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 .
Apart from statute, the legal title to land cannot be vested in a partnership as such, it not being recognized as a person at law, and consequently, though the property is intended to belong to the firm, the legal title must be vested in some individual or individuals; and so far as the rights of the members of the firm, as such, or of the firm creditors, are concerned, it is immaterial whether the legal title is in one or more of the partners, or in a stranger.69 In whomsoever the legal title may be, such person or persons are regarded in equity as holding it in trust for firm purposes, that is, for the payment of the firm debts and the adjustment of equities between the partners.70
66. Ballinger, Commun. Prop. Sec.Sec. 234, 240; Brown v. Pridgen, 56 Tex. 124; Hill's Estate, 6 Wash. 285.
67. See 1 Stimson's Am. St. Law, Sec. 3403; Rev. St. Ariz. 1887, Sec. 1467; Sayles' Civ. St. Tex. art. 2165; Hill's Gen. St. Wash. Sec. 1481.
68. Ballinger, Commun. Prop. Sec.Sec. 10, 253.
69. Parsons, Partnership, Sec. 265; Mechem, Partnership, Sec. 84; Shanks v. Klein, 104 U. S. 18, 26 L. Ed. 635; Nicoll v. Ogden, 29 111. 323, 81 Am. Dec. 311; Smith v. Smith, 179 Iowa, 1365, 160 N. W. 756; Jarvis v. Brooks, 27 N. H. 37, 59 Am. Dec. 359; Fairchild v. Fair-child, 64 N. Y. 477; Page v.
Thomas, 43 Ohio St. 38, 54 Am. Rep. 788; Diggs' Adm'r v. Brown, 78 Va. 292.
70. Riddle v. Whitehill, 135 U. S. 621, 34 L. Ed. 283; Roberts v. Eldred, 73 Cal. 394, 15 Pac. 16; People v. Sholem, 244 111. 502, 91 N. E. 704; Barkley v. Tapp, 87 Ind. 25; Paige v. Paige, 71 Iowa, 318, 60 Am. Rep. 799; McKee v. Covalt, 71 Kan. 772, 81 Pac. 475; Pepper v. Thomas, 85 Ky. 539, 4 S. W. 297; Shaw's Appeal, 81 Me. 207, 16 Atl. 662; Dyer v. Clark, 5 Mete. (Mass.) 562, 39 Am. Dec. 697; Whitney v. Cotten, 53 Miss. 689; Young v. Thrasher, 115 Mo. 222, 21 S. W. 1104; Jarvis v. Brooks, 27 N. H. 37, 59 Am.
- Conveyance to firm. Since, as above stated, the legal title to land cannot be vested in a partnership as such, the question has frequently arisen as to the effect of a conveyance which is in terms to a partnership. The members of the partnership are susceptible of identification, and it would seem that, on principle, such a conveyance might be regarded as intended to take effect as a conveyance of the legal estate to such members jointly, in accordance with the maxim "id cerium est quod certum reddi potest" and this is the view adopted in England and a few states.71 In other states the courts have regarded such a conveyance as transferring the legal title to such member or members of the partnership as may be represented in the firm name, a conveyance, for instance, to A. B. & Co. vesting the legal title in those partners named A and B respectively.72 A corollary of this latter view is that if the name of no one of the partners appears in the firm name, the legal title remains in the grantor, in trust for partnership purposes.73 In one state the view has apparently been adopted that a conveyance to a partnership as such cannot affect the legal title, even though the name of a partner does appear in the fact that land not so purchased was used for partnership purposes is not sufficient to impress it with the partnership character.78
Dec. 359; Fairchild v. Fairchild, 64 N. Y. 471; Adams v. Church, 42 Ore. 270, 59 L. R. A. 782, 95 Am. St. Rep. 740, 70 Pac. 1037; Hayes v. Treat, 178 Pa. 310, 135 Atl. 987; Betts v. Lecher, 1 S. Dak. 182; Murrell v. Mandelbaum, 85 Tex. 22, 34 Am. St. Rep. 777; Dewey v. Dewey, 35 Vt. 555; Hardy v. Norfolk Mfg. Co., 80 Va. 404.
71. Wray v. Wray (1905) 2 Ch. 349; Brunson v. Morgan, 76 Ala. 593; Blanchard v. Floyd, 93 Ala. 53, 9 So. 418; Bank of Southwestern Georgia v. McGarrah, 120 Ga. 944, 48 S. E. 393; Beaman v. Whitney, 20 Me. 413; Byam v.
Bickford, 140 Mass. 31, 2 N. E. 687; The Golden Rod, 197 Fed. 837.
72. Percifull v. Platt, 36 Ark. 456; Cole v. Mettee, 65 Ark. 503, 67 Am. St. Rep. 945, 47 S. W. 407; Winter v. Stock, 29 Cal. 408, 89 Am. Dec. 57; Bernstein v. Hobel-man, 70 Md. 29, 16 Atl. 374; Gille v. Hunt, 35 Minn. 357, 29 N. W. 2; Arthur v. Weston, 22 Mo. 378; Wright v. Brooks, 47 Mont. 99, 130 Pac. 968; Holmes v. Jarrett, 7 Heisk. (Tenn.) 506.
73. Riffel v. Ozark Land & Lumber Co., 81 Mo. App. 177; Spauld-ing Mfg. Co. v. Godbold, 92 Ark. 63, 29 L. R. A. (N. S.) 282, 135 firm name.74 In all jurisdictions, presumably, such a conveyance is effective for the purpose of creating equitable rights in favor of the members of the firm and the firm creditors.
- What land is partnership land. The question whether particular land is to be regarded as partnership land, in which a trust exists for partnership purposes is, like the same question in connection with personalty, ordinarily regarded as one of the intention of the firm members, to be determined by the manner and purpose of its acquisition, and the mode in which it is used.75 That the land is both paid for with partnership funds and used for partnership purposes is sufficient to show that it is intended to be partnership property, unless an agreement to the contrary appears.76 That the land is paid for with partnership funds is not conclusive of such an intention, since the partners may desire to withdraw that amount from the business and invest it in land.77 And the mere
Am St. Rep. 168, 19 Ann. Cas. 947, 121 S. W. 106a.
74. Silverman v. Kristufek, 162 111. 222, 44 N. E. 430.
75. Ames v. Ames, 37 Fed. 30; Jenkins v. Jenkins, 81 Ark. 68, 98 S. W. 685; Robinson Bank v. Miller, 153 111. 244, 27 L. R. A. 449, 46 Am. St. Rep. 883, and note; Blakeslee v. Blakeslee, 265 111. 48, 106 N. E. 470; Colener v. Greig, 137 Pa. 606, 21 Am. St. Rep. 899; Ihmsen v. Huston, 247 Pa. 402, 93 Atl. 601; City of Providence v. Bullock, 14 R. I. 353; Murrell v. Mandelbaum, 85 Tex. 22, 34 Am. St. Rep. 777.
76. Goldthwaite v. Janney, 102 Ala. 431, 48 Am. St. Rep. 57, and note; Bank of Southwestern Georgia v. McGarrah, 120 Ga. 944,