
    Pierce’s Adm’r &c. v. Trigg’s Heirs.
    July, 1839,
    Lewisburg.
    (Absent Stanard and Brooke, J.)
    Chancery Jurisdiction — Sale of Infant’s Land. — The question, whether there exists in the courts of chancery of Virginia, in any other cases than those in which the statute gives it, power to decree the sale of infant’s real estate upon the ground that it will be for his advantage, examined by Tucker. P.
    Partnership — Real Estate — When Partnership Property —Rights of Surviving Partner.  — Where land is purchased by two partners for partnership purposes with partnership funds, and is used as a part of the stock in trade) a court of equity deems such land partnership property ; and though, if the conveyance has been made to both partners, there will, upon the death of one, pass to his heirs a legal title, yet the whole beneficial interest devolved upon the survivor, and he may sue the heirs, compel a sale, and dispose of the proceeds as he would dispose of the personal estate of thefirm. So held by Tucker, P., and Cábele. J.,— dissen tiente Parker, J.
    
      Chancery Practice — Partnership Land — Decree for Sale Binding on Infant — Heirs of Deceased Partner. —A bill by a surviving partner against the heirs of a deceased partner, seeks a sale of lands purchased by the two partners, upon the ground that such sale will be for the benefit of all interested in the property ; and a decree is accordingly made for the sale, reserving liberty to the heirs, who are infants, to shew cause against it within a certain time after they come of age. After the sale has been made and confirmed, and the purchasers under the decree have sold again, the infants attain full age, come forward within-the time limited, and shew cause by an answer to the first bill, and by a cross bill. The fact that the land was originally purchased for partnership purposes with partnership funds, though not the ground of the original decree, and not sufficiently ^appearing at that time, is now clearly ascertained from the bill, answers and cross bill. Held, that as this fact, if it had appeared to the court which made the decree of sale, would have been sufficient to authorize that decree, the same ought not now to be set aside. By Tucker, P., and Cabell, J., — dissentiente Parker, J.
    Same — Sam'e—Same.—'Upon a bill by a surviving partner against the infant heirs of a deceased partner, for the sale of partnership land, a decree for the sale being made, after the infants come of age they shew for cause against the decree, that the surviving partner was largely indebted to the firm. Per Tucker, P., — the fact does not appear, and if it had appeared at the date of the decree, it could not have arrested the sale, but would only have arrested the funds.
    Same — Judicial Sale — Protection of Purchaser without Notice — Case at Bar. — A sale being made under a decree, the deed from the commissioner to the purchaser recites the decree, and the cause in which it was made, and also the fact of the purchase money not being payable at the time of making the deed. The proceedings in that cause shew, that when the court confirmed the sale by the commissioner, it directed the bond to be filed subject to the future order of the court, but instead of retaining the title to the land until the purchase money should be paid, it directed the commissioner to convey the land to the purchaser. The proceedings do not shew that any order was ever made by the court for delivering up the bond ; but the fact appears to be that the clerk, without such order, delivered it up, on a receipt being filed for the amount thereof. This receipt was given by a person in his own right, as to part, and in right of certain infants for whom he was guardian, as to the residue. When the infants come of age, their guardian and his sureties are insolvent. The infants allege that though the receipt was given, no money was in fact paid, and for their proportion of the purchase money they seek to charge the property in the hands of a defendant who obtained title from the person to whom the commissioner conveyed the property. The defendant claims to be a purchaser for valuable consideration without notice ; and there is no proof that if the money had not been paid, the defendant knew that fact when he purchased. Held by two judges, that the defendant is not responsible for the purchase money.
    Same — Partnership Land — Sale Subject to Incum brances^ — node of Relief — Case at Bar. — A sale being made, nnder a decree, of partnership lands, the title to a moiety whereof was in the infant children of the deceased partner, they, upon .coming of age, under the liberty reserved to them, shew canse against the decree, and seek to set the sale aside. This the court refuses to do. But inasmuch as the sale was made subject to the claims to dower of one widow who had no title thereto, and of another who does not appear ever to have ^asserted a title, and as thereby the property may have been sold for less than it would have brought if sold free of incumbrances, Held that proceedings should be instituted to ascertain the trae value of the property at the date of the sale, if the same had been sold free of all incum-brances, on the credit allowed by the decree; and that one half the excess, if any, over and above the price for which it was then sold, be decreed to be paid into court to the credit of the personal representative of the deceased partner, and if not paid by a short day, that it be made chargeable upon the property.
    
