Gray v. Palmer.

claims against the estate to be paid out of it in due course of administration. Conceding the allegations of the complaints to be true, the surviving partners were entitled to the possession and management of the partnership effects; and the only interest that the heirs could have in the partnership assets, was the net interest of their ancestor, after the partnership debts were all paid. It was necessary to file the bills, and make the administrator, the widow, and the infants, parties, for the reason that the real estate stood upon the record in the name of the deceased. In the theory of our system the estate of the ancestor, personal and real, vests in the heir, subject to the possession and lien of the administrator for the payment of debts and the expenses of administration. As the real estate was held in the sole name of the deceased, and the administrator had possession of the personal property, the whole belonged, prima facie, to the estate. To rebut this prima facie ownership and right to possession, and legally vest the property in the partnership, it was necessary to bring these suits. The primary object was to obtain the control of the partnership property, and the sale of so much of it as would be required to pay the partnership debts and for a partition of the remainder of the real estate, if any. These complex objects could only be accomplished by proceedings in the District Court. The Probate Court had no judicial means to do this.

The second objection made by the appellants is, that the Court had no jurisdiction of the person of Franklina C. Gray. In the case of Gray v. Eaton and others, the affidavit of publication was made by "L. Humphreys, clerk in the office of the Placer Times and Transcript," when the statute requires the affidavit to be made by the principal clerk. But this objection is not well taken, as it is clear from the affidavit that there was but one clerk in the office. When there is but one clerk his affidavit must be sufficient, and it is unnecessary for him to improperly describe himself as principal clerk.

In the case of Eaton v. Palmer and others, the affidavit of Eaton states that Mrs. Gray and child were residents of the State of New York, but does not state in what portion of the State they resided, nor that the affiant was not informed of, or did not know the fact. In the amended complaint of Wm. H. Gray, in the case of Gray v. Eaton and others, the fact is stated that Mrs. Gray and child resided in Brooklyn, in the State of New York. The plaintiff Eaton then had notice of the place of residence of the two defendants, and should have so stated in his affidavit. The result of his failure to state this fact, was that the Court did not direct a copy of the complaint and summons to be deposited in the post-office. This defect was not cured by the appearance of the mother in her own behalf. The twenty-ninth section of the Practice Act requires the service of the summons when the

Gray v. Palmer.

suit is against a minor under the age of fourteen, to be made by delivering a certified copy of the summons and complaint to the infant personally, and also to his father, mother, or guardian. When the infant is over the age of fourteen, the service is only to be made upon him, as he may choose his own guardian. As the statute requires personal service of the summons upon the infant, although under the age of fourteen, it is clear that a copy should have been put into the post-office directed to the infant in the same manner as if over the age of fourteen. The Court had no right to appoint a guardian ad litem until the infant was properly brought into Court.

We are compelled to give the twenty-ninth section of the Code this construction, although there may seem to be no good reason for requiring personal service upon a minor under the age of fourteen. The language of the second subdivision is too clear to admit of any doubts; and it is not our right to make, but only to construe, the statute. (Sed. on Construction, pp. 293, 395, 306, 309, 311, 379.) In the New York Code, the service was only required to be made upon the guardian when the minor was under the age of fourteen. (§ 113, First Rep. of Com., 134.) In the act of April 22, 1850, (Statutes of 1850, 430,) the same provision as that contained in the twenty-ninth section of our Code is found, with a slight difference in the grammatical structure of the sentence. So, in the Practice Act of 1850, personal service was required upon a person of unsound mind, as also upon his guardian; while in our present Code, the personal service upon the lunatic is dispensed with. These facts show that the provsion requiring personal service upon the minor under the age of fourteen, and also upon his guardian, is not the result of a misprint or a clerical mistake, but the deliberate will of the Legislature. As such, it is our duty to carry it out.

The third objection made by the appellants is, that the complaints do not allege the existence of such a partnership as to entitle the plaintiffs to file a bill as partners; and it is questioned whether there can exist such a relation as a universal partnership. The question in this case regards the rights of partners as between themselves. A partnership, as between the partners themselves, may be defined to be a contract of two or more persons to unite their property, labor, and skill, or some of them, in the prosecution of some joint and lawful business, and to share the profits in certain proportions.

In most partnership agreements there is a stipulation to share the profits and bear the losses, in certain proportions. But if parties are so disposed, they are competent to agree that all the partners shall participate in the profits, while a portion shall bear all the losses of the original capital. If, for example, A, B, and C, should agree that A and B should put in the sum of $10,000 each, and C, the sum of $20,000; and that all the partners should

Gray v. Palmer.

give their personal attention to the partnership business, and share the profits in equal proportions, but in case of any loss of any portion of the original capital, that loss should alone fall on A and B, there would seem to be no doubt of this being a partnership.

There can be no doubt, at this day, that a partnership may exist in the purchase and sale of lands. (Story on Partnership, §83; Collyer, § 51, note.) But such a partnership can only exist where the contract is reduced to writing. (Story, § 83.) And it is not necessary that the partners should be jointly concerned in the original purchase, where the interests of the partners are afterwards mingled. But the partners must, by the contract, be jointly concerned in the future sale. (3 Kent, pp. 25, 26.

In reference to this subject, Mr. Justice Story remarks: "Nor is there in reality, as between the parties themselves, any differcnce whether the partnership property, held for the purposes of trade or business, consists of personal or moveable property, or real or immoveable property, or of both, so far as their ultimate rights and interests are concerned."

