"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. (Story on Partnership, §§ 83, 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 Partnership, § 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." For a general discussion of the subject, see Freeman on Cotenancy and Partition, § 443. In Tenney v. Simpson, 37 Kan. 353, it was said that upon dissolution of the partnership and a full payment of its debts, the partners became tenants in common of its real estate, and the court will decree a partition. In this case, while these parties are not technically cotenants in a legal title, in equity, they are such to all intents and purposes. While the legal title is in Angell, he holds it in trust for the uses of the firm, its creditors, and his copartner, and equity will compel such conveyance, as the necessities of the business, and the rights of his copartner require. We have two statutes that confer the power upon courts of justice, to compel persons having dower interests, to be satisfied with a provision in lieu thereof, first, 3 Comp. Laws, § 8953, which applies to proceedings instituted by widows, to recover dower in lands which the husband has conveyed without his wife's concurrence, and second, 3 Comp Laws, § 11100, which covers cases of sales under judgments or decrees for partition. It provides: "11100. SEC. 88. In all cases of sales under judgment or decree in partition, where it shall appear that any married woman has an inchoate right of dower in any of the lands divided or sold, or that any person has any vested or contingent future right or estate in such lands, it shall be the duty of the court under whose judgment or decree such sale is made, to ascertain and settle the proportional value of such inchoate, contingent, or vested right or estate, according to the principles of law applicable to annuities and survivorships, and to direct such proportion of the proceeds of the sale to be invested, secured, or paid over in such manner as shall be judged best to secure and protect the rights and interests of the parties." Were this a case where Angell had deeded a half interest in the land to Chase and Chase had filed a bill for partition, it would have been within the terms of the statute, and the court would have authority to sell the property, giving full title, and providing for Mrs. Angell's contingent interest, in one of the methods mentioned in the statute. We are of the opinion that this is none the less a case for partition, because it is based upon an equitable right which the court may compel Angell to turn into a legal title by conveyance. Equity has authority to partition equitable estates as well as legal. See 17 Am. & Eng. Enc. Law (1st Ed.), p. 684. No reason occurs to us for holding that section 11100 should not apply to a case where the bill is filed to partition equitable titles, and to compel conveyance to carry out the decree. The situation is such that a sale subject to dower rights would be likely to materially lessen the price obtainable for the land, for, in the hands of any one except Angell, the outstanding contingent estate would be an obstacle to the sale of lots, which would practically prevent it. This would give to Angell such an advantage at the sal as to enable him to deprive complainant of much of the profit on his venture, which should arise out of the increase in value of the property. It is therefore, in our opinion, a proper case in which to apply this statute. The land was bought and, we assume, is still to be held, subject to purchase-money, and possi bly other mortgages, which underlie the right of dower. Mrs. Angell's right, therefore, is only in the equity of redemption, and it is upon this basis, and its value on July 1,1901, that the compensation must be made. It follows that some method must be devised to provide for (1) the mortgage; (2) the dower interest as it shall be ascertained; (3) the payment of the debts of the copartnership; (4) the balance which shall be found between the accounts of the copartners; (5) a division of the fund or land remaining (if all is not sold) between the copartners. We are not sure that the record contains the testimony required to make the necessary computations, certainly we can obtain little aid from the briefs as to some of them. We think, therefore, that the case should be remanded for the circuit court to consider the proofs and such other testimony as may be offered, pertinent to such questions (provided that it shall deem any further testimony necessary, and permit it to be introduced), and make such other and further decree, not inconsistent with the decree of this court, as shall be just to the parties, unless upon the settlement of a decree in this court counsel can agree upon one, which will end the litigation here with the approval of this court. The complainant is entitled to the costs of both courts against the defendant, except such as apply solely to the partition proceedings, which should be paid from the property. The prayer for enlarged solicitor's fees will be denied. MCALVAY, C. J., and GRANT, BLAIR, and MONTGOMERY, JJ., concurred. ROBSON v. COMMISSIONER OF STATE LAND OFFICE. PUBLIC LANDS-STATE SWAMP LANDS-SELECTION-LIMITATIONSLACHES. The right of Houghton county or its assignee to select swamp lands earned by the county under Act No. 239, Laws of 1863, is not affected by laches or lapse of time. BLAIR, J., and MCALVAY, C. J., dissenting Mandamus by Frank E. Robson to compel William H. Rose, commissioner of the State Land office, to issue a patent for certain swamp lands. Submitted February 15, 1906. (Docket No. 225.) Writ granted April 30, 1907. Robson, George & Fisher, for relator. John E. Bird, Attorney General (Lincoln Avery and Grant Fellows, of counsel), for respondent. * * * * * HOOKER, J. Section 1, Act No. 239, Laws of 1863, provides "that for the purpose of securing the completion" of a "State road," therein named and described, "there shall be and hereby is appropriated to the counties of Houghton 1,280 acres of swamp lands per each mile on said road, to be expended under the authority and by the direction of the board of supervisors, the patents for said lands to be issued to said county on the satisfactory completion of said road, as hereinafter specified." Section 2 prescribes the powers and duties of the board of supervisors in the premises. Section 3 provides for notice to the commissioner of the State land office of the completion and approval by the board of supervisors of any 10 consecutive miles of said road, and for the issue to said. county of patents for 20 sections of said land, the same to be selected by the board. Section 5 provides that the road shall be completed within four years from the passage of the act. Sections 6, 7, and 8 provide for the raising by tax the necessary funds to construct the road. Section 9 provides for the issue of patents on completion of the road, and that the lands so patented shall be under the control of the board of supervisors, who shall fix the minimum price per acre, the manner of sale, and authorize the county clerk to issue patents to any persons who should pay to the county treasurer the amount of money due for any of said lands. Section 4 provides that, after selection by the county, said lands shall be withheld from sale for four years from the passage of the act, and this period was extended six years from the passage of the amendatory act. See Act No. 65, Laws of 1865. On June 23, 1863, the board of supervisors made selection of all the lands and filed the lists with the commissioner. Notice of completion was filed January 25, 1871. On December 27, 1871, Houghton county withdrew from consideration all lands contained in the lists filed in 1863 for which patents had not issued. Relator's counsel ascribe this action to the fact that many of such lands had been sold. See People, ex rel. County of Houghton, v. Commissioner of State Land Office, 23 Mich. 270, 277. Counsel agree that there was a large quantity of land to which it was entitled for which patents had not issued, at that time, some of which has been patented to the relator or his assignors since. The relator is the assignee of the county of Houghton, which, having completed and paid for the road with taxes raised in accordance with the act, has sold its right to lands not patented, amounting to 1,883 acres, and, so far as we can discover, the county has made no objection to relator's claim, even if it is in a situation to do so, which we need not and do not decide. So the case is not different than it would be were Houghton county making this application, and the commissioner refusing to issue patents to it, upon the ground that it had lost its right to them through lapse of time. In short, the case may be stated as follows: 1. The State, for the purpose of internal improvement, |