      On the 17th of October 1814, Ifilburn Henderson filed a bill in the superior court of chancery holden at Wythe courthouse, setting forth, that in the lifetime of William Trigg, a mercantile partnership existed between the complainant and him, which continued until his death. That during their said partnership, they purchased a lot, with the buildings thereon, on the main street in the town of Abing-don, and two back lots in said town. That the said lots were conveyed to them'jointly, and occupied by them for some time. That Trigg died without having dissolved the copartnership, or made any arrangement for a division of the property. That the property is of such a nature, and so situated, that it cannot be divided, nor can it be rented for a sum by any means adequate to its value; that it is daily decaying, and fast going to ruin; that large repairs are necessary to be made, to preserve it and render it tenantable; but that each of the parties interested is unwilling and refuses to expend money in repairs. That very little rent can be obtained for the property, and the prospect of renting daily becomes worse. That although the property cannot be rented for a sum sufficient to pay the taxes and keep it in tenantable repair, yet it could be sold for its value, which is considerable, and there is a prospect at present of selling it very advantageously. That the. complainant has intermarried with Rachael, aged 22, the widow of William . Trigg, and thereby, in addition to his partnership interest in *said property, / acquired his wife’s right of dower therein. That as the partner of Trigg, he. acquired by the purchase a moiety of the property. That a certain Sarah-Hamilton, a young woman, and widow of Frederick Hamilton who formerly owned the said property, claims dower therein and has brought suit therefor; and if her right of dower cannot be purchased, the said property will be absolutely worthless during the continuance of her interest therein; but the complainant is not, nor are the heirs of Trigg, willing to advance money for the purchase of her right of dower. That Trigg died leaving four children, William, Daniel, Connally and Ifilburn, who are his heirs, and John J. Trigg has, by the county court of Washington, been appointed their guardian. That John J. Trigg is fully sensible of the necessity of selling the said property, and the great advantage his wards would derive therefrom, but doubts his power, as guardian, to sell the lands of his wards. The prayer of the bill is, that the children of Trigg before named, by their said guardian, may be made defendants and answer the same; that the court will decree a sale of the property on such terms and in such manner as it shall deem most beneficial to all parties; and that the complainant have such other and farther relief as is just and equitable.
    On the day the bill was filed, John J. Trigg answered it in his own name. The respondent states, “that he believes the allegations in said bill are true: that a sale of said property will be beneficial to his wards, and this respondent would have sold the same himself, had the law conferred upon him sufficient power. He therefore has no objection that your honour shall enter up a decree directing a sale of said houses and lots for cash.” The answer was sworn to.
    On the day that the bill and answer were filed, the cause, by consent of the complainant and of the guardian, was set for hearing thereupon, and the next day *it came on to be heard. The court was of opinion, however, that it was not ready for a decree, inasmuch as the answer of the infant defendants was not filed, and therefore continued the cause until the next term, and gave leave to the said defendants to file their answer by their said guardian.
    Before the next term, John J. Trigg resigned his guardianship, and the county court appointed Henderson guardian.
    On the 15th of May 1815, on the motion of the plaintiff and for reasons appearing to the court of chancery, it was ordered that Abram B. Trigg be appointed guardian ad litem to the defendants.
    The next day, an answer was filed in the name of the infant defendants by their said guardian ad litem, stating, “that they believe it is true that their father William Trigg deceased and the complainant were partners in merchandise for a considerable time before the death of the said William, and that the houses and lots now sought to be sold by the complainant were purchased out of the joint funds of the said partners; that the same were always considered as forming so much stock in the said trade of merchandise, the most valuable part of which houses and lots was made use of by them as a storehouse. They farther state, that they are perfectly willing the said houses and lots shall be sold as prayed for bj- the complainant in his bill, because they think it would conduce much to their interest, whether the same be viewed as real or personal estate. The continual decay of the houses, the destruction which houses always experience when rented, their situation in a town where there are no adequate means provided for preventing or suppressing fire, and where a recent event proves that danger is not only to be apprehended from that quarter by accident, but that there is good reason to believe some person or persons are so hostile to the said town, or some of its inhabitants, *as to put into operation, willingly, that destructive element — are all reasons for disposing of said property. In addition to which, the respondents state that if the said property shall be considered as real estate, its being held jointly by these respondents and the complainant, and the indivisible nature of the property, make the management of it extremely inconvenient, and, should not the utmost harmony prevail between the complainant and these respondents or their guardian, utterly impracticable.”
    On the 19th of May 1815, the court, upon the bill and answers, decreed that the houses and lots in the bill mentioned be sold, subject to the claim of dower of Rachael Henderson and Sarah Hamilton. The time and place of sale were directed to be advertised at the door of the courthouse of Washington county, and in the newspaper published nearest the premises, for at least six weeks, and the sale was directed to be upon the premises, to the highest bidder, upon a credit of twelve months, bond with good security being taken from the purchaser for the payment of the purchase money.
    Benjamin Bstill, who by the decree was authorized to act as commissioner, reported that sale was made pursuant to the decree, on the 20th of July 1815; that Martin Beatty and Bilburn B. Henderson, merchants of the town of Abingdon, became the purchasers for the sum of 2500 dollars; and that they had entered into bond, with sufficient security, to pay that sum at the expiration of twelve months.
    There being no exceptions to the report, the court, on the 18th of October 1815, decreed that the same be confirmed; that the bond be filed subject to the future order of the court; that the commissioner convey the property to Henderson & Beatty, with special warranty; and that each part}' pay his own costs.
    *The commissioner had in fact made a conveyance before the order directing the same. The deed bears date the 27th of July 1815, and was admitted to record the same day. It recites the previous decree, and the sale in pursuance thereof, and purports to be in consideration of a note executed by Martin Beatty and Bil-burn B. Henderson for the sum of S2500 dollars, payable twelve months after the day of sale.
    The bond filed subject to the future order of the court, was delivered up, without such order, on the 17th of July 1817, upon the following receipt being filed:
    “Abingdon, 31st March 1817. This day received of the firm of Henderson & Beatty 2500 dollars and the interest thereon, in full of a note executed to Benjamin Rstill esq. commissioner &c. for that sum payable at 12 months, which note was executed to the commissioner for the purchase of the houses and lots in the town of Abingdon by the said Henderson & Beatty, and was by the said commissioner filed among the papers in the high court of chancery at Wythe courthouse, in the cause B. B. Henderson surviving partner of Henderson & Trigg, plaintiff, against William, Daniel, Connally and Bilburn Trigg, heirs of William Trigg deceased; which sum I, Bilburn B. Henderson guardian of the infant children of William Trigg deceased have this day received in my character as guardian aforesaid.” (Signed) “B. B. Henderson, for himself and as guardian of the said defendants.”
    “Teste, Daniel Rogan.”
    Before the 19th of April 1820, Henderson died. On that day, Rachael Henderson, his widow, and the mother of the infant defendants, was by the county court appointed their guardian.
    On the 2d of May 1820, a deed was made between Martin Beatty surviving partner of Henderson & Beatty, and Rachael Henderson the widow of Bilburn B. Henderson, *'of the one part, and David Pierce of the other, purporting to be in consideration of the sum of 5000 dollars, and for that consideration conveying the property- to Pierce, excepting, however, the dower claim of Sarah Hamilton in one of the lots. Rachael Henderson by this deed releases to Pierce all claim which she niay have to dower in the lots, either by her marriage with William Trigg her first husband, or with Bilburn B. Henderson her last.
    The deed was made and the transaction managed by John H. Pulton, as the attorney in fact of Beatty who had gone out of the commonwealth. Pulton paid mrs. Henderson, for the dower rights so released by her, 500 dollars in bonds &c. belonging to the firm. And Pierce gave the firm of Henderson & Beatty credit, in their account with him, for 5000 dollars the price of the property so conveyed to him, leaving the balance of Pierce’s account against Henderson & Beatty still due.
