Appeal from disallowance by commissioners of claim. against estate. The claimant brings error. Affirmed.

Webster, Davis & Millard for appellant, cited as similar, Byrnes v. Rich 5 Gray 518; Smith v. Strong 14 Pick. 128.

Morse, Wilson & Trowbridge for appellee. A covenant against incumbrances is a covenant in presenti, and is broken, if at all, at the time it is made, and is incapable of transmission by the covenantee to his grantee by a deed of the premises merely; when broken it becomes a chose in action in the covenantee, and is not transferred by the covenantee's deed: Sutherland on Damages, 311 n. 1; 2 Washb. R. P. (2d ed.) 708; Rawle on Cov. 336, 346, 373, 374; Davidson v. Cox 10 Neb. 150; Clark v. Swift 3 Met. 391; Whitney v. Dinsmore 6 Cush. 124; Thayer v. Clemence 22 Pick. 490; Smith v. Lloyd 29 Mich. 382; Matteson v. Vaughn 38 Mich. 375; Post v. Campau 42 Mich. 90; Johnson v. Hollensworth 48 Mich. 140.

COOLEY, C. J. The plaintiff presented to the commissioners appointed to audit and allow claims against the estate of Nathaniel Davenport, a claim arising on a breach of a covenant against encumbrances contained in a deed from the decedent to Elizabeth, the wife of the claimant, bearing date July 29, 1872, and conveying certain lands in the county of Ionia. The commissioners disallowed his claim, and he appealed to the circuit court where it was again disallowed.

The plaintiff's case was that the deed to the wife was made on an oral understanding with her that she should hold the land for him and deed to him on request—he having paid the consideration; that afterwards, on August 28, 1878, she did convey to him in recognition of this understanding; that when the deed to her was given the land was encumbered by a mortgage given by the decedent, and that this mortgage was paid by the claimant in 1879. This was all the showing that was made of the plaintiff's right to recover upon the covenant. Whether the deed to the claimant contained covenants does not appear.

It is obvious from this statement that if the claimant can enforce any claim upon the covenant he can only do so by virtue of the transfer to him of the claim by his wife's deed. The oral understanding was a mere nullity, except as the wife saw fit to give effect to it afterwards by the execution of a deed. The mortgage which was upon the land fell due February 11, 1873. There had therefore not only been a technical breach of the covenant but the grantee in the deed of the decedent was in position where, by paying off the incumbrance, she might recover the whole amount as damages by breach of her covenant. Her right of action was complete; and it may be added that several payments of interest had been made on the mortgage before she conveyed to her husband. There is nothing in the record to indicate any intent on her part to transfer this personal claim, which her husband could only claim as assignee. We are referred to Post v. Campau 42 Mich. 90 as authority for the position that the deed of the wife carried the covenant against encumbrances; but in that case the covenant looked to the future, and was intended to give protection to the title against demands coming against it subsequently. The actual decision made in that case has therefore no bearing upon this. The doctrine that a covenant against present encumbrances cannot run with the land was discussed with unfavorable comments by one member of the Court; but the present case is scarcely within any of the reasons then assigned for a change of the rule. The record before us is remarkably meager in its statement of datės; but apparently the mortgage must have been overdue for six years when the decedent died. It needs no argument to show that the covenantee cannot thus indefinitely prolong the liability of the covenantor by leaving the mortgage unpaid, and that if she could, the mere transfer of the title without covenants and without mention of the claim would not evidence an intent to transfer her right of action.

The judgment must be affirmed.

The other Justices concurred.

CHARLES REYNOLDS V. BENJAMIN S. PATRICK ET AL.

Partnership settlement a question of fact.

In assumpsit against former partners for the amount found due plaintiff on a partnership settlement, and which defendants had promised to pay him, the facts of settlement and of the joint promise to pay were for the jury.

Error to Ionia. (V. H. Smith, J.) Jan. 31-Feb. 1-Feb. 6.

ASSUMPSIT. Defendant Patrick brings error.

Affirmed.

