
    *Davis v. Christian & als.
    
    January Term, 1859,
    Richmond.
    1. Partnerships — Terminated by Death of One Partner— How Continued. — Though, as a general rule, a partnership, whether for a definite or indefinite period, is terminated by the death of one of the partners; yet it may be continued longer by express agreement between the partners, or under the provisions of the will of the deceased partner, with the consent of the surviving partner. But in the latter case, if the testator merely direct that the partnership be continued after his death, the responsibility of his estate will be limited to the funds already embarked in the trade: Though he may make it cover his whole estate, if he chooses so to direct.
    2. Same — Direction in Will of Deceased Partner to Sell Property to Carry on Business — Effect.—Testator directs his partnership with C to be continued if C will consent to fit, and gives him full power over his interest in the partnership for carrying it on; and also authorizes his executors to sell all his estate to enable G to carry on the business to greater advantage, orto pay the debts which may be due and owing from the partnership at any time during its continuance. The effect of this provision was not to give the executors a mere discretion to sell the real estate or not at their pleasure during the continuance of the partnership, but to create a trust in favor of creditors of the partnership.
    3. Same — Partnei-ship Realty — Natuie of.  — Real estate may, in equity, be converted out and out into personalty by the agreement of the partners, or the manner in which it is conveyed to them. So real «'state bought with partnership effects for partnership purposes, though conveyed to the individual partners, is thereby converted into personalty, at least to the extent that may he necessaryfor the purpose of paying the debts of the partnership, and adjusting the accounts between the partners: Quasiie: if it is converted to any iurther extent, or out and out.
    4. Same-Conversion of Realty — Mow Conveyed— But every such conversion of real estate into personalty, whether express or implied, complete or partial, is equitable only; and the property can only be conveyed as real estate, and by each partner, in order to pass the whole to the grantee.
    5. Executors — -Powers of — Right of Survivor to Execu te. —It seems that a power given to executors by name, if the will does not point to a joint exercise of it, may be executed by thesurvivor.
    *6. Same — Discretion in Exercising aPower — Sur=-vival of Power. — A power given to executors will survive, though a discretion is given to them in regard to the exercise of the power.
    7. Same — Discretionary Power to Sell — Purchasers-Application of Purchase Money. — Where a discretionary power to sell is given to executors, a purchaser from them, if he acted bona fide, will not be affected by the manner in which they exercised their discretion. And if the power is to sell for the payment of debts generally, the purchaser is not bound to see to the application of the purchase money.
    8. Lis Pendens — When Applies. — The doctrine of lis pendens only applies where there is a suit to affect the property purchased, and can have no effect upon it unless a decree may be made in the suit to affect it, nor until such decree is made.
    9. Pendente Lite Purchaser — Facts in Record of Suit at Time of Purchase — Effect.  — A purchaser having constructive or actual notice of a pending suit, can only be held chargeable with knowledge of the facts of which the record in the suit, as it existed at the time of his purchase, would have informed him. If these facts inform him that the vendor is committing a fraud in making the sale, he becomes a party to the fraud. But he cannot be charged with the knowledge of facts afterwards brought into the case.
    10. Breach of Trust by Executors -Purchasers for Rights and Liabilities. — To convict a purchaser of a fraudulent participation in a breach of trust by an executor having authority to sell, the evidence of notice of the fraudulent intent on the part of the executor, ought to be very strong. The purchaser has a right to presume, in the absence of ail direct or plain proof to the contrary, that the executor is exercising his power fairly and faithfully, in conformity to his duty.
    At the time of the death of Josephus B. Colton, which happened between the 15th day of August 1829, the date of his will, and the 3d day of October 1831, when it was recorded, he and his brother in law Henry Clarke were, and for several years before had been, engaged in mercantile business in the city of Richmond, carried on in a house on E street, which had been bought with the funds and for the purposes of the partnership, and is the subject of controversy in this case. The firm was chiefly engaged in the dry goods business. But it was also engaged in selling paper on commission, to'a large amount, chieflj' if not entirely for D. & J. Ames of Springfield, Massachusetts. Josephus B. Colton left a widow, Abby Colton, who was a sister of Henry Clarke, and three children, to *wit: Jane Eliza, Hannah Maria and Sarah Ann, all of which children were infants of tender j’ears. His will, which was dated and recorded as aforesaid, contains, among others, the following clauses:
    “1st. It is my will and desire that all my just debts, both individually and as a partner of the firm of Colton & Clarke of the city of Richmond, be paid ; and for that purpose I do hereby subject all my property real and personal, ‘and give full authority to my executors herein after named to sell and convey any and all of my estate real and personal, if necessary, for that purpose.”
    “4th. It is furthermore my will and desire, if the said Henry Clarke will consent thereto, that the business now carried on under the firm of Colton & Clarke shall be continued under the said name by the said Henry Clarke for the joint and equal benefit of himself and my estate so long as he and my wife Abby Colton shall desire and consent thereto — and to that end that all my property vested in the business remain under the control of the said Henry Clarke for that purpose, to be sold and disposed of and new purchases made in like manner as if I were in full life, and the partnership were continued. And should it at any time, in the opinion of my executors herein after named, be deemed necessary by them to sell any or all of the real estate now held jointly by me and the said Henry Clarke, or by me individually, or jointly with any other person, to enable the said Henry Clarke to prosecute to greater advantage the said business, or to pay the debts which may be due and owing from the same at any time during the continuance of the said business, I do hereby desire and fully authorize my said executors herein after named to sell and convey the same in fee simple for that purpose.
    “5th. If at any time mj’ wife Abby Col-ton or said Henry Clarke shall determine. to close the said business, *1 will and desire that the proceeds of such business and all my estate real and personal, be divided among my said wife and my three daughters Jane Eliza, Hannah Maria and Sarah Ann, as follows, to wit: one-third thereof to my wife, and her heirs and assigns, and the residue to be equally divided between my said daughters and their heirs and assigns.
    “6th. If upon the marriage or coming of age of any one or all my said daughters, or at any time after, she or they shall require | her or their proportion of my estate to be paid unto- her or them; it is my desire that it be done, and the business so far as she or they maj' be concerned, to cease, but to continue as to those not requiring it, until the marriage or coming of age of all of them, when such an arrangement may be made by all parties as shall suit them.
    “7th. I will and desire that so long as my said children or any one of them shall remain unmarried or are under age, that my wife keep them, or such as are unmarried or under age, with her, and that the support of my wife and children, so as aforesaid living together, whether of age or not, be furnished and provided from the business so as aforesaid to be conducted by the said Henry Clarke, so long as the same shall be so conducted,' and a joint charge made of the. same to my estate, and not to each of them separately.”
    “10th. I hereby appoint mjr wife Abby Colton and my brother in law Henry Clarke executors to this my last will and testament; and it is mjr desire that no security be demanded or required of them or either of them in that capacity.”
    Abby Colton and Henry Clarke qualified as executrix and executor of the will, giving a joint bond as such without security.
    After the death of J. B. Colton, the business which had been carried on under the firm of Colton & Clarke, was continued under the same name by Henry Clarke, *in pursuance of the provisions of the said will. At the close of the year 1834, the stock of dry goods of the firm of Colton & Clarke was sold out by them at auction; and they never did any dry goods business after that time, except that they were in the habit of purchasing and selling a few pieces of broadcloth occasionally. But they continued to sell goods on commission, mostly paper for printing and writing purposes, and especially paper consigned to them by D. & J. Ames aforesaid.
    In October 1837 Hannah M., one of the three children of J. B. Colton, intermarried with Patrick H. Eitzhugh. They had issue but one child, which died in July 1839. Shortly thereafter Eitzhugh and wife instituted a suit in chancery in the late Circuit superior court of law and chancery for the county of Henrico and city of Richmond, for the purpose of having their interest in the estate real and personal of the said J. B. Colton, decreed to them. Henry Clarke and Abbjr Colton, as executor and executrix of J. B. Colton, and in their own right, and Jane Eliza and Sarah Ann Colton were made defendants to the suit. Not long after the institution of the suit, the plaintiff Hannah M. Eitzhugh and the defendants Jane Eliza, Sarah Ann and Abby Colton, all died; to wit: the said Hannah M. in December 1839, aged nineteen years; Jane Eliza in December 1840, aged 22 years and 5 months; Sarah Ann in September 1841, aged 18 years and 1 month; and Abby Colton in May 1843. Before the death of Abby Colton, to wit: in January 1843, she filed her answer to the bill. She left a will, which bears date on the 26th day of December 1842, and was recorded on the 13th day of June 1843. It contains, among other clauses, the following:
    “Thirdly. It is my will and I do hereby direct that as soon as practicable after my decease, having a just regard to the interests of all concerned, the business ’now conducted in the city of Richmond under the firm of Colton & Clarke, be brought to a close. And for that purpose I do hereby authorize, empower and direct my executors hereinafter named to sell, transfer, assign and convey on such terms and in such manner as they may deem most advisable, all my right, title and interest in and to the real and personal property which shall belong to the firm of Colton & Clarke, and shall constitute a portion of the funds of said firm at the time of my said decease; and also to sell or otherwise dispose of all the real and personal property other than the slaves hereinafter named, which I shall stand seized or possessed of at the time of my death, either in my own individual right or conjointly with any other person whomsoever, and to invest the proceeds arising from the sale or disposition of such property real or personal in other productive real estate, or in government stocks of the United States or the state of Virginia, or in both the one and the other.”
    Henry Clarke and William J. Clarke, executors named in the will, qualified as such, but without giving security; the will directing that none should be required of them.
    Henry Clarke also filed an answer to the bill. An order of account seems to have been made in the cause, but the date of it does not appear. After the deaths of the plaintiff Hannah M. Eitzhugh and the defendants Abby, Jane 13. and Sarah A. Colton as aforesaid, an amended bill was filed to revive the suit in the name of Patrick H. Eitzhugh, in his own right, and as administrator of his wife Hannah M., as plaintiff, and the following named persons as defendants, viz: Henry Clarke in his own right, and as surviving executor of and trustee under the will of J. B. Colton, Henry and William J. Clarke, as executors of Abby Colton, the personal representatives of Eliza J. and Sarah A. Colton, when any should be appointed, and John J. Shuble *and Elizabeth J. his wife, she being next of kin and heir at law of Sarah A. Colton on the father’s side. Henry Clarke also filed an answer to the amefided bill.
