
    Helen Huber and Others, as Executors, etc., of Otto Huber, Deceased, Appellants, v. Franklin B. Case, Jr., and Others, Defendants. William H. D’Esterre, Respondent.
    
      Motion by a purchaser to be relieved from a purchase at a mortgage foreclosure sale — what deed is not an exercise of a power of sale — a deed and declarations made by a widow and children, insufficient where there are contingent remainders —chmacter of partnership real property.
    
    Upon a motion by the purchaser at a mortgage foreclosure sale to be relieved from his purchase, it appeared that the property was conveyed by deed to Cornelius C. Poillon and Richard Poillon as tenants in common; that Cornelius C. Poillon, died, leaving surviving him a widow and five children; that, by the terms of his will, he directed his executors to divide his estate into three equal shares, to pay to the widow during life in lieu of dower the income of one of the shares, the principal of sjucli share being devised and bequeathed upon her death to his children, to be divided equally among them, “the issue of any deceased child or "children to take the share which his, her or their parent would have been entitled to if living; ” that the will also empowered the testator’s executors to sell his real and personal estate, “ either for cash or- part on bond and mortgage, as they may in their discretion deem advisable.’’
    It further appeared that after the testator’s death his widow and surviving children and his executors executed to the said Richard Poillon a deed which recited, “whereas the said Cornelius Poillon (lately deceased) and the said Richard Poillon party hereto of the fourth part were heretofore in the lifetime of the said Cornelius seized as tenants in common of the real estate hereinafter described with other property and the parties hereto ham arranged a division of all said real estate held in common whereby the property hereinafter described belonged to the said party of the fourth part and the said party of the first part accepts the provision made for her by the will of said Cornelius Poillon, deceased, in lieu of her dower in his real estate,” and which, in consideration of the conveyance by Richard Poillon to the sons of- the said Cornelius C. Poillon of the shares in the real estate which had been set off to them in the division, granted and conveyed to Richard Poillon the premises in question.
    In answer to the purchaser’s motion, one of the executors of Cornelius C. Poillon alleged that the property in question was partnership property belonging to a copartnership consisting of Cornelius C. Poillon and Richard Poillon, having • been purchased with partnership funds and should be treated as personal property.
    The court having granted the purchaser’s motion, formal declarations to the effect that the property was partnership property were executed, acknowledged and recorded by the surviving executor of Richard Poillon and by the widow, executors and surviving children of Cornelius C. Poillon. A motion was then made to vacate the order relieving the purchaser from his purchase.
    
      Meld, that the deed to Richard Poillon could not be regarded as an exercise of the power of sale conferred on the executors of Cornelius C. Poillon;
    That such deed was pot sufficient to pass the title vested in the heirs of Cornelius C. Poillon, as it did not and could not dispose of the interest passing, upon the widow’s death, to the issue of deceased children of the testator;
    That, even if the shares passing to the testator’s children were vested, they were subject to be divested in favor of their issue by their death prior to that of the widow;
    That, assuming that the declarations that the property in question was partnership property were sufficient to effect a conversion of such property into personalty, an adjudication to that effect would not be binding upon a future claimant under the will of the said Cornelius C. Poillon, and that a purchaser of the premises would he compelled to resort to parol proof if his title was attacked by such a claimant;
    That, consequently, the motion to vacate the order relieving the purchaser from his purchase should have been denied.
    In the absence of an agreement, express or implied, between the partners to the contrary, partnership real estate is to be deemed in equity as changed into personalty only to the extent necessary for the purposes of partnership equities; and its general character as realty continues with all the incidents of that species of property, between the partners themselves and also between a surviving partner and the representatives of a deceased partner, except that each, share is impressed with an implied trust for the performance of partnership obligations.
    Appeal by the plaintiffs, Helen Huber and others, as executors, etc., of Otto Huber, deceased, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 17th day of November, 1903, refusing to vacate a prior order which granted a motion made by the respondent, the purchaser, at a foreclosure sale in the above-entitled action, to be relieved from his purchase.
    
      Hugo Hirsh, for the appellants.
    