Mitchell, Bell & McGarry for appellant. In Vermont a partner can recover only a balance found due to him upon dissolution after an adjustment of all the partnership dealings: Spear v. Newell 13 Vt. 288; Warren v. Wheeler 21 Vt. 323; Sawyer v. Proctor 2 Vt. 580; so in Illinois; Davenport v. Gear 2 Scam. 495; Chadsey v. Harrison 11 Ill. 151; in New York, South Carolina and Illinois assumpsit will not lie between partners for a final balance, except upon an express promise to pay it: Casey v. Brush 2 Cai. 293; Ilalsted v. Schmelzel 17 Johns. 80; Westerlo v. Evert son 1 Wend. 532; Townsend v. Goewey 19 Wend. 424; Frink v. Ryan 3 Scam. 325; Course v. Prince 1 Rep. Const. Ct. 416; in Massachusetts and Pennsylvania, where there has been an actual settlement and ascertainment of the final balance, in consequence of their peculiar condition, having no courts of equity, a suit may be maintained upon such balance without a promise: Ozeas v. Johnson 1 Binn. 191; Williams v. Henshaw 11 Pick 79.

Moses Bartow and Morse, Wilson & Trowbridge for appellee. Where three people are in partnership and one wishes to withdraw, and they meet, settle the partnership business, strike a balance in favor of the retiring partner, and the remaining partners jointly promise to pay him the amount, such a promise can be enforced in assumpsit: 5

Wait's A. & D. 151; Pars. on Partn. (2d. ed.) 278, 282; Frink v. Ryan 3 Scam. 322; Davis v. Merrill 51 Mich. 480; also Gibson v. Moore 6 N. H. 547; Sprout v. Crowley 30 Wis. 356; Gulick v. Gulick 14 N. J. Law 578; Gauger v. Pautz 45 Wis. 452; Coffee v. Brian 3 Bing. 54; Riarl v. Wilhelm 3 Gill 356; Collamer v. Foster 26 Vt. 754 ; Neale v. Turton 4 Bing. 149; Casey v. Brush 2 Cai. 293; Shennefield v. Dutton 85 Ills. 503; Hanks v. Baber 53 Ill. 292; Clark v. Dibble 16 Wend. 601; Wilby v. Phinney 15 Mass. 116.

CHAMPLIN, J. On the trial of this cause in the court below the plaintiff gave testimony tending to prove that on the 6th day of April, A. D. 1882, the defendants were, and for some time prior thereto had been, engaged together in the business of buying and selling live-stock. On or about that date the plaintiff entered into copartnership with said defendants for the purpose of carrying on together the same business; the three continued in said business for about three weeks until about the 29th of April. During this time quite an amount of stock of various kinds had been purchased.

Some of the stock had been resold and the remaining portion was still on hand, when, at the time last mentioned, the copartnership between the three was dissolved by the withdrawal of the plaintiff from the same. The two defendants continued to carry on the business. About this time the said plaintiff and said defendants met together and settled the partnership business in which they had been engaged, in so far as to figure up and determine the amount that was due to the plaintiff out of the business.

The live-stock that was on hand at the time of dissolution, which it seems had been paid for by the plaintiff, was taken by him, he being charged with the increase in value of the same, and a balance was then struck, which showed that there was due to the plaintiff, from the defendants, out of the business, the sum of $526.

This amount was agreed upon by the parties, and the

defendants then and there promised jointly to pay to the plaintiff the amount so found due to him by the settlement, and upon the subsequent refusal of the defendants to carry out such agreement this action was brought, resulting in a verdict and judgment for the plaintiff, from which the defendant Benjamin S. Patrick appeals to this Court.

On the other hand, the defendant Patrick claimed, and gave testimony tending to prove, that no settlement was consummated and no joint promise was made to pay the amount which plaintiff claimed. The question was one purely of fact, and was submitted to the jury and they found a verdict in plaintiff's favor.

There is no error in the record and the judgment is affirmed.

The other Justices concurred.

IN THE MATTER OF THE ESTATE OF AUSTIN H. ODELL. APPEAL OF ELEANOR K. O. YOUNG.

Claim against estate by grass-widow.

1. A woman who by mutual agreement with the man with whom she was living had parted from and released all claims upon him and left the State and married another man, cannot maintain a claim for widow's allowances against the estate of her original companion, as against a woman who in good faith lawfully married him, without, at least, showing very clearly that she, the claimant, had been his lawful wife.

2. A proceeding to obtain widow's allowances is not binding upon a woman who had in good faith married decedent after the claimant had left him and was living with him as his wife at the time of his death, but was not made a party to the proceeding brought by her predecessor.

Error to Kalamazoo. (Mills, J.) Feb. 1.-Feb. 6.

Appeal from probate decree denying a petition for a widow's allowance from the estate. The estate brings error. Reversed.