    Commissioner Shore having executed the order of account aforesaid and returned a rejjort thereof, and an exception having been taken thereto by William J. Clarke, executor of Abby Colton, the cause came on to be heard on the 8th day of July 1851, when the court sustained the said exception so far as to withhold for the present any decree against the executor of Abby Colton, confirmed the report as to the defendant Henry Clarke, and decreed that he should pay to Richard A. Christian, assignee of the plaintiff Patrick H. Eitzhugh, administrator of Hannah M. Eitzhugh, eight thousand two hundred and thirty dollars and fifty cents, with interest on seven thousand seven hundred and sixty-seven dollars from the 31st day of December 1849 until paid, reserving liberty to the plaintiff or his said assignee to apply for relief thereafter, as to the executors of Abby Colton, in case the decree against Henry Clarke should prove unavailing.
    Before the decree was rendered, to wit, on the 27th day of February 1846, the tenement on E street in the city of Richmond, in which Colton & Clarke had carried on their business, and which had been bought with the funds, and for the purposes of the partnership as aforesaid, was sold and conveyed to Benjamin Davis for nine thousand dollars, by deed of that date executed by Henry CÍarke and Mary M. his wife, in their own right, the same Henry Clarke as surviving executor of Josephus B. Colton, the same Henry Clarke and William J. Clarke as executor of Abby Colton, and the same Henry Clarke as surviving partner of the said firm of Colton & Clarke. The receipt of the purchase money was acknowledged in the deed. The deed contained a covenant of general warranty. And as an additional security a bond of indeni-nity ^bearing the same date with the deed, was executed by Henry and William J. Clarke and Nathaniel C. Cren-shaw, to secure Davis, and especially to indemnify him against any claim or demand of Patrick H. Eitzhugh or Shuble and wife, or any person claiming under them, or either of them.
    In August 1851 the suit, in which was rendered the decree appealed from in this case, was instituted by Richard A. Christian, assignee of P. H. Eitzhugh, &c., to impeach and set aside, as fraudulent and void, the deed which had been executed to Davis as aforesaid. Davis, the two Clarkes and other proper parties were made defendants to the suit. The plaintiff in his bill, among other things, avers that Colton & Clarke, in the lifetime of Colton, carried on a dry goods business in a tenement on E street in the city of Richmond, purchased by them with the profits of the partnership, for partnership purposes; that Clarke continued after Colton’s death to carry on the business in the same tenement, with Abby Colton’s consent, until the close of the year 1834, during which time the business was prosperously conducted; that it not having been necessary to pay any debts of the concern of Colton & Clarke or of Colton, or to prosecute the business to greater advantage, to make sale of any of the real estate of the testator, none of it was sold during all the period aforesaid for which it continued. That at the close of 1834, with the common consent of Henry Clarke and Abby Colton, the business was discontinued, and Clarke sold off at public auction the whole stock of goods of the concern, and never after that purchased any more; that this cessation of the business was open and notorious, and well known in the city of Richmond and to the public generally; for Clarke thereafter embarked in other totally different business, and among other things, in coal mining and shipping coal in the count}' of Chesterfield, which *turned out disastrously. But that he was still allowed by Abby Colton his coexecutor (her daughters being infants living under the protection of their mother, and thus having no voice or control in the matter), to retain the control and management of the whole estate of Colton, and in flagrant violation of the duties and obligation of both, to pervert the funds of the estate of Colton and of the concern into these new and unauthorized channels of employment and speculation until, before the death of Abby Colton, much of the estate and of the partnership funds had been by Clarke squandered and misspent; and he himself had become insolvent, as was then well and publicly known; nor had Abby Colton, at her death, wherewithal to make g'ood the default of Clarke, she having no estate other than what she was entitled to under the will of her husband. •The plaintiff then (after referring to the marriage of Fitzhugh and wife, the birth, and death of the only child of the marriage, the suit instituted by Fitzhugh and wife as aforesaid, and till pending, the assignment by Fitzhugh of all his interest in the estate of Colton to the said Richard A. Christian, the successive deaths of Hannah M. Fitz-hugh and Jane Fliza, Sarah Ann and Abby Colton, the revival of the said suit in the names of the personal representatives of the said decedents respectively and of Shuble and wife, in her right as next of kin and heir at law ex parte paterna of the said Sarah Ann, the decree recently rendered therein as aforesaid, and the fact that no decree had been made therein, in regard to the real estate of Colton, although Shuble and wife and Christian as assignee aforesaid, had been and still were pressing for a decree which should adjudge and assign them their rights respectively in the premises),' charges that after the death of Abby Colton, and after the institution of the suit of Fitzhugh v. Clarke, and while the same was in the full course of prose- • cution, *and after the deaths of said Ann Fliza and Sarah Jane, and many years after the concern of Colton & Clarke had closed, Henry Clarke, without the slightest pretence that any debt existed, due either from the estate of Colton or from said concern, to paj' which his real estate should be sold, but with a design to pay a private personal debt contracted by him long after the business of Colton & Clarke had been closed, and to place the proceeds of sale under the control and to the personal use of the said Henry Clarke, fraudulently combined and confederated with Benjamin Davis and William J. Clarke joint executor with Henry Clarke of Abby Colton, to sell, and did sell the tenement on E street to Davis, who paid the purchase money to or for the use of Henry Clarke, he the said Davis and said Henry and William J. Clarke then and there well knowing all the.f;acts stated in the bill, which rendered the sale of the testator’s interest in the tenement unnecessary, improper and illegal, and that the money was to be paid to or for the personal use of Henry Clarke, well knowing the large indebtedness of Henry Clarke to the estate of Colton, and well knowing the pendency and object of the suit of Fitzhugh v. Clarke, the Clarkes being actually parties to it, and Davis having preparatory to the purchase aforesaid, employed counsel to investigate the state of the title to said tenement, who became fully acquainted with the terms of Colton’s will, and the pendency and objects of said suit, and advised him thei'eof; in consequence of which, Davis obtained from Henry Clarke a bond of indemnity as aforesaid: And then, to consummate their joint fraud, Henry Clarke professing to act in his own right and as surviving partner and executor of Colton, and he and William J. Clarke, as executors of Abby Colton, united in conveying the said tenement to Davis. The plaintiff then prays that the sale may be declared fraudulent and void and the deed set aside, *that an account of rents and profits and all other proper accounts may be taken, and for a discovery and general relief.
    The defendant Davis filed his answer; in which he admits that he did purchase the said tenement and paid therefor the sum of nine thousand dollars in cash, and receive a conveyance, of which he exhibits a copy. He also admits that he had heard there was some cloud over the title of a portion of the property, by reason of some claim to it by P. H. Fitzhugh and Shuble and wife; against which claims he required and obtained a bond of indemnity, of which also he exhibits a copy. He says he may have heard before his purchase of the pendency of the said suit, upon the original bill, but he cannot affirm distinctly that he had or had not. He does not admit that any fraud was practiced by the surviving partner, Henry Clarke; but protests that if any such fraud was practiced, the respondent had no participation in it; knew nothing of it, and is in no manner responsible for it'. He insists, that whether the said tenement be regarded as real or personal estate, as individual or partnership property, or whether it was sold for the payment of a debt of the partnerhip or not, the deed under which lie claims conferred upon him a perfect title, and that he was not bound to see to the application of the purchase money. But in fact, he says the property was sold for and the purchase money applied to the payment of a debt of the partnership. He says that Colton & Clarke, at the time of Colton’s death, was engaged, among other things, in a commission business with D. & J. Ames, and were largely indebted on account thereof: that after his death the business was continued under the authority of his will; and in the course of the said dealing, and for the purpose of discharging the debt due to D. & J. Ames, it was necessary that Colton & Clarke should procure large discounts, which '*they did by the aid of Davenport & Allen, who became their endorsers; and to secure them against loss by their endorsements, Henry Clarke and Abby Col-ton, in their own right and as executor and executrix of J. B. Colton, executed a deed of trust on the said tenement. That at the date of the sale to the respondent the debt to D. & J. Ames amounted to at least nine thousand dollars; and that on the 17th of March 1846 the respondent’s check for nine thousand dollars, the price of said property, was passed by Henry Clarke to Davenport & Allen, and the amount received by them at the bank. The answer contains other statements, which, however, it is unnecessary to notice.
    Besides the deeds before mentioned, the defendant Davis also exhibited a copy of the deed from Tate and wife to Colton & Clarke for the tenement in question, a copy of J. B. Colton’s will, a copy of Abby Colton’s will, and a copy from the books of Colton & Clarke, showing the state at different times of the account of D. & J. Ames for sales of paper made on their account by Colton & Clarke; from which it appears that the account was rendered eighteen times between July 10, 1829, and May 1, 1844, inclusive; that the amount varied in that period between seven thousand three hundred and twenty-six dollars and eighteen cents, the minimum, and seventeen thousand seven hundred and forty-two dollars and seven! y-eight cents, the maximum; the amount due on the former day being the minimum, on the latter eight thousand three hundred and twenty-eight dollars and ninety-four cents, and on the 14th of April 1843, which was about the period of Abby Colton’s death, eleven thousand eight hundred and fifty-seven dollars and sixty-five cents.
    The plaintiff filed as exhibit copies of portions of the record of the suit of Ritz-hugh v. Clarke, which have been before referred to.
    No other answer was filed than that of Davis, and *ono for the infant defendants, to which answers the plaintiff replied generally. As to all the other defendants, the bill was taken for confessed.
    Rour depositions were taken in the case; two on behalf of the plaintiff, and two on behalf of the defendant Davis.
    T). H. Reed, examined on behalf of the defendant, proved, among other things, that he lived with Colton & Clarke as bookkeeper from the 18th of October 1836 to the 1st of May 1848. Their business was selling goods on commission, mostly paper for printing and writing jmrposes; which was consigned to them almost entirely by D. & J. Ames. Witness kept the books of Colton & Clarke, and did most of the writing in them while he was in their employment. He made the statement from the books, which is filed as an exhibit by the defendant Davis as aforesaid. The purchase money for the tenement sold to Davis was received by Davenport, Allen & Co., through some private agreement, in consequence of a deed of trust having been made upon the property for their benefit, which had not been recorded. The debt to Davenport, Allen & Co. was created in this way: Colton & Clarke were in the habit of giving toD. & J. Ames, on account of balances due them for sales of paper, notes or acceptances, payable in New York. To meet the payment of such notes and acceptances, they were in the habit of obtaining from Davenport, Allen & Co. their drafts on the house of I. Davenport & Co. of New York, for which drafts Colton & Clarke gave in exchange their negotiable notes, payable in Richmond. At the time of the sale of the house, the amount of such notes held by Davenport, Allen & Co. constituted the debt referred to above. This course was pursued, because the drafts spoken of could, be readily discounted. When witness left the employment of Colton & Clarke there was a balance still standing on *their books to the credit of D. & J. Ames, of about four thousand dollars.
    24