This language is very clear and distinct. As between the partners, the partnership property may consist either of real or personal estate, or of both, and in each case their ultimate rights are the same. And it does not matter in whose name the real estate may be held, he is only a trustee for the partnership, and the real estate, for the purpose of disposal and distribution, is to be treated as personal estate. An exception may be stated, as where there are no partnership debts to pay, in which case the real estate should be partitioned, if practicable. (§§ 92, 93.) And this being the true character of partnership real estate, the surviving partner has an equitable lien upon it for his indemnity against the debts of the firm, and for the balance that may be due to him from the firm. (Collyer on Part., § 135, and note.) For the same reason, the widow and heirs have only an interest in the net partnership property, after all the partnership debts are discharged.

But it is insisted that there can not be a dormant partnership in the purchase and sale of real estate. This objection would not seem to be well taken, as between the partners themselves there can be no difference, whether the business is commercial or dealing in real estate. As between the partners and third persons, the law in regard to dormant partners will not apply; (Pitts v. Waugh, 4 Mass. R., 424; 3 Kent, 31, note a ;) and we can see no reason why parties should not be competent to form a universal partnership. There is nothing impracticable in it, or against morality or public policy. Of course such a universal partnership would not be held to exist, unless the intention was clearly expressed.

It is also insisted by the learned counsel for the appellants, under his third point, that though it be conceded that Gray has

Gray v. Palmer.

stated a case of partnership in his complaint, Eaton has not. The instrument claimed by Eaton to constitute articles of copartnership is set out in his complaint; and must constitute the sole evidence of the relation existing between him and the deceased. (Lee v. Evans, 8 Cal. R., 424.)

The effect of this objection depends upon the true construction of the instrument. The instrument is in an unusual form for partnership articles, and is only executed by the deceased. It purports, in the first part of it, to sell to Eaton one-fourth of all the real and personal property then owned by the deceased, or that might be owned by him within the next two years, or within the time the connection should continue, should it continue beyond the time specified. It was evidently an executory and not an executed contract. Eaton, on his part, was bound to remain with the deceased for two years; at the expiration of which period a division of all property, real and personal, was to be made, unless the parties should wish to continue longer. Among other conditions to be performed were these: "2. That Eaton should unite all the funds he may hereafter become possessed of, in the joint fund, for the purpose of accumulation. 3. All outstanding debts shall be paid out of the joint fund held against the party of the first part." Taking the different portions of the agreement together, and we must conclude that the relation created by it was a partnership. 1. The contract was executory. 2. Gray put in all his property. 3. Eaton was to put all his future property into the joint fund, and also his time. 4. These were to be all put into the concern "for the purpose of accumulation." 5. The debts were to be paid out of the "joint fund." 6. A division of all the property was to be made-the one-fourth to Eaton, and the other three-fourths to the deceased. 7. The property to be divided consisted of that put in, with its accumulations.

The fourth objection urged by the appellants is that the decree was against the weight of evidence. This objection only applies to the case of Gray v. Eaton and others.

It is alleged by William H. Gray that written partnership articles were executed by the deceased and himself, but that the same were destroyed by the fire in June, 1851, in the city of San Francisco. It is certain, from the proof, that the two brothers were in partnership in a mercantile house in San Francisco. But this fact renders it the more probable that the partnership was confined to that house; and that the recollection of the witnesses had relation to that concern, and not to the alleged universal partnership. There is only one witness to prove the contents of the partnership articles, and his recollection does not seem to have been very distinct. The evidence to establish such a partnership, after the death of one of the partners, should be clear and full, and not subject to doubt. The circumstances, all

Whipley v. Mills.

taken together, leave the greatest room for doubt. We have examined the testimony carefully, and we can not resist the impression that the evidence did not warrant the decree. It would be a greater labor than we can perform, consistently with the other business of the Court, to review the evidence in full in this opinion.

The other points made by the appellants are not important. Our conclusion is, that the decree in the case of Eaton v. Palmer and others, so far as it affects the rights of the infant Franklina C. Gray, should be reversed, and that the decree in the case of Gray v. Eaton and others, should be reversed as to both the appellants, and cause remanded for further proceedings.

WHIPLEY v. MILLS.

An appeal is made by filing and serving the notice of appeal. Both requisites must exist, to complete the appeal.

A failure to notify the adverse party is fatal.

APPEAL from the District Court of the Sixth Judicial District, County of Sacramento.

Smith, Edwards & Baldwin, for Appellant.

Winans & Hyer, and Heydenfeldt, for Respondent.

BURNETT, J., delivered the opinion of the Court-FIELD, J., concurring.

The judgment in this case was rendered on the 29th March, 1852. Notice of appeal filed in the Clerk's office April 15th, 1852, and transcript on appeal filed in this Court June 17th, 1857. The record contains no evidence that a copy of the notice was served upon the appellee, as required by the 337th section of the Code.

The appeal is made by filing and serving the notice. Both requisites must exist to complete the appeal. If either could be omitted, it would be the filing of the notice. A failure to notify the other party is more material than a failure to file in the Clerk's office. No copy of the notice having been served upon the appellee, he had no opportunity to move to dismiss the appeal. The result was that the transcript is made out and sent up more than five years after filing the notice of appeal. (Franklin v. Reiner, 8 Cal. R., 340.)

The appeal must be dismissed.