      James P. Judge, for the respondent.
   Hirschberg, P. J.:

By the order appealed from the court refused to vacate a prior order granted in this action, by which the purchaser at a sale of real estate, had under a judgment of foreclosure, is relieved from his purchase, for the reason that the title to the premises is not regarded as good and marketable.

The property was conveyed by deed to Cornelius C. Poillon and Richard Poillon as tenants in common on April 4,1870. Cornelius C. Poillon died on July 11,1881, leaving a widow and five children, and leaving a will by which his executors were given a power of sale of his real and personal estate either for cash, or part on bond and mortgage as they may in their discretion deem advisable.” The will was admitted to probate July 28, 1881. By the terms of the will the executors were directed to divide the estate into three equal shares, to pay to the widow during life in lieu of dower the income of one of the shares, the principal of such share being devised and bequeathed upon her death to his children to be divided equally among them the issue of any deceased child or children to take the share which his, her or their parent would have been, entitled to if living.”

On February 1, 1882, the widow of Cornelius C; Poillon, his then surviving children and the executors executed and delivered to Richard Poillon a deed which recites that whereas the said Cornelius Poillon (lately deceased), and the said Richard Poillon party hereto of the fourth part were heretofore in the lifetime of the said Cornelius seized as tenants in common of the real estate hereinafter described with other property and the parties hereto have arranged a division of all said real estate held in common whereby the property hereinafter described belonged to the said party of the fourth part and the said party of the first part accepts the provision made for her by the will of said Cornelius Poillon, deceased, in lieu of her dower in his real estate; ” and in consideration thereof and of the conveyance by Richard Poillon to the sons of the deceased of the shares in the real estate which had been set off to them in the division, grants and conveys to him the premises in question. Richard Poillon died on July 4, 1891, but. the widow of Cornelius C. is still living.

The title, of the purchaser would apparently depend upon the sufficiency of this deed to convey in fee the interest of the decedent and his heirs. It cannot be regarded as a proper exercise of the powér of sale conferred by the will for no sale has taken place within the meaning and intent of that provision, and as a conveyance of the interests of the heirs it is subject to the obvious objection that it' cannot dispose of the future rights of issue of the testator’s children in whom interests may vest at the death of the widow after the death during her lifetime of their páront. The shares of the children, even if vested, are still subject to be divested on the contingency suggested. (Lyons v. Ostrander, 167 N. Y. 135.) The plaintiffs meet the objection by the assertion that the real estate in question is partnership property having been purchased with partnership funds by Cornelius C. Poillon and Richard Poillon as members of the firm of C. & R. Poillon, and consequently is to be treated as personal estate. This assertion was contained in an affidavit made by one of the executors of the' deceased on the motion made by the purchaser to be relieved of his purchase, and after the order was made granting such relief formal declarations to the effect that the property was-partnership property were executed, acknowledged and recorded by the surviving executor of Richard Poillon and the widow, executors and surviving children of Cornelius 0, Poillon, and thereupon the motion to vacate the prior order was made which second motion resulted in the order appealed from..

In the absence of an agreement, express or implied, between the partners to the contrary, partnership real estate is to be deemed in equity as changed into personalty only to the extent necessary f or the purposes of partnership- equities-,; and its general character as realty continues with all the incidents of that species of property, between the partners themselves and also between a surviving partner and the real and personal representatives of a deceased partner, except that each share is impressed with an implied trust for the performance of partnership obligations. (Darrow v. Calkins, 154 N. Y, 503.) Assuming, however, that the affidavit and declarations referred to tend to establish an out and out ” conversion of the realty into personalty, there is no adjudication to that effect which would be binding upon a future claimant under the will of Cornelius . C. Poillon. The declarations referred to would not be competent evidence against such claimant. (Hutchins v. Hutchins, 98 N. Y. 56 ; Williams v. Williams, 142 id. 156.) The purchaser or his grantees would be compelled to resort to parol proof’ in the defense of their title if assailed, and it is settled that when the title to real property depends upon questions of fact and resort must be had to parol evidence, a purchaser will not be compelled to perform his contract. (Irving v. Campbell, 121 N. Y. 353; Holly v. Hirsch, 135 id. 590 ; Heller v. Cohen, 154 id. 299.)

The order should be affirmed.

All concurred.

.Order affirmed, with ten dollars costs and disbursements.  