    On cross examination, the witness proved that no dry goods business was done by-Colton & Clarke after he went into their employment, except that they were in the habit of purchasing and selling a few pieces of broadcloth occasionally. There were debts and credits on the books to the firm of Pleasants & Clarke, of which Henry Clarke was a member, and which was engaged in the business of buying, growing and selling mulberry trees (principally morus multicaulis), and raising silk worms. There were similar entries on said books to the firm of A. & A. Wooldridge & Co., of which Henr3T Clarke was also a member, and which was engaged in the mining and selling of pit coal. The estate and effects of that concern were sold out by trustees. Certain lots opposite Rocketts, called the Coalyard island, were purchased at said sale by and in the name of Henry Clarke, for between nine and ten thousand dollars. They were sold by witness as trustee, in 1848, for between twenty-three and twenty-four hundred dollars. When witness lived with Colton & Clarke, they were part owners of two schooners.
    William Sinton, examined on behalf of the plaintiff, proved, that he kept the books of Colton & Clarke in 1826, 1827 and 1828. No change took place in their business prior to Colton’s death in September 1829. They engaged in no speculations, and were doing a safe and profitable business, having frequently purchased real estate out of the profits of the concern, lyitness struck a balance sheet of the books in 1828, and thought each of the partners then worth from twenty to twenty-five thousand dollars, exclusive of bad and doubtful debts. They were in the habit of doing business very cautiously, and not of contracting debt's and leaving them long unpaid.
    The tenement *in controversy was purchased by Colton & Clarke out of the profits of their business. Henry Clarke sold out the dry goods of Colton & Clarke at auction at the close of 1834, which was considered by every body as a final close of the dry goods business of that concern : and they never did any dry goods business after that time. Henry Clarke and William J. Clarke have both taken the insolvent oath. Henry Clarke, after Colton’s death, engaged in coal mining in Chesterfield, and in speculating in morns multicaulis trees and in vessels, and in 1842 or 1843 became so much embarrassed, that it was pretty generally known about Richmond.
    D. H. Reed, re-examined on behalf of the •plaintiff, proved, that counsel employed by defendant Davis investigated the title to the property before the conclusion of the purchase; and in . consequence of this investigation, the bond of indemnity aforesaid was required and given.
    The deed of trust for the benefit of Davenport, Alien & Co., before referred to, was executed in 1845. It was not recorded by agreement between them and Henry Clarke, because he thought it would injure the credit of Colton & Clarke to have it recorded. It was in consequence of this deed that Davenport, Allen & Co. received the purchase money of the property. The debt to Davenport, Allen & Co. commenced after 1840.
    Isaac Davenport, examined in behalf of the defendant Davis, proved, that on the 16th of March 1846 Henry Clarke paid Davenport, Allen & Co., Davis’ check for nine thousand dollars. They had a deed of trust on the tenement in controversy to secure a debt due to them by Colton & Clarke. It was executed by Henry Clarke, and witness thinks, but is not certain, by Abby Colton also. Thinks it was given a year or more before the payment of the nine thousand dollars. *When given, Henry Clarke requested that it should not be put upon record, unless something should occur to render it necessary; and therefore it was not put upon record, but retained by Davenport, Allen & Co. until the payment of the nine thousand dollars, and then delivered to Henry Clarke. A portion of the debt to Davenport, Allen & Co. was created three or four years before the payment of the nine thousand dollars: at one time it amounted to ten thousand dollars. It amounted to between seven thousand six hundred dollars and seven thousand seven hundred dollars when the nine. thousand dollars were paid. It was for notes issued at various times and for different sums, by Davenport, Allen & Co. to Colton & Clarke for the accommodation of the latter, and discounted at bank. When they were given, witness had see“n no notice of dissolution of the firm of Colton & Clarke, and believes it was understood by the mercantile community and the banks that the firm was still in existence. They kept a store on Main street in Richmond, and dealt in paper and some other goods. Henry Clarke used the name of Colton & Clarke in all business transactions with Davenport, Allen & Co., during the period aforesaid.
    On the 25th of January 1855 the cause came on to be heard, and the court, being of opinion that the tenement in controversy was partnership assets of Colton & Clarke, and that at the time of the sale the partnership was dissolved, and Henry Clarke was a large debtor to the firm, and made the sale in fraudulent violation of his duty as surviving partner, of which Davis, when he purchased the tenement, had notice, and that the deed to him therefor is, as to the plaintiff and the legatees of the will of J. B. Colton, fraudulent and void, decreed that the said deed be set aside and annulled. And the plaintiff and the other legatees of J. B. Colton being willing and con-sen ting *to receive of the'said Davis, if he shall so elect, in full discharge of their claims against him for the property and its profits, the value of the property at the time he acquired it, with interest thereon from that time, and to take as such value the said sum of nine thousand dollars, and to dispense with any account of its value and the profits thereof, the court further decreed that upon the payment by the said Davis of the said sum of money and interest into bank to the credit of the cause, and filing a proper certificate of such payment, he should be forever acquitted, as against the plaintiff and the said legatees, in his title and possession of said property, and as to them discharged of all claim for the same and its profits. But unless the said Davis should fully comply with the terms aforesaid within sixty days after being served with a copy of the order, the court further decreed that the property should be sold at public auction, by a commissioner appointed for'the purpose.
    From this decree the defendant Davis applied for and obtained an appeal.
    William Green and Byons, for the appellant, insisted:
    1st. That the doctrine of lis pendens did not apply to the purchaser in this case. That it only applied where the pending suit was a suit to subject the property, and there was a decree in favor of the claimant; and the only effect of the lis pendens was to make the purchaser take the property subject to the decree. They referred to Newman v. Chapman, 2 Rand. 93; French v. Boyal Company, 5 Beigh 627; Beame’s Orders in Chancery' 7; Brightman v. Brightman, 1 Rhode Isl. R. 112. And they referred to the record in the first case to show that the bill did not claim to subject the property; and that the only decree was a personal decree against Clarke.
    2d. That though the house and lot purchased by *Davis was paid for out of the partnership funds, and was used for partnership purposes, it having been conveyed to Josephus Colton and Henry Clarke individually, it was not partnership property as to third persons dealing with one of the partners. Ridgway, Budd , &. Co.’s Appeal, 15 Penn. R. 177; Deloney I v. Hutcheson, 2 Rand. 183. That as to part-j ners real estate is held to he personal only ( so far as is necessary to give each partner an equality in the partnership; but as to a deceased partner, it descends to his heirs and not to his administrator. That Judge Tucker is not sustained by the authorities he cites, in saying in 'Wheatley’s heirs v. Calhoun, 12 Heigh 264, that the realty is converted for all purposes into personal estate. They referred to Story Part. ?< 92, 93; Stuart v. Bute, 11 Ves. R. 665; Hart’s devisees v. Hawkins’ heirs, 3 Bibb’s R. 502; Yeatmau v. Woods, 6 Yerg. R. 20; Black v. Black, 15 Georgia R. 445; Buchan v. Sumner, 2 Barb. Ch. R. 165; Buckley v. Buckley, 1Í Barb. S. C. R. 43; Anderson & Wilkins v. Tomkins & al., 1 Brock. R. 456, 463; Piott v. Oliver, 3 McEean’s R. 28; Carrington’s heirs v. Brent, 1 Id. 175; Preston v. Tublin, 1 Vern. 286. And they insisted that this being so, Davis was at least entitled under the deeds from Henry Clarke, the executor of Josephus B. Colton and the executors of Abby Colton, to the one moiety belonging to Clarke and to seven-ninths of the other moiety, of the house and lot; and therefore it was error to make the sale dependent on the pajnnent of nine thousand dollars, which the plaintiff admitted was the full value of the property. »
    3d. That the partnership of Colton & Clarke terminated with the death of Colton, and the rights of the parties in the property were then fixed. That a new partnership was not then formed, but Clarke carried on the business, and he incurred the risk, vested with a trust by Colton, by which Colton’s estate was to '"'share the profits and losses as far as his property would go; but that Clarke’s liabilities might extend much further. That partners are joint tenants with the jus accressendi at law and equity, subject to account to the representatives of the deceased partner; but until he is called to account, the deceased partner’s representative is not entitled to any particular interest in any particular chose. Clarke, therefore, had in him, until called to account, the whole interest in the property, and could sell to a purchaser without notice, who might hold it as such purchaser. That Davis was a bona fide purchaser for value without notice of any violation of his trust by Henry Clarke, or of his insolvency, the account not having been taken when the purchase was made; that Davis was not bound to see to the application of the purchase money ; and that in fact it was applied to the payment of a debt of Colton & Clarke.
    R. T. Daniel, for the appellees.
    Whether the house and lot in controversy is to be considered real estate, or a part of the social effects of Colton & Clarke, is an important question in this case. If social effects, Ritzhugh has the absolute interest in his wife’s share, and is entitled to come upon this property to have his debt paid; and if that debt covers the whole value, Clarke had nothing in the property, and could convey nothing to Davis. If it was real estate, Ritzhugh would have but a tenancy by the curtesy in two-ninths of it.
    It is not material whether the old partnership continued after Colton’s death, or a new one was formed, or there was no partnership existing. The will of Colton gave power to Clarke to carry on the business as if there was a partnership and Colton was alive; and directs all the property therein to remain there. It is this power under which he is to manage and dispose of the partnership property, and not the power *under the will to sell property not then a part of the social effects.
    This house and lot was bought with partnership effects, and used for partnership purposes at the time of Colton’s death, and therefore it was to be kept in the business. Ror authority for such a business the court is referred to Burwellv. Mandeville’s ex’or, 2 How. U. S. R. 560, 576; Pitkin v. Pitkin, 7 Conn. R. 307.
    Whatever may be the conflict of opinion elsewhere upon the question whether property such as this is real or personal estate, in Virginia, it is settled by the decisions of this court that it is personal estate to all purposes. Brooke v. Washington, 8 Gratt. 248. And this seems now to be the opinion in Rngland. Bissett Part. ch. 2, p. 26-33. At the date of the decree in Ritzhugh v. Clarke, this was the only partnership property that remained. If we suppose every thing else connected with that partnership closed up, Clarke would be entitled to one moiety, Mrs. Colton to three-ninths of the other moiety, Ritzhugh to two-ninths, and each of the other two children to the same; and Ritzhugh would be a creditor of the firm to the amount of his decree. Ror this sum Clarke was liable, and Mr. Colton as his coexecutrix and surety, and indeed as his partner and assistant in all his acts, would be liable with and for him. Story Part. ch. 1, | 1 to 6; Collyer Part. ch. 1, $ 16 to 19, 44 to 50. The will directed that on the marriage of a daughter she was to have her share of both principal and profits ; and in 1837 Ritzhugh married one of them and demanded his wife’s interest, which was refused.
    Then how does Davis stand ? He is a purchaser with actual notice of the matters of the suit, the breach of his trust by Clarke, his waste of Colton’s estate, and his insolvency; and the will of Colton gave him notice of the trust. Burwell v. Mande-ville’s ex’or, 2 How. U. S. R. 560; Dowman v. Rust, 6 Rand. 557;
    *Rrost v. Beekman, 1 John. Ch. R. 288, 302; Murray v. Ballou, Id. 566.
    On the part of Davis there was an actual participation in the misapplication of the fund. The debt due 1o Ames at the dissolution of the partnership had been paid off, and yet he sets up another debt to the same parties subsequently contracted.
    