    Time having been allowed the infant defendants, by the decree of the 19th of May 1815, to shew cause against the same for six months after they should respectively attain the age of 21 years, and William Trigg, the eldest of them, having attained his age on the 8th of January 1828, application was made by him on the 4th of June 1828 to be permitted to shew such cause. The case was thereupon revived in the name of Daniel Rogan and Joseph C. Trigg as executors of Henderson, and William Trigg filed his answer, insisting that when the sale was made, it was not necessary or proper. The language of the answer is as follows: “The said firm of Henderson & Trigg was not indebted at the death of William Trigg, having made a handsome profit during the partnership. The private estate of William Trigg did not require a sale of said property, his personal estate having been, at the period of his death, if honestly administered, not only sufficient for the payment of his debts, but also sufficient to maintain and educate his ^children, and afford, in addition, a handsome property to each of his children.” The respondent further contends that the price obtained for the property was inadequate. Then, after mentioning that Henderson procured himself to be appointed guardian for the respondent and his brothers, the answer proceeds as follows :
    “The said Bilburn B. Henderson, a short time after his appointment as guardian of this respondent and his brothers, executed a receipt, from himself in his own right and as guardian as aforesaid, to himself, or rather to said Henderson & Beatty, for the purchase money due on the bond for the said property, which had been placed in this court by the commissioner who sold the said property tinder the decree aforesaid, and thus obtained possession of the same. Your respondent expressly charges, however, that the said firm of Henderson & Beatty had not, at the time "when the said receipt was given, paid any part of said bond, nor have they yet paid any part of the same. On the contrary, the said firm of Henderson & Beatty was at that very time largely indebted to the firm of Henderson & Trigg for goods, which debt yet remains unpaid. The said Lilburn, as your respondent expressly charges, executed the said receipt for the fraudulent purpose of possessing himself of said ■ bond without having paid any part thereof. The said bond yet remains entirely due and unpaid. It is of no benefit to this respondent that he might perhaps charge the sureties which the said Henderson gave on his bond as guardian, because they are also chargeable with other very large sums which came into the hands of said Henderson as guardian of your respondent and his brothers, for which he hath never accounted, and which the said sureties are utterly unable to pay, as well as to pay this sum.” The answer then insists that the sale ought either to be entirely annulled, or the respondent and his brothers held entitled to their lien on the property for the said purchase money and interest.
    *On the 27th of May 1829, upon the motion of the defendants, leave was given them to file a cross bill; and David Pierce and John M. Preston were ordered to be made defendants.
    The cross bill was accordingly filed the next day, in the name of William K. Trigg. This bill sets forth that William Trigg deceased, in his lifetime, formed a partnership with Henderson, which was carried on for several years before his death, and realized a large profit, one half of which, in addition to the whole of the capital stock furnished by him, belonged to William Trigg. It also sets forth that during the continuance of the partnership, the houses and lots mentioned in the original bill were bought with the partnership funds. And it insists that when the original suit was brought for the sale of said houses and lots, there was not only no necessity for the sale of said property, but as Henderson had re-cieved and applied to his own use the whole of the capital of Henderson & Trigg, as well as the profits, which had been great, he ought not to have been permitted to take any portion of the real property, which had been bought with the partnership funds, and ought to have been considered as part of the mercantile capital. The bill sets forth the rights of the complainant and his brothers under the will of their father, whereof Henderson was executor; and states that Henderson was largely in arrear, both as executor and guardian, and while in this condition sold and conveyed the houses and lots to David Pierce, who sold and conveyed the same to John M. Preston, both of whom, it alleges, had full notice of the foregoing facts and of the equitable claims of the respondent and his brothers, when they respectively purchased. The bill also sets forth in what manner the bond of Henderson & Beatty for the purchase money discharged; the fact of their being insolvent, and their surety so nearly so, as to render a suit against him hopeless, even if the *bond had not been withdrawn from the court; and the fact that Henderson died largely indebted as executor and guardian, insolvent himself, and the sureties whom he gave as guardian also insolvent. The prayer of the bill is, that Henderson’s executors, Pierce, and Preston, be made defendants; that an ■account be taken to ascertain what amount is due from Henderson as guardian, and what amount was due when Pierce and Preston purchased; that an account be taken also of the partnership of Henderson & Trigg, shewing the state of the accounts as well at the time of the sale of the property as since that time; that the sale be either entirely set aside, or the property subjected to pay the complainant and his brothers their proportion of the purchase money and its interest; and that such further relief be granted as is suited to the case.
    On the 22d of October 1829, on the motion of Daniel Trigg, who had then attained the age of 21 years, leave was given him to appear in the original suit, and shew cause against the decrees of the 19th of May and 18th of October 1815; and thereupon he filed his answer, in which he refers to that of his brother, as detailing correctly the circumstances of the case, and asks the same relief that his brother had asked.
    At November rules 1829, Pierce and Preston answered the cross bill. Pierce, by his answer, admits that Trigg and Henderson were partners in a mercantile establishment at Abingdon, and that the house and lot which he purchased was mercantile property, procured with their partnership funds; but he does not admit that the capital of the firm was furnished exclusively by Trigg, and requires proof of that fact, if it be material. He contends, that the house and lot being mercantile property, Henderson the surviving partner had a right, upon the death of Trigg, to sell the same, and relies upon the facts alleged in the bill in the original suit, and the proceedings and decree in that suit. He *states from whom and under what circumstances he purchased; denies that he had any notice of the claim or pretended claim of the complainant and his brothers, at the time he purchased, or for several. years thereafter; and having obtained the legal title, and fully paid the purchase money, before he had ,anyr knowledge of any defect or claim adverse thereto, he claims the protection of the court as an innocent purchaser.
    Preston’s answer states, that he purchased the property from Pierce, and has received from him a deed in fee simple, with general warranty. He admits that he was aware of the complainant’s claim at the time he purchased and received the deed, but contends that if the complainant be entitled to recover any thing, a decree ought to be rendered against Pierce for the amount, and that the respondent ought not to be disturbed in his possession of the property, as Pierce is possessed of an estate fully ample to meet any decree which may be rendered.
    On the 15th of September 1831, an order was made by the circuit superior court of Wythe county, directing an account to ascertain the original capital vested in the firm of Henderson & Trigg, and by whom the same was furnished; also to ascertain the balance, if any, due from Henderson at the time of the decree of the 19th of May 1815, and whether the said balance has ever been paid ; also to ascertain the state of the accounts between the said firm and Trigg, or his estate, at the date of said decree, and whether the balance due thereon has ever been paid.
    On the 15th of February 1833, on the motion of Connally Trigg, who had then attained the age' of 21 years, leave was given him to appear in the original suit, and shew cause against the decrees of the 19th of May and 18th of October 1815; and thereupon he filed an answer, similar to that of bis brother Daniel.
    *David Pierce dj7ing, an order was made on the 21st of February 1834, by consent of John Foster his administrator, reviving the second suit against the said administrator.
    On the 28th of April 1835, leave was given the plaintiff in the second suit to amend his bill, so as to make Daniel, Connally and Lilburn L. Trigg parties plaintiffs, and the widow, heirs and devisees of Lil-burn L. Henderson parties defendants.
    Under the order of account, a report was made by a commissioner; but being considered by the court ex parte, it was recommitted, and the commissioner further directed to state the guardianship account of Henderson.
    At the same term at which this recom-mitment took place, to wit, on the 28th of September 1835, the causes being heard upon the bills, amended bills, answers, exhibits, and examinations of witnesses, the court decreed, that the decree of the 19th of May 1815, directing a sale of the houses and lots in the original bill mentioned, and that of the 18th of October 1815, confirming the said sale, be rescinded and annulled; that the original bill be dismissed; and that the defendants thereto recover against the plaintiff their costs by them in their defence expended. And it was further decreed that an account be taken to ascertain whether the firm of Henderson & Trigg was indebted to William Trigg as a partner, on the 19th of May 1815, and to what extent.
    Upon the petition of John Poster administrator of David Pierce, and John M. Preston, an appeal was allowed from the decree.
    The cause was argued in this court by M’Comas and Patton for the appellants, and by Beverley R. Johnston for the appellees.
    
