
    Edgar v. Donnally and Jones.
    Saturday, September 21st, 1811.
    a. Partnership — Purchase of Realty with Partnership Fund — Effect on Purchaser with Notice. — Prior to the act of 1786, concerning- partitions and joint rights and obligations, two men, who were partners in a drove of cattle, applied part thereof to a joint purchase of a settlement right to land; and one of them died; the survivor had the land surveyed by virtue of a land office treasury warrant. and sold it to a third person, who, having notice of the partnership right, obtained a grant of the whole from the commonwealth; a purchaser from the heir of the deceased partner was, nevertheless, entitled, in equity, to his share of the land.
    2. Same — Same—Suit in Chancery — Parties.—In such case, the surviving partner, and the purchaser from him, being defendants to the bill, the heir of the deceased partner is not a necessary party; a deed from him. conveying all his right to the plaintiff, being produced.
    3. Chancery Practice -Assigned Bond — Answer—Effect as Evidence. — If the plaintiff in equity call upon the defendant, as assignee of a bond, to say whether he had notice of the consideration thereof,whenhereceived themoneydue thereon; and, in his answer, he say, that he had no such notice when he took the assignment, the answer is not to be considered as admitting notice at the time of receiving the money.
    See Dangerfield v. Claiborne, S H. & M. 17, and Page’s Executor v. Winston’s Administrator, ante, p. 298.
    Thomas Edgar, of the county of Green-brier, brought a suit, in the late high court of chancery, (which was afterwards transferred to the Staunton district,) against Andrew Donnally and John Jones, to recover a moiety of a tract of land in Ken-háwa county, the right to which he claimed as assignee of John Matthews, son *and heir of Archer -Matthews, deceased; setting forth in his bill thát Andrew Donnally and Archer Matthews, some time previous to the year 1778, brought a settlement right to the said land of a certain John Pryor, and obtained the proper certificate, from the commissioners for the district of Montgomery and Washington, in the year 1782; that separate advances were made by them for the said right, and it was agreed and understood that they should hold separate interests; hut, the right to the land not being complete, no division could be made; that, in the year 1786, the said Matthews died, and the plaintiff, by purchase from his heir at law, became vested with his right; but that Donnally had since sold to Jones the whole of the said tract of land, without accounting to the plaintiff for any part of the purchase money, or asking his consent to the sale; and that Jones knew, at the time of his purchase, that Donnally was not entitled, in equity, to more than one half of the said land. The plaintiff, therefore, prayed a decree for partition of the land against Jones; and an account of profits against Donnally.
    The answer of Donnally denied the partnership between Matthews and himself; averring that he separately bought Pryor’s settlement right for his own benefit; (but admitting that he agreed to sell to Matthews one half, upon his paying the purchase money, which Matthews never did pay;) that he afterwards had the land surveyed by virtue of a land office treasury warrant, which survey he sold and assigned to Jones, to whom a grant was issued.
    The defendant Jones, in his answer, said that, at the time he made the purchase, “he- had no certain knowledge of any partnership between Donnally and Matthews in the right to said land.”
    It appeared, from exhibits in the- cause, that the certificate of the commissioners for the land in question (dated September 11, 1781) was to Andrew Donnally and * Archer Matthews; that a survey was made on their behalf, the 3d of May, 1785; that another survey of the same land was made for Donnally, March 20, 1791; assigned by him. to John Jones, May 5, 1791; to whom the grant was issued on the 21st of March, 1792; and that, on the 24th of March, 1798, John Matthews, son and heir at law of Archer Matthews, deceased, conveyed, by deed, “for and in consideration of five shillings,” all his right and title.in the said land to the plaintiff.
    The depositions clearly prove that Jones knew of the title of Matthews, at the time of his purchase of Donnally; that Matthews and Donnally were partners in a drove of cattle; and that part of the cattle were paid to Pryor for his settlement right.
    On the 1st of March, 1803, the defendant Jones filed a cross bill against Edgar, stating that, at the time of his purchase of the land, he executed sundry bonds to Donnally for the purchase-money, payable at different times ; that one of those bonds was assigned by Donnally to Edgar ; that, at the time of such assignment, the said Edgar was executor, or administrator, of the estate of Archer Matthews, and guardian of John Matthews, his infant son ; was acquainted with the claim of the said Matthews to the said tract of land, and knew, or believed, that the same would be prosecuted ; that Edgar also knew that the bond, which had been assigned to him by Donnally, was for part of the purchase-money of said tract of land ; yet he requested and received payment iff the amount, without giving notice to Jones that any claim was about to be set up. The cross bill, therefore, called upon him to answer and say whether, at the time of his receiving the amount of the said bond, he did not know that the same was given in payment for the land in question?
    The answer of Edgar, to this bill, averred, that, at the time he took from Donnally the assignment of Jones’s bond, he knew not the consideration of said bond, and *had no idea that the land in question was the consideration thereof.
    No exception was taken to this answer as insufficient; and no testimony was exhibited in support of the cross bill.
    The causes came on to be heard the 1st of December, 1804 ; when Chancellor Brown (without deciding upon the plaintiff Edgar’s right, as it appeared in the original cause) dismissed the original bill with costs, and decreed that Edgar should pay the costs of the cross suit; “It appearing to the court, from the allegations in the cross bill, not denied by the answer, that the defendant Edgar, knowing of the claim of his ward to the land in controversy, and that that claim would be prosecuted, took an assignment on one of the bonds given by Jones for the purchase-money, the payment of which he pressed and received, knowing at the time of receiving payment the consideration for which it was given, and not disclosing the claim of his ward, which he has since purchased for five shillings, and which the original bill is brought to recover.”
    To this decree a writ of supersedeas was awarded by a judge of this court.
    Wickham, for the plaintiff in error.
    Peyton Randolph, for the defendants.
    On the part of the defendants, it was contended, that John Matthews, under whom Edgar, the plaintiff, claimed, ought to have been a party to the suit; and Hoover v. Donnally, 3 H. & M. 316, was relied upon, as a case in point. Edgar was guardian of Matthews and bought the property of his ward for five shillings! Ought not the ward to have been a party, for the purpose of showing, if he could, that the purchase made by his guardian was ^fraudulent, or that his right had not, in fact, been relinquished ?
    On the other side, the position in the first marginal note to the case of Hoover v. Donnally was denied to be law, in the general terms there made use of ; being contrary to the whole current of authorities. Where a derivative purchaser sues for a title, the first purchaser need not be a party, if he has parted with all his right. The only case, in which it is necessary to make him a party, is where the equitable or legal title remains in him. Mr. Call’s yielding the point, in that case, (3 H. & M. 319, in the note,) proceeded from a misapprehension of the law. The case of Hobart v. Abbott, 2 P. Wms. 643, only shows that, where the assignee, in part, of a mortgage brings a bill to foreclose, the original mortgagee must be a party. ■ But a mortgagee, who has parted with the whole of his interest, need not be a party.
    In the present case, Matthews had, originally, nothing but an equity ; and, by his deed to Edgar, parted with the whole of that. No decree could be rendered against him ; therefore, it would have been improper to have made him a party.
    Monday, September 30th. Judge Brooke mentioned a point which had not yet been argued. It appeared that Matthews and Donnally had purchased the settlement right jointly ; and, as Matthews died in 1786, before our act of assembly concerning joint rights and obligations took effect, it might be a question whether Donnally was not entitled to the whole, as survivor?
    Wickham. I am prepared with authorities to show that courts of equity lean against the doctrine of the right of survivorship, in all cases of purchases in partnership,  Donnally and Matthews were partners in a drove of cattle, and out of that property payment was *made to Pryor for the land. This made the land partnership property, and, therefore, not a joint tenancy, but an estate in common ; the survivor being, in equity, a trustee for the representative of the deceased partner.
    Peyton Randolph, contra.
    The testimony proves a partnership in cattle, but not in the land. Two partners may purchase lands jointly ; and it will be considered a joint tenancy, unless it appear that the purchase was in the way of trade, and contemplated by them to be held as partnership property ;  or unless their advances of money were unequal. But there is nothing in this record to countenance the idea of unequal advances for the land. After the drove of cattle was sold, the partnership was concluded, and the subsequent application of the money to the purchase of land was a different transaction.
    Wickham. Whenever a partnership subject is converted into land, it partakes of the nature of the partnership, whether it related to a single transaction, or to a series of transactions.
    