      It is admitted that in order to affect a pendente lite purchaser there must be a decree; not a decree for the thing'itself, but a decree which affects the title. In this case, however, it is not a question of implied notice, but of actual full information. Before he purchased he had the title examined, and knew how the property was held by Davis; the suit and its objects were all known to him; and he was obliged to know the mala tides of Clarke and his utter insolvency.
    
      
      Judgb Samuels died on the 5th day of January, and the vacancy occasioned by his death, was not filled until near the end of the May term.
    
    
      
      Partnerships — Partnership Realty — Nature of. — The principal case lays down the rule, that real estate may. in equity be converted out and out into personalty by the agreement of the partners, or the manner in which it is conveyed to them. It is also laid down that real estate bought with partnership effects for partnership purposes, though conveyed to the individual partners, is thereby converted into pers< malty. The principal case is cited and followed for the above proposition, in Cunningham v. Ward, 30 W. Va. 579, 5 S. E. Rep. 650. See discussion in 4 Va. Law Reg. 312, where the principal case is cited, The principal case leaves it as a Queers whether real estate purchased for partnership purposes with partnership funds is converted into personalty for any other purposes than paying the debts of the partnership and adjusting the accounts between the partners, but in Parrish v. Parrish. 88 Va. 529, 14 S. E. Rep. 325, and Deering v. Kerfoot, 89 Va. 491, 16 S. E. Rep. 671. It is held that the realty is so far considered as personalty that the widow of the deceased partner is not entitled to dower therein, but only to her distributive share. See, further on the subject of Conversion, Diggs v. Brown, 78 Va. 292; Pierce v. Trigg. 10 Leigh 406: Hardy v. Norfolk M’f’g Co., 80 Va. 104; Wheatley v. Calhoun, 12 Leigh 264, 37 Am. Dec. 654, and note: 2 Min. Inst. (4th Ed.) 139; Brooke v. Washington, 8 Gratt. 248, 56 Am. Dec. 142, and note; Hancock v. Talley. Va. Law J. 1881, p. 583. vol. 1, Va. Dec. p..
    