      
      He had been counsel for the appellants.
    
    
      
      Chancery Jurisdiction — Sale of Infant’s Land. — It has been supposed and contended by some, and eve.n decided by courts, that a court of chancery is a general guardian of infants within its jurisdiction, and has an inherent power to decree a sale of their real estate whenever it is for their advantage to do so. In Virginia, there has been, I believe, no express adjudication of the question. President Tucker pronounced a very decided opinion against such jurisdiction in the case of Pierce v. Trigg, 10 Leigh 406, and though what he said on that subject was only an obiter dictum, yet it has been generally regarded and acted upon as a sound exposition of the law. I think, however, that the question ought now to be considered as settled in this state, and in accordance with the views of President Tucker, especially as that seems also to have been the view on which the legislature of the state has always acted, first in passing special acts for the sale of real estate of infants, as was formerly the case, and then in passing general acts on the subj ect, and extending them from time to time, as necessity or convenience seemed to require. It is under these general acts, or one or more of them, therefore, that the jurisdiction of a court of equity to sell the real estate of infants, on the ground of infancy merely, must be derived. President Moncure, delivering the opinion of the court, in Faulkner v. Davis, 18 Gratt. 663. Judge Moncure then proceeds to briefly review these statutes.
      The principal case was also cited on this subject, in Rinker v. Streit, 33 Gratt. 667; Cumming v. Simpson (Va.), 1 S. E. Rep. 663. See also, monographic note on “Infants” appended to Caperton v. Gregory, 11 Gratt. 505; monographic note on “Guardian and Ward” appended to Barnum v. Frost, 17 Gratt. 398.
    
