1833. SMITH v. Under these circumstances, I think that the real estate, thus purchased and held jointly, may be considered as partnership property and the proceeds liable to be applied to partnership purposes. It was so considered by Mc. Jimsey JACKSON. in making the assignment to the complainants in trust for the purpose of completing the composition previously agreed upon with the creditors. As these creditors are willing to come under the assignment and set up no claims upon the funds in this court adverse to it, there can be no difficulty in making a decree for distribution of the whole of the partnership property among the creditors through the medium of the complainants, as assignees. The rule is well established that the joint property of the partnership must first be applied to the payment of the joint debts. Hence, the administrator of the deceased partner is not entitled to any part of the funds in court for the benefit of his separate creditors or next of kin. Even though one half or more of these funds were to be regarded as belonging to the individual estate of the deceased partner Jackson, the same being proceeds of real estate, his personal representative could not be permitted to take, since the right would be in the heirs at law. In no point of view, therefore, has the defendant Miller, as administrator, any claim upon the fund in court. The next point is, with regard to the claim of dower on the part of the defendant Ann P. Jackson, the widow of the deceased partner. Although the lands were partnership property and the transactions relative to their purchase were of a commercial nature and the proceeds (under the circumstances) are liable to be applied to the satisfaction of the joint debts, yet, in a strict sense, they were real estate and subject to its incidents. The partners were respectively seized of a legal estate of inheritance in the lands as tenants in common, notwithstanding it was to be treated as partnership property; and the right to dower attached as an incident to the legal title and seizin. On this account it became necessary for Mrs. Jackson to unite with her husband in the mortgages. She had still a right of dower in the equity of redemption. This right was not entirely lost by the foreclosure and sale. It attached in equity to the surplus, after 1833. satisfaction of the mortgage debt. Instead of legal, it then became equitable dower; and which no act, by the husband, could impair, without her concurrence: Titus v. Neilson, 5. JACKSON. J. C. R. 452. SMITH v. In reference to the case of Smith v. Smith, 5. Ves. 189., Mr. Park, in his treatise on Dower, 106. observes, that "if "lands of inheritance are purchased with partnership pro"perty and conveyed to one partner only, prima facie he is "a trustee for the partnership, and, upon a dissolution, the "lands would be distributable among the partners as co"partnership property. But as the partner in whose name "the conveyance was taken has the legal estate, coupled "with the beneficial ownership in his own share, and as part"ners are tenants in common in equity of real estate purcha"sed for the purposes of trade, it is apprehended that his "wife is entitled to dower of this share." I am disposed to adopt this as the correct conclusion. Upon applying it to the present case, Mrs. Jackson is entitled to dower in the share of the estate, of which the legal title was coupled with a beneficial ownership in her husband, notwithstanding it was partnership property. It can only extend, however, to a moiety. The legal title was not in him beyond this, although his interest in the partnership was a two-thirds. Her dower may be estimated upon the principle of a life annuity; and a gross sum can be paid over or one-third of a moiety of the fund be invested for her use—at her election. My conclusion on the last point may not seem to be reconcileable with the decision in the Ohio case of Green v. Green, where the court proceeded mainly upon the effect of the special agreement in the articles of co-partnership and as to its being sufficient to prevent any right of dower from attaching upon the land. If that decision can be supported upon principle, I apprehend it can only be done through the particular circumstances of the case. It is sufficient to say, the facts in the present suit are different. 1833. DENSTON DENSTON and another, assignees of DICKEY v. MORRIS and others, assignees of SANDS. V. MORRIS. It is a well settled rule of equity that a grantee, to whom possession has been delivered un- When surviving assignees în bankruptcy are looked upon as trustees of a fund in their The statute of limitations or a staleness of demand should be set up by plea or answer and cannot be taken advantage of by demurrer. Assignees of a bankrupt sold a lot of ground for $4,300. to 1. S. with a promise of covenants in fee and a warranty; the latter took possession and expended money in building; the assignees then refused to give a deed with full covenants or warranty and fixed him down to take a deed with a covenant against their own acts only and took a bond and mortgage for $4,000. payable in five years, upon the understanding that if their title failed they would return the purchase money and, in the meantime, would not pass the mortgage away; the assignees, without the knowledge of I. S., were notified of an intention to con test their title; I. 8. sold to R. D. who paid off the mortgage (the assignees having, against their promise, parted with it); one J. J. brought ejectment upon a paramount title and recovered against R. D. who compromised; and R. D. failed and assigned his property to assignees who filed a bill against the assignees in