    
      
      Same -Conversion of Realty — Mow Conveyed.- — In Zane v. Sawtell, 11 W. Va. 50, the court said : “Real estate bought with partnership effects, for partnership purposes, is, though conveyed to the partners individually impressed with the character of personalty : yet such property is effectually conveyed by a deed executed by the partners describing it as real estate. Davis v. Christian, 15 Gratt. 15. I cannot see why the grantor might not convey land which he had thus impressed with the character of personalty by a deed describing it still as land. Such a deed ought not to be regarded as ineffectual because in it the grantor failed to recite that the laud had been previously impressed with the character of personalty. 1l was so expressly held in the case of Siter. Price & Co. v. McClanachan. 2 Gratt. 280." See also, Cunningham v. Ward. 30 W. Va. 579, 5 S. E. Rep. 650, citing the principal case.
    
    
      
       Executors — Power Given to Sell Property for Payment of Debts Generally — Rights of Purchasers. Where the executor has power to sell for the payment of debts generally, the purchaser is not bound to see to the application of the purchase money ; he has a right to presume in the absence of all direct or plain proof to the contrary that the executor is exercising his power fairly and faithfully, in conformity to his duty. For the above proposition the principal case is cited with approval in the following cases :Jones v. Clark, 25 Gratt. 642, and note; Brockenbrough v. Turner. 78 Va. 449; Woodwine v. Woodrum, 19 W. Va. 73, 77. See generally, mono-graphic note on “Executors and Administrators.”
    
    
      
       Pendente Lite Purchasers — Facts in Record at Time of Purchase-Effect.—in Stout v. Philippi M’f’g, etc., Co., 41 W. Va. 345, 23 S. E. Rep. 573. it was said : “Next, can fraud be imputed to the Douglasses? Likely not, as an actual, mental fraud in them ; but in law they are chargeable with fraud, because, "beingpen-dente lite purchasers, they are chargeable with everything alleged in the bill. Jflthe facts in the record tell a pendente lite purchaser that his vendor committed fraud, he becomes a party to the fraud. Davis v. Christian, 15 Gratt. 12, point 9. He has notice of facts disclosed by the record. Benn. Lis Pend. § 92 ; Arnold v. Casner, 22 W. Va. 414, point 7.”
    
   MONCURB, J.

Bet us first enquire, what interest the appellant Davis has in the tenement in controversy, regarding it as real estate, unaffected by any partnership, or by the power of sale contained in Josephus B. Colton’s will.

He is certainly entitled to the undivided moiety of Henry Clarke. He is also entitled to the interest of Abby Colton in the other moiety. By her will she empowered her executors to sell all her real estate and invest the proceeds of sale in other productive real estate, or in government stocks. The execution of this power devolved on Henry Clarke and William J. Clarke, her only qualified and acting executors. They duly executed the power by joining in the sale and conveyance to Davis. He was not bound to see to the application of the purchase money. If it was misapplied with his participation or knowledge, he might be liable, as for a fraud, to persons claiming under her will, but to no other person. So far as this case is concerned, Davis must be considered as entitled to her interest in the property. What was that ^interest? She was entitled under the will of J. B. Colton her husband to one-third or three-ninths of his moiety. And she became entitled, by the deaths of their three children in her lifetime, to four of the remaining six-ninths, as one of the heirs at law of said children, subject only to any interest of P. H. Pitzhughas tenant by the curtesy of his wife Hannah Maria’s two-ninths. Whether he had such a seizin of the said two-ninths during the coverture as to give him any such interest, it is needless to enquire. Abby Colton’s interest in the property, then, was seven-ninths of a moiety, subject only as aforesaid. And, in the view we are now taking of the case, Davis acquired by the sale and conveyance to him an absolute estate in the entire property, except two-ninths of a moiety, to which John J. Shuble and Elizabeth J. his wife were entitled in her right as collateral heir at law, ex parte paterna of Sarah Ann, the survivor of the said three children, who died under age; and except any interest of P. H. Pitzhugh as tenant by the curtesy of two other ninths as aforesaid. In that view of the case, the decree is certainly erroneous in directing a sale of the property, unless the appellant should pay the whole amount of the purchase money and interest into bank.

But let us now consider the case in connection with the partnership of Colton & Clarke, and the power of sale created by J. B. Colton’s will.

It is a general rule, that a partnership, whether of definite or indefinite continuance by the terms of its creation, is dissolved by the death of one of the partners. It may be continued longer by express agreement between the partners, or under the provisions of the will of the deceased partner, and with the consent of the surviving partner. In the latter case, however, the testator’s assets are not generally liable under all circumstances for the debts of the continued partnership.

*The case of Hankey v. Hammock, before Lord Kenyon, when master of the rolls, reported in a note to 3 Madd. R. 148, so far as it may be thought a decision to that effect, has been overruled by subsequent cases, and especially b3T Bord Eldon in Ex parte Garland, 10 Ves. R. 110. See also Ex parte Richardson, 3 Madd. R. 138, 157; Thompson v. Andrews, 1 Myl. & Keene 116, 6 Cond. Eng. Ch. R. 525; Pitkin v. Pitkin, 7 Conn. R. 307, and Burwell v. Mandeville’s ex’or, 2 How. U. S. R. 560. If the testator merely direct that the partnership be continued after his death, his responsibility will be limited to the funds already embarked in the trade. But he maj' extend his responsibility further, and make it cover his whole estate if he chooses to do so. It has been said, however, “that nothing but the most clear and unambiguous language, demonstrating in the most positive manner that the testator intends to make his general assets liable for all debts contracted in the continued trade after his death, and not merely to limit it to the funds embarked in that trade, would justify the court in arriving at such a conclusion, from the mainfest inconvenience thereof, and the utter impossibility of paying off the legacies bequeathed by the testator’s will, or distributing the residue of his estate, without in effect saying, at the same time, that the payments may all be recalled, if the trade should become unsuccessful or ruinous.’’ 2 How. U. S. R. 577.

In this case, the testator .plainly manifested his intention, not only that the partnership should be continued after his death, and his property alreadj' vested in the business remain so invested, but that all his real estate should be liable for all debts contracted in the business, and his executors should be fully authorized to'sell and convey the said estate, to enable the surviving partner to prosecute the said business to greater advantage, or to pay the said debts. The clauses of the *will which relate to the partnership, are the 1st, 4th, 5th, 6th and 7th, which are in these words: [the judge here read them].

By the 10th clause, he appointed his wife Abby Colton, and his brother in law and surviving partner Henry Clarke, his executors, and desired that no security should be required of them as such.

It will be observed that the reason ab in-convenienti, so forcibly assigned by Bord Bidón in Ex parte Garland, and by Judge Story in Burwell v. Mandeville’s executor, for not holding the general assets of a deceased partner liable for the debts of a partnership, continued under the provisions of his will, does not apply to this case; inasmuch as the estate was directed, to be kept together during the continuance of the partnership and no legatee could receive her portion of the estate without at the same time dissolving the partnership as to such portion, and exempting it from future liability.

The effect of the will was not to give to the executors a mere discretion to sell the real estate or not, at their pleasure, during the continuance of the partnership, but to create a trust; to subject the real estate to the risks of the business, and to give to creditors a right to look to it, if necessary, for the payment of their claims, whether during the continuance of the partnership or afterwards. The testator seems to have owned little or no personal estate which was not already embarked in the business, and intended that his whole real estate should be kept together to meet its wants and liabilities during its continuance; except that he gave to each child, on her marriage or coming of age, or at any time afterwards, a right to -withdraw her portion of the estate from the business, which was then to cease as to her, but continue as to the rest. He relied exclusively on the profits of the business during its continuance for the support of his ^family, and directed that at its close the proceeds thereof and all his estate real and personal should be divided in certain proportions between his wife and children. The first clause of the will creates a charge for payment of debts due by the concern at the death of the testator: The fourth, for payment of debts which might arise in continuing the business after his death. The same reason exists for the charge in the one case as in the other.

In pursuance of the provisions of J. B. Colton’s will, the business of the firm of Colton & Clarke was continued after his death, under the same name, by the surviving partner Clarke, with the consent of Abby Colton. According to those provisions, it was to be continued so long as he and she should desire and consent thereto. The parties differ as to the actual period of Us continuance. It must have been determined at the death of Abby Colton in May 1843, if not before. The appellant contends that it was not determined before, and it appears from Abby Colton’s will that she also was of that opinion. It is contended, on the other hand, that the partnership was determined at the end of 1834, w'hen the dry goods of the concern were sold out at auction. But the firm was engaged at Colton’s death, not only in the dry goods business, but also in an extensive agency for the sale of paper for D. & J. Ames of Massachusetts. That agency was part of the business which was authorized by Colton’s will to be continued after his death; and it was accordingly so continued until the death of Abby Colton. Until that event, therefore, the partnership was not determined.