      
       Partnership — Purchase of Realty with Partnership Funds — Conveyance to One Partner — Effect. — See principal case cited in Hancock v. Talley, 1 Va. Dec. 442; foot-note to Brooke v. Washington, 8 Gratt. 248, quoting from Hancock v. Talley, 1 Va. Dec. 442. See principal case cited in Pierce v. Trigg, 10 Leigh 425.
      See generally, monographic note on “Partnership" appended to Scott v. Trent, 1 Wash. 77.
    
    
      
       Chancery Practice — Answer - Effect as Evidence.— On this point, the principal case is cited in Richardson v. Donehoo, 16 W. Va. 706.
      See further, on the subject, monographic note on “Answers in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571.
    
    
      
       Hawes v. Hawes, 3 Atk. 524; Lake v. Craddock, 3 P. Wms. 158, and Sugden, 407.
    
    
      
       Sug-den, 406.
    
   Thursday, October 3d.

JUDGE BROOJCE

pronounced the opinion of the court, consisting of himself and Judges Cabell and Coalter.

“Not deciding what would be the effect of an admission, by the appellant, that he had notice of the consideration of the bond of John Jones, one of the appellees, at the time he received the money due thereon ; the court is of opinion that such notice is not admitted by the answer of the appellant to the cross bill, as seems to have been relied on by the chancellor. And the court is further of opinion, that the right of the appellant to one moiety of the land, surveyed by virtue of the certificate of settlement right, alleged in the bill of the appellant *to have been purchased in partnership, by Andrew Donnally and Archer Matthews of John Pryor, is well proved ; that it sufficiently appears that the appellee, John Jones, had notice of the title of Archer Matthews, and of the fraud prac-tised by Andrew Donnally, at the time he purchased ; and that the said decree is erroneous ; therefore it is decreed and ordered that the same be reversed, &c. ; that the cross bill of the appellee, John Jones, be dismissed ; that the said appellee pay to' the appellant his costs by him expended about his defence of that suit in the said court of chancery; and that the said appellee, Jones, deliver possession of one moiety of the one hundred and fifty-two acres of land surveyed by virtue of the certificate of settlement before mentioned, according to quality and quantity, to be ascertained by commissioners to be appointed by the court of chancery ; and also execute a good and sufficient deed for the land, with special warranty, to the appellant; and that an account of improvements and profits be taken, if required by either party. And it is ordered that the first suit be remanded to the said court of chancery, to be further proceeded in according to the foregoing opinion and decree.”  