    
      
      Partnerships — Real Estate — When Partnership Property. — As a general rule, real estate purchased for partnership purposes and appropriated to those purposes, and paid for with partnership funds, becomes partnership property. Hancock v. Talley, 1 Va. Dec. 443; foot-note to Brooke v. Washington, 8 Gratt. 248.
      Same — Same—Personalty.—In equity, real estate purchased with partnership funds for partnership-purposes is treated as personalty, and not as realty, and is held liable to the satisfaction of the debts of co-partnership, including debts due to any one or more members of the firm, in preference to the individual debts of the partners. Diggs v. Brown, 78 Va. 295, citing principal case. To the same effect, see principal case also cited in foot-note to Christian v. Ellis, 1 Gratt. 396; Wheatley v. Calhoun, 12 Leigh 273.
    
    
      
       Decrees against Infants — Effect.—An infant cannot annul a decree witnout cause, simply because of infancy, as the statute demands that he show cause. An infant is as much bound by a decree as an adult. It is just as final and conclusive as to matters properly adjudged, only that he is saved the right, without regard to limitation barring adults, until six months after his majority, without going to an appellate court, to show cause to the same court which rendered the decree why it ought to set it aside. That cause must be just what would relieve an adult from it, — error in the record, fraud, or surprise. Lafferty v. Lafferty, 42 W. Va. 785, 26 S. E. Rep. 263, citing the principal case; Hull v. Hull, 26 W. Va. 1; Zirkle v. McCue, 26 Gratt. 517 (which also cited the principal case); Parker v. McCoy, 10 Gratt. 604.
      See further, monographic note on “Infants” appended to Caperton v. Gregory, 11 Gratt. 505; mono-graphic note on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.
    
    
      
       Judicial Sales — Validity — Purchaser Must Be a Party. — See, on this subject, foot-note to Londons v. Echols, 17 Gratt. 15; foot-note to Buchanan v. Clark, 10 Gratt. 165; foot-note to Parker v. McCoy, 10 Gratt. 595. The principal case was cited in Londons v. Echols, 17 Gratt. 39; Heermans v. Montague, 2 Va. Dec. 18; Estill v. McClintic, 11 W. Va. 425.
      See generally, monographic note on “Judicial Sales” appended to Walker v. Page, 21 Gratt. 636.
    
    
      
       Partnership Realty — Dower.—It is well settled in Virginia, as it is in England, that real estate purchased with partnership funds for partnership purposes is so far considered as personalty as not to be subject to dower or curtesy in favor of the consort of a deceased partner. Parrish v. Parrish, 88 Va. 532, 14 S. E. Rep. 325, citing the principal case.
      In Martin v. Smith, 25 W. Va. 583, the principal case is cited as authority for the proposition that a widow is not entitled to dower in partnership lands purchased with partnership funds for partnership purposes until the partnership debts have been paid.
      The principal case was distinguished in Wilson v. Davisson, 2 Rob. 401.
      See further on this subject, monographic note on “Dower” appended to Davis v. Davis, 25 Gratt. 587; article in 4 Va. Law Reg. 310-316.
    
   *TUCKER, P.

In the view which I take of this case, it is altogether unnecessary to enter upon the enquiry, so earnestly prosecuted in the argument, of the power of a court of chancery to change the real estate of an infant into personal, by a sale of his inheritance. 1 beg leave, however, to state my impressions on the subject, as it has been so earnestly pressed.

Notwithstanding the difference between the powers of the english chancellor over the estates and persons of infants, and those which are exercised with us by the superior courts of law and chancery, I shall not rest my opposition to the power which is claimed, solely upon that difference. It is indeed a grave consideration, that if the power exists at all, it is peculiarly within the province of the county courts, who alone possess the power of appointing guardians, and before whom their accounts are to be audited and passed. Yet it would seem questionable whether it could ever have been intended by the legislature to give so broad a discretion to the county court, (organized as it is,) to sell the landed estate of an infant, at the instance perhaps of an interested and unprincipled guardian, or of designing connexions and friends. It is, I think, notorious that no such power has ever been exercised in Virginia, except under the particular provisions of the statutes, 1 Rev. Code, ch. 96, $ 20; Id. ch. 108, § 16-23; pp. 358. 409, 10. It is notorious, that until the passing of these statutes, no sale of an infant’s real estate was ever made except under the authority of a private act of assembly: and both these statutes distinctly indicate the legislative understanding, that the power asserted could only be exercised under legislative authority.