There has been much contrariety and fluctuation of opinion upon the question, whether and to what extent real estate bought with partnership funds for partnership purposes, is thereby converted into personalty. It may now be considered as well settled *that real estate may, in equity, be converied out and out into personalty by the agreement of the partners or the manner in which it is conveyed to them. It may also be considered as well settled that real estate bought with partnership funds for partnership purposes is thereby, at least partially, converted into personalty, though it be conveyed to the partners in their individual names as joint tenants, and though there be no express agreement between them in regard to its conversion. It is converted into personalty to the extent that may be necessary for the purpose of paying the debts of the partnership and adjusting the accounts of the partners inter se. But whether converted to any further extent, or out and out, is a question which seems to be still unsettled and upon which there is much conflict of decision. It is well settled, however, that ever}' such conversion, whether express or implied, complete or partial, is equitable only, and the property can only be conveyed as real estate. “Each partner (as has been said) is required, both at law and in equity, to join in every conveyance of real estate, in order to pass the entirety thereof to the grantee; and if one partner only execute it, whether it be in his own name or in that of the firm, the deed will not, ordinarily, convey any more than his own share or interest therein.” This rule is “founded upon the nature of the property and the provisions of the common law applicable thereto.” Story on Part. § 94.

The tenement in controversy was bought by Colton & Clarke with partnership funds for partnership purposes, and was used for such purposes always after its purchase, until the termination of the business; though it was conveyed to them in their individual names. It was therefore in equity, at least partially, converted into personalty. But it could only be conveyed to a purchaser by a deed executed by them, or by those ^authorized by them to sell and convey the same as real estate. Whatever may have been the interest of Colton in the subject, by his will he authorized his executors to sell and convey that interest. He directed that all his property vested in the business of Col-ton & Clarke should remain under the control of Clarke for the purpose of continuing the business, and to be sold, disposed of and new pui'chases made in like manner as if he were in full life and the partnership were continued. And should it at any time, in the opinion of his executors, be deemed necessary by them to sell any or all of the real estate held jointly by him and Clarke, or by him individually, or jointly with any other person, to enable Clarice to prosecute to greater advantage the said business, or to pay the debts which might be due and owing from the same at any time during its continuance; he desired and fully authorized his executors to sell and convey the same in fee simple for that purpose. This power of sale and conveyance is certainly broad enough to cover his interest in the tenement in controversy. The testator, certainly, could not have intended to withhold from his executors the power to sell and convey his interest in the real estate of the partnership, while he conferred upon them full authority to sell his individual estate, for the purpose of paying the debts of the partnership. The power of sale and disposition conferred on the surviving partner, is referable to the goods embarked in the business. The power of sale and conveyance conferred on the executors, is referable to the real estate, as well of the partnership as of the testator individually; both of which are embraced by the literal terms of the will, and the former is at least as much within the true intent and meaning thereof as the latter.

The executors of J. B. Colton, then, were fully empowered by his will to sell and convey his real estate, '^including his interest in the tenement in controversy, for the purpose of paying the debts incurred in continuing the business of Col-ton & Clarke. This power did not 'cease at the death of Abby Colton, but then devolved on the surviving executor, Henry Clarke. It is laid down in Sug. on Pow. 144, as a principle of the common law, that where a power is given to “executors,” and the will does not point to a joint exercise of it, even a single surviving executor may execute it. The power being given to the executors ratione officii, as the office survives, so may the power. He says that where the power is given to them nominatim, although in the character of executors, it is at least doubtful whether it will survive. Hargrave has maintained that in that case also, as the office survives, by parity of reason, so should the power. And Sugden says, that the liberality of modern times will probably induce the courts to hold that the power survives in every case where it is given to executors. Id. 2 Wms. on Ex. 626. This view is confirmed by the act of assembly, 1 Rev. Code, ch. 104, § 52, which seems to regard a surviving executor as' being invested with the power-in every such' case. 3 Eom. Dig. 275 and ’6, marg. In this case the power is given to the executors, not nominatim, but by their official designation only, and clearly survived. That a discretion is given to the executors in regard to the exercise of the power, did not prevent it from surviving. See Brown v. Armistead, 6 Rand. 594.

At the time, therefore, of the sale and conveyance to the appellant of the tenement in controversy, Henry Clarke, as surviving executor of J. B. Colton, had authority to sell his testator’s interest therein for the purpose of paying the debts of the continued firm of Colton & Clarke. And the appellant maintains, that in fact the sale was made for that purpose, and the purchase money was applied accordingly. The evidence *seems to sustain this position, to the extent at least of the greater part of the purchase money.

The facts on this subject appear briefly to be these: Colton & Clarke owed a large debt to D. & J. Ames, the balance of which, on the 14th of April 1843, about the period of Abby Colton’s death, was eleven thousand eight hundred and fifty-seven dollars and sixty-five cents. It does not appear that there were any new dealings after her death between Henry Clarke and D. & J. Ames. Payments were made on account of this debt by Henry Clarke, from time to time, both before and after the death of Abby Colton. To obtain the means for making such payments, Henry Clarke exchanged the notes of Colton & Clarke with Davenport, Allen & Co. for their notes or drafts, which were discounted at bank. In this way Colton & Clarke became indebted to Davenport, Allen & Co. to the extent of ten thousand dollars; and to secure the debt a deed of trust was executed on the tenement in controversy; which, however, was not recorded, but was retained by Davenport, Allen & Co. until payment of the debt, and then returned to Henry Clarke. The balance due on account of that debt at the time of the sale of the tenement to the appellant, was seven thousand six or seven hundred dollars, and was discharged out of the purchase money; the appellant’s check therefor (to wit, nine thousand dollars; having been paid by Henry Clarke on account of Colton & Clarke to Davenport, Allen & Co. It thus appears that, to the extent of that balance at least, the sale was made for the payment of a debt for which the property was liable, and the purchase 'money was duly applied. And though it does not appear that the residue of the purchase money was required for the payment of debts of the concern, yet the purchaser was not bound to see that onlj so much of the estate was sold as was necessary for the purposes of the trust. Sug. Vend. 835-6.

*But for whatever purpose the sale may have been made, or however the money may have been applied, the purchaser cannot be affected, if he acted bona fide. He was not to judge, at his peril, as to the necessity for a sale. He had no means of ascertaining such necessity. That question was properly referred by the testator to the opinion of his executors, who had the means of deciding it. Eor the correctness of that opinion, strangers who might become purchasers were not held by him responsible. To have so held them, would have defeated his purpose of having his real estate sold to advantage, if a sale of it should become necessary. Where a trust is for payment of debts generally, as in this case, a purchaser is not bound to see to the application of the purchase money; for he cannot be expected to see to the due observance of a trust so unlimited and undefined. Sag. Vend. 835, 838; Elliot v. Merryman, and the notes thereto, 1 Leading Ca. in Eq. 40, 65 Law Lib. 58.

The only ground, then, upon which, if any, the title of the purchaser can be affected in this case is, that he did not act bona fide ; but participated in a fraudulent breach of trust committed by Henry Clarke, either in the sale of the property or the application of the purchase money. The appellant in his answer does not admit that any such breach of trust vas committed; but if so, denies that Lie had any participation therein, or knowledge thereof. If the sale veas made to pay a debt of Colton & Clarke, and the purchase money was so applied, then there was no such breach of trust. But let it be conceded, for the purposes of this case, that a breach of trust existed; that the sale was improper, and the purchase money misapplied. And then the question is, Did the purchaser Davis participate in the breach of trust? If he did, it is only because he had notice of it at the -time he made the purchase or paid the purchase money. Had he such notice?

"It is contended that he had; first, because the pendency of the suit of Fitzhugh v. Clarke was equivalent to notice, according to the doctrine of lis pen-dens ; secondly, because he or his counsel actually read the record in that case, and was thus informed of the alleged breach of trust; and thirdly, because the other circumstances of the case, which were or ought to have been known to Davis when he made the purchase, were sufficient to show that Clarke was committing a breach of trust.

As to the doctrine of lis pendens, I do not think it can have any application to the case. If the suit of Fitzhugh v. Clarke be such a suit for specific property as the doctrine requires, there has yet been no decree in it for such property. A purchaser pending a suit for specific property from a defendant to the suit, takes the properly subject to any decree which may be rendered for or against it in the suit. And there is generally no necessity for making him a defendant; but the plaintiff, after obtaining his decree, may enforce it against the property in the hands of the purchaser or his assigns. Unless and until such decree be rendered in the suit, the purchaser is unaffected by the doctrine of lis pendens.