bankruptcy for repayment of the amount which R. D. had sacrificed upon the compromise. The defendants put in general demurrers: Held, that the assignees in bankruptcy not only took the mortgage in trust, but were to be considered as trustees of the money arising from it and that R. D. and those representing him were entitled to the benefit of it; and, consequently, that the demurrers must be overruled. This case came before the court upon demurrers taken by April 10th. the defendants Robert Morris, junior, John Delafield and 1833. Charles Rhind to the whole of the complainants bill. Vendor and The bill alleged, in substance, that Robert Morris junior, Purchaser. and John Mowatt, junior, assignees of the estate of Comfort Parties. Sands, a bankrupt, falsely stated to one John Sandford that Statute of Limitations. they, as such assignees, were seized in fee of and were authorized to sell and convey a lot of ground, known as Number 73 Greenwich street; and, in order to induce Sandford 1833. DENSTON v. MORRIS. to purchase, represented their title as indisputable and promised, if he would make the purchase, to give him a warrantee deed and defend the lot against the claims of all persons who should lawfully claim the same. That about the first day of April one thousand eight hundred and twelve, Sandford agreed to purchase the lot from them for four thousand three hundred dollars, which was the full value, upon the conditions above mentioned; and they put him in possession for the purpose of his making improvements-leaving the deed to be executed at a future day-and that he forthwith commenced building upon the lot. After Sandford had expended considerable monies upon the lot, and about the fifteenth day of July one thousand eight hundred and twelve, he applied to these assignees for a warrantee deed; and which they promised to give him. But, shortly afterwards, they tendered to him a deed of conveyance of the lot containing only covenants against their own acts as assignees and for such further assurance as they might, as such assignees, rightfully make whenever requested. That Sandford objected to such a deed and required them to execute a warrantee deed as promised; which they refused: assigning as an excuse, the advice of their counsel not to execute such an instrument—but again assuring him of their title, as assignees, being undoubted. And in order to induce him to accept the deed without covenants, they further proposed and agreed to require a payment of only three hundred dollars in money and to take his bond and a mortgage of the lot for four thousand dollars (being the balance of the purchase money) payable five years after date; and that they would hold the bond and mortgage in their own hands, and not assign the same to any person or claim payment of the principal, until the title of the assignees was established or made perfectly satisfactory to Sandford or his assigns. That they refused to execute any other deed; and threatened if he did not accept of the one which was proffered, to sell the lot to some other person and thereby deprive him of the monies which he had expended in building; and Sandford, relying upon their representations and assurances, finally agreed to accept the deed, and the same was accordingly executed and delivered to him. It was dated the twen ty-first day of July one thousand eight hundred and twelve; and thereby the assignees conveyed to him, in fee, all the estate, right, title and interest which Comfort Sands held at the time he became a bankrupt, and which they, as assignees, had or could convey of, in or to the said lot of ground. Simultaneous (as the bill showed) with the execution and delivery of the deed, Sandford paid to these assignees, Morris and Mowatt, the sum of three hundred dollars and gave his bond and a mortgage of the property for four thousand dollars payable on the twenty second day of July, one thousand eight hundred and seventeen with interest. That this was done upon the understanding before mentioned and upon the further stipulation and agreement of Mowatt, one of the assignees, who delivered the deed and accepted the bond and mortgage, that if the title of the assignees should fail or prove defective from any cause, the assignees would return the purchase money paid and secured by the bond and mortgage. That in violation of the promise not to part with the bond and mortgage, the assignees had, on the fifth day of March one thousand eight hundred and fifteen assigned the same to a Mrs. Grayson, without the knowledge or consent of Sandford and in bad faith towards both him and her because they then knew or had been informed of their having no title or that it was intended to contest the title as conveyed by them to Sandford. That Sandford remained ignorant of any such defect and intention and went on to finish the buildings erected by him on the lot, consisting of a brick dwelling house and stable; and afterwards sold the same to Robert Dickey for thirteen thousand dollars and conveyed it to him in fee by deed bearing date the twenty-sixth day of February one thousand eight hundred and sixteen. The purchaser, Dickey, discharged the bond and mortgage held by Mrs. Grayson, she having required the same to be satisfied. The bill further alleged that afterwards and on or about the first day of May one thousand eight hundred and sixteen one John Jackson commenced an action of ejectment against Mr. Dickey in the Supreme Court for the recovery of the land, which action was tried at a circuit court; and in January term one thousand eight hundred and nineteen judgment was rendered thereon in favor of the plaintiff Jackson, his 1833. DENSTON D. MORRIS. |