I take, however, a broader ground. I deny that there is any power in the chancellor of England to sell an infant’s inheritance upon the pretext that the sale will be for his advantage, if we are justified in denying the *power by the dictum of one of their ablest chancellors, sustained by the fact that no instance of such a sale is to be found in their judicial history. Cases indeed are numerous of the conversion of money and other personalty into real estate, though even the exercise of this power is fenced about with rules to prevent its curtailing the infant’s legal powers, and to secure the succession of the estate as if no such conversion had been made. Earl of Winchelsea v. Norcliff, 2 Freem. 96; S. C. 1 Vern. 435; Ex parte Phillips, 19 Ves. 122. So, too, there are instances of authority to cut timber on the lands of an infant tenant in tail: but this on the one hand involved no difficulty as to the execution of conveyances, and on the other it has probably been regarded in the light of one of the profits of the estate, since the tenant in tail is not impeachable for waste, and as he may die without issue, the fair benefits of the estate may be lost to him, as the inheritance must pass over to another. There are other cases, also, respecting timber on fee simple estates, which is permitted to be cut and sold to raise a fund for repairs; but this, it is obvious, is far different from the conversion of the inheritance by sale out and out, which involves a power to execute a deed for the infant, or a power to compel him to execute it, nolens volens, when of age. Cases occur, too, in which there is an election in an infant to take land or money, and the court elects for him. Turner v. Street, 2 Rand. 404. But there the legal title is not in the infant: it is in some other who is bound as trustee, and must convey as the court directs: and as to the infant, until election, non constat whether the estate is real or personal, and the election for him, therefore, operates no conversion. But the power to decree a sale of the inheritance out and out, and a conveyance of title by a commissioner, or by the infant himself when adult, in invitum, isdisclaimed by one of the first judges of England. In Taylor v. Philips, 2 Ves. *sen. 23, lord Hardwicke said, 1 ‘There is no instance of this court’s binding the inheritance of an infant by any discretionary act of the court. As to personal things, as the composition of debts, it has been done; but never as to the inheritance; for that would be taking on the court a legislative authority, doing that which is properly the subject of a private bill.” And when Chetwynd’s case, 1 Bro. P. C. 300, was mentioned, he took the distinction — ‘ ‘There was an election to be made; something was necessary to be done. I remember I was of opinion with the decree, when it came af-terwards in the house of lords.” It is said that this was but a dictum; yet if so (and that does not appear) it was the dictum of a great man, and is more solemnly repeated in another case. And what are the contrary opinions but dicta? Some of the judges assert the power to change the nature of the infant’s property, but not an instance is to be found in the english books of such a change of realty, except in the qualified manner above mentioned. Nor have I met with such an instance in the decisions of our sister states, except that in 3 Desauss. 22, which is unsupported by any previous case. Upon the whole, therefore, I cannot think the decree for sale in this case is sustained by the existence of the power which has been so zealously asserted.

I proceed to the next question which arises in this case, and which is no less interesting than the former. Is freehold estate, purchased by partners in trade for partnership purposes, and so used, to be considered, on the death of one partner, as 'personal estate devolving upon the surviving partner, and subject to distribution as other personal estate of the firm? On this subject there has been much diversity and fluctuation of opinion. The early cases looked upon lands purchased for partnership purposes out of partnership funds, as personal estate. Jeffereys v. Small, 1 Vern. 217. Eord *Thurlow thought otherwise, unless there was an express agreement. Thornton v. Dixon, 3 Bro. C. C. 200. Sir William Grant followed him in two cases; Bell v. Phyn, 7 Ves. 453, and Balmain v. Shore, 9 Ves. 500. After this, lord Eldon, in several cases, seems to have been undecided upon the question; but at length in Selkrig v. Davies & Salt, 2 Dow’s P. C. 242, he is said to have declared his opinion that real estate so circumstanced ought to be considered as personal. Subsequently, however, he once more doubted in Crawshay v. Maule, 1 Swanst. 508, 521; though he had before decided, in Townsend v. Devaynes, cited in Montague on Partn. 97, that such was the law. On the foundation of this opinion, the principle was recognized in England in the case of Phillips v. Phillips, 1 Mylne & Keene 649, 7 Cond. Eng. Ch. Rep. 208; after an able argument by the bar, and a full consideration by sir John Leach, master of the rolls. I think, then, the doctrine laid down in Gow on Partn. 51, and 3 Kent’s Comm. 37, may now be taken as settled in England; namely, that'real estate purchased for partnership purposes with partnership funds, and used as a part of the stock in trade, is to be,considered to every intentas personal property, not only as between the members of the partnership respectively, and their creditors, but also as between the surviving partner and the representatives of the deceased. The legal title may indeed be in the heir, but let the legal title be in whom it may, it is in equity deemed partnership property, and the partners are deemed ces-tuis que trust thereof, while the holder of the legal title is but a trustee for the partnership.

This doctrine is perfectly reasonable, is founded in justice, and is entirely consistent with the equitable principles. Eor the purchase having been made with partnership funds for partnership purposes, it is a purchase by one or by both, for the benefit of both in their social character, and to whomsoever the legal title may *be conveyed, he becomes trustee, not for himself and his copartner as individuals, but for the partnership itself, considered as a separate and distinct person, invested with rights separate and distinct from each of the partners. This artificial person, then, being the cestui que trust, has all the rights of a cestui que trust. The complete ownership is in it. It can sell this portion of the partnership stock at pleasure, but neither partner can lawfully sell his moiet3r, though, if the legal title be in him, a purchaser from him without notice will be protected, as in the case of purchases from other trustees. Thus we see that in the individual partners there is but a naked legal title, and of course, upon the death of one, a mere legal title passes to his heirs, while the whole beneficial interest passes to the survivor, for the purposes of the partnership in the first instance, and when they are satisfied, the surplus is to be divided between himself and the representatives of the deceased partner. But until the concern is wound up, the whole control of the partnership stock is in the survivor, unless for adequate cause his powers are restrained or superseded by a court of equity. Gow on Partn. 378. Possessing this control, being now the sole cestui que trust (though liable to account with the representatives of the deceased partner) he has the right to sue the trustee (the heir at law) and to compel a sale for the purpose of distribution. The representatives of the deceased partner, indeed, may also insist upon a sale, if the surviving partner is backward. Gow 256. But beyond doubt, the survivor may apply to equity to decree a sale. Tor neither party has a right to compel a division of the specific subject in kind, or require the other to accept what, according to a valuation, his interest may be worth. Gow 257. Equity always directs the value of the subject to be ascertained in the way in which it can best be ascertained, namely, by sale and conversion into money. *Gow 257. Crawshay v. Collins, 15 Ves. 226; Crawshay v. Maule, 1 Swanst. 506.