But it is immaterial whether the doctrine applies to the case or not, as I think it sufficiently appears from the pleadings and the proofs that the appellant had actual notice of the suit when he made the purchase, and is chargeable with knowledge of ;ill the facts of which the record in the suit, as it existed at that time, would have informed him. So that if it appeared from the facts of which he was thus informed, that the sale was fraudulent on the part of Henry Clarke, then, by making the purchase with such knowledge, he became a party to the fraud. And now the question arises, What information did the record afford, as it then existed ?

*The purchase was made in ffebru-ary 1846. It does not appear when the bills, original or amended, were filed in the suit or Fitzhugh v. Clarke. We have but a meagre skeleton of the record of that suit embodied in the record of this. It appears that the original bill was filed between the 13th of July 1839, the day of the death of the child of JB'itzhugh and wife, and the 25{h of December 1839, the day of the wife’s dealh; as she was a plaintiff in the suit, and the death of the child is mentioned in the bill. If so, the suit must have been negligently prosecuted; for the answers of Henry Clarke and Abby Colton to that bill were not filed before the 2d of January 1843, when they appear to have been sworn to— more than three years after the filing of the bill. Afterwards, and after Abby Col-ton and all her children had died, an amended bill was filed, to which Henry Clarke filed an answer, which ivas sworn to on the 12th of June 1844. An order of account was afterwards made in the suit, but at what precise time docs not appear. It is not copied in the record, and we can only infer what it was from the report of the commissioner. That report bears date on the 30th of May 1850 — more than four years after the said purchase; and shows thal the execiition of the order of account was not commenced until the 23d of October 1846 (the date of the commissioner’s notice to the parties), which was eight months after the purchase. In determining, therefore, what information the purchaser could have derived from the record of that suit, we must throw out of view the commissioner’s report and the accounts returned therewith, and look only to the bills and answers. What facts did they disclose?

Dor some time after the intermarriage of ffilzhugh and wife, on the 25th of October 1837, he seems to have acquiesced in the continuance of the partnership. But shortly before his wife’s death on the 25th of December "1839, he brought the suit of Fitzbugh v. Clarke, for the purpose of obtaining her proportion of the estate of J. B. Colton, under the 6th clause of the will. That was the only object of the suit. The 6th clause does not provide for a termination of the business when any child should require-her part; but only that the business should cease as to such child, and be continued as to the rest. The bill, while it requires the plaintiff’s part of the estate, is perfectly consistent with a continuance of the business as to the rest. It charges that Ditzhugh had made repeated applications to Clarke to have his portion of the estate delivered to him, “wishing to have the means of advancing himself in business.” But it makes no complaint of any waste of the estate or mismanagement of the business by Clarke, and asks for no injunction nor for the appointment of a receiver. It does not prelend that there had ever been any cessation of the business by a public sale of the stock of dry goods, or otherwise; but on the contrary, admits that the partnership had continued until the institution of the suit, and was still in existence, and prays for an account of its continuance down to that time. It mentions the tenement in controversy as part of the real state of Colton & Clarke, and states that their business was that of dry goods merchants, and was prosperous, and that a large amount of money appeared by the books to have been due to them at Colton’s death. The answer of Clarke to the original bill admits that the business of the firm was principally that of dry goods merchants, and was prosperous, but to what extent, could only be ascertained by a fair settlement of accounts, &c.; and that under the powers given in the will and with the consent of Abby Colton, he had continued and still continued to conduct the business of the copartnership for the joint benefit of himself and the estate of J. B. Colton. It states that he had, *in all respects, honestly and faithfully endeavored to comply with the wishes of his testator, as expressed in his will, and was ready to submit the books of the concern, which had always been kept with the utmost exactness, to the examination of any commissioner who might be appointed for the purpose, &c. ; that in conducting the business of Colton & Clarke, he had deemed it most prudent for the last four or five years to restrict that business, and in part to invest the debts and money in stocks of various descriptions; that in one instance he purchased for the concern a piece of property opposite Rocketts, called the Coalyard island, which, with the improvements thereon, cost ten thousand and fifty-five dollars; and that these stocks and real property, as well as all the other property of the concern, in consequence of the universal depression existing at the time, would, if forced into market, produce heavy and irreparable loss, which would fall, one-half on the respondent, and the other half on the estate of his testator. Abby Colton, in her answer, states, that she had taken no active part in the management of her testator’s estate, having left it to the care and judgment of Clarke her co-executor, in whom she always had, and still continued to have the most perfect confidence; and that the business of Colton & Clarke had been, and s-till was continued, with her consent. The amended bill was filed mainly with the view of reviving the suit against the proper parties after the death of Mrs. Colton and her daughters. It takes the ground (no doubt in consequence of the death of Ritzhugh’s wife, whereby he had become entitled to her personal estate absolutely, and to her real estate, at most only, for life), that a valuable portion of the real estate, including the tenement in controversy, had been paid for with partnership funds, and bought and always used for partnership purposes; and, if it is to be regarded as personal property, claims ’^his wife’s portion "thereof as her administrator. It makes no complaint of waste of the assets, or mismanagement of the business of the con-1 cern, any more than did the original bill; but charges that all the estate of J. B. Col-ton ever since his death had been and still was in Clarke’s possession under the trusts of Colton’s will. Clarke in his answer to the amended bill admits that a part of the real estate, including the tenement in controversy, had been paid for with partnership funds, and bought and used for partnership purposes, but insists that as to the complainant, it should be regarded as real and not as personal estate. He says he is advised that the complainant, never having, during- the coverture, reduced into possession any portion of the real estate to which his late wife may ultimately have been entitled, had no claim as tenant by the curtesy to such portion; and as regards the personal estate proper, he charges that complainant had already been paid his wife’s full share thereof.

I have thus stated, in substance, all the material facts disclosed by the record of the suit of Fitzhugh v. Clarke, as it existed at the time of the appellant’s purchase; and I certainly see nothing in them to inform him that the sale was unnecessary or improper, in discharge of the trust created by Colton’s will, or was fraudulently made for the private purposes of Clarke. If there had been any waste or mismanagement of the estate of Colton, or of the assets of Colton & Clarke, or any well grounded apprehension thereof, the complainant, on showing the fact, might have obtained an injunction and had a receiver appointed. But there was no allegation of any such fact; and, so far as appeared from the record, it was not only the right but the duty of Clarke to continue to execute the trusts of Colton’s will, by selling his real estate whenever deemed necessary by him for the payment of the debts of Colton & Clarke. Green v. Slayter, *4 John. Ch. R. 38. It was neither the object nor the effect of that suit to take the execution of the trust out of the hands of the trustee and transfer it to the court.

Then, was there any thing in the other circumstances of the case, of which Davis had or ought to have had any knowledge at the time of his purchase, to inform him of any fraud or breach'of trust on the part of Clarke?

The evidence of notice ought certainly to be very strong to convict a purchaser of a fraudulent participation in a breach of trust in such a case. Confidence being placed in the trustee “by the person who had the sole right to dispose of the property at his will (as was said by Marshall, C. J., in Garnett v. Macon, &c., 2 Brock. R. 185, 231), no other can question the correctness of his proceeding, or can be justifiable in suspecting any intention to violate the trust. He has no right to suspect that the person who has been selected by the testator for its execution, will violate the trust reposed in him, and no collusion between him and the trustee ought to be implied from equivocal acts.” “If the executor sells to a person who knows that there are no debts, or that all the debts are paid, and that the sale is not a fair execution of the trust, the purchaser may take the property subject to the trust. 2 P. Wms. R. 148, 150. So too, if the executor sells at such undervalue as to indicate fraud, or for payment of his own debt. Crane v. Drake, 2 Vern. R. 616; Scott v. Tyler, 2 Bro. C. C. 430, 477; Andrew v. Wrigley, 4 Id. 125, 130; Hill v. Simpson, 7 Ves. R. 152, 167; Lowther v. Lowther, 13 Id. 95; McLeod v. Drummond, 17 Id. 153, 169. These cases proceed upon the principle that the executor does not sell in pursuance of his trust, but in violation of it, and that the purchaser knowing this fact, aids him in its execution, by making tlie contract. The purchaser is not bound to make '"any enquiry. The general power of the executor to sell protects him in buying; but if he buys with notice that the sale is a breach of trust, the property remains chargeable with it. ’ ’ Id. 238. Field v. Schieffelin, 7 John. Ch. R. 150, wTas the case of a sale by a guardian, of bond and mortgage belonging to his ward before the principal money had become payable. The purchaser was held not to be chargeable. This is a strong case, as it is “not in the ordinary course of the guardian’s administration to sell the personal property of his ward.” Id. 154. “The necessity or expediency of the measure (said Chancellor Kent) rested entirely in the judgment and discretion of the guardian. He was, as between him and the purchaser, the proper and exclusive judge of that expediency. It was not the duty or the business of the purchaser to enquire into the necessity of the assignment, or to see to the application of the purchase money. He had a right to presume, in the absence of all direct and plain proof to the contrary, that the guardian was exercising his power fairly and faithfully, in conformity with his duty. ” “There is no direct or positive evidence that the guardian has in truth misapplied or wasted the infant’s money. It might be inferred from the acknowledged fact of his insolvency, and from the silence of the case; but when it becomes necessary, not only to establish the fact of breach of trust, but of a participation of the plaintiff in the fraud, we ought to have something more decisive than a presumption resting- on such a basis. It is very possible, and consistent with every established fact in the case, that the money received by the guardian from the plaintiff, was duly invested in other property, in the name and for the benefit of the infant, and was left untouched amidst the waste and destruction of his own property. But if the presumption of a devastavit is to be admitted, there is no evidence that the guardian *had any abuse of trust in contemplation when he made the assignment; or, if such were his intention at the time, there is no certain and sufficient proof that the plaintiff knew or had information of that intention, or of any purpose or design in the guardian inconsistent with his duty. The proof on the part of the infant is too lame and scanty to justify the conclusion of any breach of trust in the guardian, in which the plaintiff knowingly partook.” Id. 153. Seealso, Dodson v. Simpson, 2 Rand. 294, in which the doctrine on this subject is clearly slated by Judge Green; also McLeod v. Drummond, decided first at the Rolls by Sir William Grant, 14 Ves. R. 352; and afterwards, on appeal, by Lord Eldon, 17 Id. 153; and other cases cited in the notes to Llliot v. Merryman, supra.

