interest in the legal title vests in his heirs.3 The heirs, however, hold such interest, as did their ancestor, subject to the trust for the partnership, and if the surviving partner or partners dispose of the land for the purpose of settling the partnership affairs, the heirs will be comThe latter case has however been questioned. See Watson v. Black, 16 Q. B. D. 270.
1. Ante Sec. 191, notes 39, 40.
2. Blanchard v. Floyd, 93 Ala. 53; Taylor v. McLoughlin, 120 Ga. 703, 48 S. E. 203; Galbraith v. Gedge, 16 B. Mon. (Ky.) 631; Dyer v. Clark, 5 Mete, (Mass.) 532; Whitney v. Cotton, 53 Miss. 689; Willet v. Brown, 65 Mo. 138, 27 Am. Rep. 265; Adams v. Church, 42 Ore. 270, 59 L. R. A. 782, 95 Am. St. Rep. 740, 70 Pac. 1037; Greene v. Graham, 5 Ohio 264; Pierce's Admr. v. Trigg's Heirs, 10 Leigh (Va.) 406.
The Uniform Partnership Act, so called, prepared under the supervision of a committee of the
American Bar Association, declares
(section 25) that a partner is a
"tenant in partnership" of "specific partnership property," and that on the death of a partner his interest vests in the surviving partner or partners, except where the deceased was the last surviving partner, when his right in such property vests in his legal representative. The exact purpose and effect of these provisions are not readily discernible.
3. Lang v. Waring, 25 Ala. 625; Carter v. Flexner, 92 Ky. 400, 17 S. W. 851; Darrow v. Calkins, 154 N. Y. 503, 48 L. R. A. 299, 61 Am. St. Rep. 637, 49 N. E. 61; Merritt v. Dickey, 38 Mich. 41; Dyer v. Clark, 5 Mete. (Mass.) 532; Han-way v. Robertshaw, 49 Miss. 758; Stroud v. Stroud, 61 N. C. 525; Matthews v. Hunter, 67 Mo. 293.
[Sec. 196 pelled to convey their legal title to the purchaser.4-5 The death of a partner in whom no legal title is vested can obviously have no effect whatsoever upon the legal title.
The person or persons in whom the legal title is vested in trust for the partnership may dispose of it, but, as in the case of any conveyance by a trustee, the transferee takes it subject to a like trust unless he is a purchaser for value and without notice.6 In Pennsylvania, a purchaser is, it seems, not charged with notice of the trust unless it appears of record,7 but elsewhere no such requirement is asserted, and whether the purchaser is chargeable with notice of the partnership character of the property is determined with reference to the same class of considerations as ordinarily control in connection with the question of constructive notice. That the property is utilized for partnership purposes would ordinarily be sufficient to charge a purchaser with notice of its partnership character.
- Rights as to surplus. After the partnership debts have been paid, and all equities as between the partners have been adjusted, the partnership realty which remains belongs in equity to the partners, in the
4-5. Dupuy v. Leavenworth, 17 Cal. 262; Davis v. Smith, 82 Ala. 198, 2 So. 897; Bank of Southwestern Georgia v. McGarrah, 120 Ga. 944, 48 S. E. 393; Galbraith v. Gedge, 16 B. Mon. (Ky.) 631; Matthews v. Hunter, 67 Mo. 293; Troll v. St. Louis, 257 Mo. 626, 168 S. W. 167; Delmonico v. Guil-laume, 2 Sandf. Ch. (N. Y.) 366; Walling v. Burgess, 122 Ind. 299, 7 L. R. A. 481, 22 N. E. 419, 23 N. E. 1076; Shanks v. Klein, 104 U. S. 18, 26 L. Ed. 635; Schlichter Jute Cordage Co. v. Mulqueen, 142 Fed. 583.
6 Dupuy v. Leavenworth, 17 Cal. 262; Hartnett v. Stillwell, 121 Ga. 386, 104 Am. St. Rep. 151, 49 S. E. 276; Hewitt v. Rankin, 41 Iowa, 35; Whitney v. Cotton, 53 Miss. 689; McKee v. Covalt, 71 Kan. 772, 81 Pac. 475; Bergeron v. Richardott, 55 Wis. 129, 12 N. W. 384; Tillinghast v. Champlin, 4 R. I. 173; Arnold v. Wainwright, 6 Minn. 358; Betts v. Letcher, 1 S. Dak. 182, 46 N. W. 193.
7. Warriner v. Mitchell, 128 Pa. 153, 18 Atl. 337; Stover v. Stover, 180 Pa. 425, 57 Am. St. Rep. 654, 36 Atl. 921; Cundey v.
If any of the partners has died, his share of the land except perhaps in a few jurisdictions,10 will be vested in his heirs,11 or, it may be, in his devisees.
One to whom a partner has undertaken to convey or mortgage his interest in the firm land stands in the same position as regards the beneficial interest therein as did the partner himself. The transfer operates merely on such partner's interest in the surplus remaining-after the payment of the firm debts and the ad" justment of the equities between the partners.12