And who are these personal representatives who must be made parties, and to whom the distributable surplus is to be paid? There is no question that the interest of the deceased in so much of the partnership stock as in its nature is strictly personal, must pass to the executors. But, as already observed, it has been a vexed question in England, whether the interest of the decedent in the real estate belonging to the firm, and the proceeds of the sale of that interest, belong to the personal representative or to the heir. The better opinion gives the fund to the former; and with reason; since, upon familiar principles, as the land was purchased with the personalty and was brought into the firm as stock, it ought, as between the executor and the heir, to replace the fund withdrawn from the personal estate. By placing it as stock in a partnership fund, the deceased evinced a design to treat it as personalty, and it ought to go accordingly. The representatives of the deceased can only claim it as stock; and as stock in trade, it is, ex vi termini, personal.

This has been the real point of difference between the judges in England. I think that a doubt is no where expressed, that as between the survivor and the personal representative, the real property is to be taken as personalty, and dealt with as such. On the contrary, this seems to be a concessum in argument. See Phillips v. Phillips, 1 Mylne & Keene 649; 7 Cond. Eng. Ch. Rep. 210.

With these views of the english law, let us see whether there is any decided case in Virginia, which is at war with the doctrines of that law. I say in Virginia; for the decisions of our sister states are conflicting, and the opinions of two most eminent jurists, propound, as the true principles, the doctrines of Westminster hall. See Coles v. Coles, 15 Johns. Rep. 159, and Goodwin v. Richardson, 11 Mass. Rep. 469, which stand, I think, alone; and M’Dermot v. Laurence, 7 Serg. & Rawle 438, which may be referred, I think, to the principle of Forde v. Herron, 4 Munf. 316, Winslow v. Chiffelle, South Car. Eq. Rep. 235; M’Alister v. Montgomery, 3 Hayw. 96; Greene v. Greene, 1 Hammond’s Ohio Rep. 535, are said to follow the principles of the english courts.

In Virginia there are but few cases on the subject. In Edgar v. Donnally, 2 Munf. 387, a right to land had been acquired with partnership stock, and a title taken in the name of the survivor. A claimant under the deceased partner was held entitled in equity to a moiety of the land, against a purchaser from the survivor with notice of the partnership right. In Forde v. Herron, 4 Munf. 316, the character of the property, and its liability to the partnership demands, are admitted, though it is decided that if the parties take their deeds in such form as not to disclose the connexion of the title with the partnership, a purchaser without notice will be protected against the partners or their creditors. Lastly comes the case of Deloney v. Hutcheson, 2 Rand. 183. That case was decided by a court of three judges, and only one of these touched upon this question ; nor was it necessary to the decision of the cause. The opinion of judge Green, however imposing, does not appear to me to be sound. He seems to take the rule in equity in England 1 ‘to depend upon the existence there of the jus accrescendi in lands, whereby, upon the death of one partner, the legal title to the whole is vested in the other; and that if the representatives claim the advantage of the principle of equity which considers the joint interest of partners as an estate in common, they must submit to pay to the surviving partner whatever is due him upon the partnership' transactions. In Virginia, there being no jus accrescendi, the legal title is in the heirs, and the representatives ^therefore can be put under no such conditions.” With the most profound respect for the opinions of this able judge, I apprehend the rule in England rests on entirely different grounds. Where a purchase is made by partners with partnership funds, for the purposes of the partnership, it is admitted by the learned judge that there is a trust for them in their character of partners, although the conveyance be to the partners in their individual characters; and I will add, that although the purchase was made in the name of the deceased partner, yet he is held but a trustee for the partnership concern. Gow 255; Smith v. Smith, 5 Ves. 189. In that case, the conveyance was made to one of the partners, and the question was whether his wife had a right of dower. The court decided that she had, but upon the specific provisions in the deed, which proved that the purchase was made with the express agreement that her husband, to whom the deed was executed, should not hold for the firm, but in his own right, and be held debtor to the firm for the money advanced. The chancellor held that but for this specific agreement, ‘‘although the deed was taken to one of the partners, the estate would have been regarded as partnership properly,” and so the wife would not have been entitled to dower. See also sir S. Romilly’s argument: in Bell v. Phyn, 7 Ves. 456.

A case has been mentioned by my brother Parker, of Taylor v. Thomson, not reported, in which this court allowed dower to the widow of a partner who had purchased property with the partnership funds. I did not sit in that cause, having' been concerned in it in the courts below, and my recollection is very imperfect as to the facts. One important fact I do remember. The estate purchased was a valuable farm, the conveyance of which was made to Taylor alone. It was not bought for partnership purposes, nor so held, although it was paid for, I think, out of partnership *funds. It resembles therefore the case of Smith v. Smith, S Ves. 189, and it is probable the court considered Thomson as having a mere equity to charge the estate, which could not prevail against the widow’s legal right of dower. Be this as it may, the facts of the case are too obscurely recollected to enable me to follow it as a guide.

Upon the whole, I am of opinion that the late english cases propound the true rule, and that real estate purchased with partnership funds and for partnership purposes, must be regarded as partnership stock, and treated as personalty.