I am aware of no case which appears to be inconsistent with the doctrine as laid down by Chief Justice Marshall and Chancellor Kent, in the cases cited from 2 Brock, and 7 John. Ch. R. In Hill v. Simpson, 7 Ves. R. 152, the assignees of an executor were held liable on the ground of constructive fraud — in taking an assignment when, if they had examined the will, they would have seen that the executor was guilty of a breach of trust. In deciding the case, Sir William Grant said, “Ido not impute to them direct fraud: but they acted rashly, incautiously, and without the common attention used in the ordinary course of business. It was gross negligence not to look at the will, under which alone a title could be given to them. It was not necessary to use any exertion to obtain information, but merely not to shut their eyes against the information which, without extraordinary neglect the}7 could not avoid receiving.” This decision rests on a familiar principle --see Sug. Vend. 1056, pl. 63. Graff v. Castleman, 5 Rand. 195, in which the authorities on the subject were reviewed very much at length by Judge Carr, was decided on the same principlewhich ^governed the case of Hill v. Simpson. An executor and trustee assigned a portion of the trust subject as a security for his own debt. The assignment referred to a deed of trust, which referred to the original deed, which referred to the will, where the whole trust was declared. The assignee was held, therefore, to have notice of the trust and of the breach of it, and to be. a party to such breach.

In Jackson v. Updegraffe, 1 Rob. R. 107, the evidence clearly brought the case within the well settled principle there laid down, .that parties dealing -with an executor or trustee and co-operating with him in the misapplication of assets or trust funds, in violation of the duties of the executor, or in breach of the trust, cannot use such transactions as a defence agai nst the claim of creditors, legatees or cestuis que trust. Id. 120. In Pinckard v. Woods, 8 Gratt. 140, bonds due to a decedent’s estate, and payable to his administrator as such, were sold by him ata discount of eighteen or twenty per cent, to a person who knew that the condition of the estate did not require the sale. The purchaser was held accountable; and properly so.

Now, let us apply the doctrine thus settled to the facts of this case. The sale was made, as we have seen, in February 1846, less than three years after the termination ■of the partnership by the' death of Abby Colton. It was made by one who had full power to make it for the payment of the debts of the partnership. It was made, apparently, at least, for the pa3unent of a debt of the partnership, secured by a deed of trust on the propertj’’, and the purchase money, or most of it, was accordingly applied to the payment of that debt. If that was not really a debt of the partnership, there is certainly no evidence in the record tending to prove that the purchaser knew the fact or had any rea'son to be-Heve it; but the contrary. He *gave full value for the property, paid the purchase money in cash, and derived no benefit from its application. It was not the duty or business of the purchaser to enquire into the necessity or expediency of the sale, or to see to the application of the purchase money. He had a right to presume, in the absence of all direct or plain proof to the contrary, that the executor was exercising his power fairly and faithfully, in conform-itj’- with his duty. He had no right, it is 'true, to shut his eyes against information which, without extraordinary neglect, he could not avoid receiving. But where is the evidence that he did so? Where is the direct or plain proof, even that the executor committed a breach of trust in the sale of the property or the application of the proceeds, much less that the purchaser participated therein? Is it to be found in the facts that the executor engaged in various speculations on his4 own account, and involved the funds of the partnership therein ; that in 1842 or 1843 he became so much embarrassed that it was generally known about Richmond; and that he ultimately (though at what time does not appear) took the oath of insolvency? Non constat that the appellant was informed of any of these facts when he made the purchase. But suppose he was informed of them; do they afford that direct or plain proof of fraud which is required in such cases? The fraud of the executor, if any, did not consist in his embarrassment and insolvency, but in the conversion of the property or its proceeds from the purposes of the trust to the individual uses of the executor. A knowledge by the appellant at the time of his purchase that such a fraudulent conversion was in-, tended, would have implicated him in the fraud: but not a knowledge that the executor was engaged in hazardous speculations on his own account, or was embarrassed or insolvent. An embarrassed or even an *in solvent man may be appointed an executor, and a grant to him of probate of the will cannot be refused on account of his poverty or insolvency. 1 Williams Ex’ors 119.

Insolvency of an executor happening after his appointment, is not, ipso facto, a vacation of his office nor a suspension of his powers: though it may be one among other reasons for a revocation or suspension of them by a court of competent jurisdiction. Until thus revoked or suspended, they may lawfully and properly be exercised and pass a good title to a bona fide purchaser.

But it is said that the appellant required and received an indemnifying bond; and that this fact shows that he knew he was acquiring a defective title, and, in connection with the other circumstances, is sufficient evidence of fraud on his part. I do not think so. I think it only serves to show his abundant caution. He was about to pay a large sum of money for the tenement in question, and to erect very costly improvements upon it; and prudence required that he should obtain all the security he could against any possible defect of title. He accordingly obtained a deed for the property, executed not only bj'Henry Clarke in his own right and as surviving executor of J. B. Colton, but also by him as surviving partner of Colton & Clarke, and by him and William J. Clarke as executors of Abby Colton. And to guard against the claim of Eitzhugh and of Shuble and wife, he obtained the indemnifying bond in question. He certainly did not intend to admit their claim by taking the bond, and this act of abundant caution on his part should not operate to his prejudice. It shows that he had heard of such claim, which fact indeed he expressly admits in his answer. But he had doubtless only heard of it as it appeared in the suit of Eitzhugh *v. Clarke; and the nature of the claim asserted in that suit I have already^ sufficiently considered. In this feature of the case it is very much like that of Johnson v. Kennett, 3 Myl. & Keen 624, 10 Cond. Eng. Ch. R. 332. A testator had charged his real estate with the payment of his debts and legacies. His only sou and heir at law, who was his executor, paid the debts out of the personal estate, and sold the real in lots to different purchasers, to whom he gave bonds of indemnity, some of which were conditioned for indemnifying the obli-gees against the legacies specially, and others were general bonds of indemnity. The suit was brought by the legatees against the executor and purchasers, &c. It was held by Eord Eyndhurst, that where an estate is charged generally with the payment of debts and legacies, and the debts have been paid but not the legacies, the purchaser will not be bound to see to the application of the purchase money, unless it be proved that he knew of the payment of the debts; and that the taking of the said bonds of indemnity did not raise the inference that the purchasers or any of them knew of such pa37ment in that case.

I am therefore of opinion that the appellant acquired a good title to the tenement in controversy by the deed under which he claims. The property belonged to Colton & Clarke. The execution of the deed by Clarke and wife had the effect of conveying his interest; and its execution by him as surviving executor of Colton, had the effect of conveying the interest of the latter. If any thing else were necessary to confirm the title of the purchaser, it would be found in the execution of the deed by Clarke as surviving partner of Colton & Clarke, and by the executorvS of Abby Colton. The result of my opinion is that the decree be reversed with costs, and the bill dismissed as to the appellant with costs; but without ^'prejudice to any relief to which the appellee Christian may be entitled against any party other than the appellant.

AI/E-DN, P., and DDE), J., concurred in the opinion of Moncure, J.

DANIDD, J., divssented.

Decree reversed.  