We come now to look to the character of this case as disclosed by the record. That the houses and lots in the proceedings mentioned were purchased with partnership funds by the partners jointly, sufficiently appears, I think, from the whole of this record. The bill states that during the life of Trigg, a mercantile partnership existed' between him and Henderson: that during its existence they purchased the lots, which were conveyed to them jointly, and occupied by them for some time. The guardian ad litem yet more distinctly states, that the houses and lots were purchased out of the joint funds of the said partners, and were alwaj's considered as forming so much stock in their trade, and the most valuable was made use of by them as a storehouse. The statement of the guardian ad litem cannot prejudice the infant, it is true, where he contests it in his own subsequent answer. But in the answers in this case, it is not alleged that the facts stated by the guardian were untrue or mistaken, but the objection made is that the firm was not indebted, and that therefore no sale was necessary; clearly implj'ing that the property was liable to the debts of the firm, had a sale been necessary for their payment. And moreover, in the cross bill filed by one of the heirs, they allege that the property was bought during the continuance of the partnership, *out of the partnership funds, and they contest the sale on the ground that Henderson ought not to have been permitted to take any portion of the real property which had been bought with partnership funds and ought to be considered as part of the mercantile capital. Now the cross bill is nart of the defence, and has always been so considered. 3 Atk. 812. In answering this charge in the bill, the defendant Pierce also admits that the property was mercantile property, procured with the partnership funds; so that the fact seems to be conceded by all the parties in the cause.

But it is contended that this case is not made by the bill, and that though such was the fact, it did not appear by any proofs in the cause at the time the decree was rendered, and so the decree was erroneous and ought to be set aside. I do not think the conclusion is warranted by the premises. The infant defendants are permitted to come in and shew cause against the decree; and if they had shewn this for cause, without more saying, it would have been difficult to sustain it. But when, instead of doing so, they set forth facts in their answers which fully sustain the decree; when they go farther, and file a cross bill claiming to charge Henderson’s moiety of the property as part of the partnership stock, can this court say that the chancellor has improperly treated this property as mercantile stock? Can it set aside this decree, pronounced twenty-four years ago, under which a judicial sale has been made, upon the faith of which successive' purchases and conveyances have taken place — -by persons too having no notice of any equity on the part of the plaintiffs, but on the contrary having notice, I presume, of the fact stated by the heirs themselves, that the property in question was partnership property, and therefore properly sold? I think not. The privilege given to infants to answer anew and shew cause against a decree, is given to enable them to set aside that which is done to their prejudice, *and not to overthrow what has been justly done, because of some technical objection to the proceedings. The decree against an infant, though it gives him a day to answer, is of the nature of a final decree, and is carried into execution as such, nor is it reversible but for error, or fraud and collusion. 1 Grant’s Ch. Pr. 226. The form of the decree giving time is thus: “And this decree is to be binding on the infant, unless &c. he shew to the court good cause to the contrary” — that is, that it ought not to be binding. Powell on Mortg. 980; Tennent’s heirs v. Pattons, 6 Leigh 208, per Carr, J., citing Bingham on Infancy, 131, 2. And hence it is, that even in the case of a mortgage, he is not permitted to go into the accounts, nor to redeem by paying what is reported due, but can only shew error in the decree, or that it was unjust. Powell on Mortg. 983; 3 P. Wms. 352. And it seems now to be the common course to pray a sale in the case of an infant, that he may be bound. 1 Vern. 295; Powell on Mortg. 983. And even if he be foreclosed, he is bound. “For an infant may be foreclosed. You can have your decree against him. He can do nothing but shew error. He is foreclosed to all intents. You may go to market with it, and the purchaser is only liable to be overhauled in the account.” Bishop of Winchester v. Beavor, 3 Ves. 317. And if no day is given the infant, and he files his bill to set aside the decree for fraud and collusion, if no fraud appears, it will not be set aside unless it be shewn to be unjust. Richmond v. Tayleur, 1 P. Wms. 736. And so in Williamson v. Gordon, 19 Ves. 115, lord Eldon, admitting- the right of the infant to shew cause, said, “but he cannot do that, if the decree would have been right against him had he been adult. He can shew nothing but error in the decree; and a decree of foreclosure is not error, according to my notion.” In this case, had the heirs been adults and answered, they *must have answered shewing the facts now stated by them ; and if so, the sale must have been decreed. And even now, if, upon the case as it now stands, a sale ought to have been decreed, cui bono set aside the former decree, and then decree the same thing over again? There can be no difference, except the unjust effect of setting aside a fair judicial sale (made under the faith of the decree) against purchasers as to whom no unfairness can be alleged.

I am aware it is contended that as Henderson was largely debtor to the firm, no sale ought to have been made. But the fact does not appear, and if it had appeared at the date of the decree, it could not have arrested.the sale, but would only have arrested, the funds; for (as has been already shewn) upon the death of one partner, the partnership stock of every description must be sold, in order to a division between the partners.

Upon the whole, I am of opinion that the decree of 1815 must stand, and the sale under it be held unimpeachable. And as to the purchase money, whether paid or not, the purchasers Pierce and Preston were in no wise responsible for it. No lien was retained on the land. The bond given by the purchasers was taken up, and a receipt filed by the guardian and executor. If this transaction was fraudulent, it is not proved to have been so, and still less is it proved that Pierce knew of the fraud: and having the legal title, and having received it before notice of the claim of the representatives of Trigg, they must be protected, even if it be conceded that the heirs, and not the executor, were entitled to the money.

The original decree must stand, and the cross bill be dismissed as to Pierce’s representative and Preston; the land in their hands not being responsible to Trigg’srep-resentatives for any amount due them from Henderson.

*As, however, the sale in this case was made subject to the claims of dower of Rachael Henderson and Sarah Hamilton, one of which has never been asserted and the other of which was never valid, and as the price of the lots may have been affected by the supposed existence of those incumbrances, it has been suggested by my brother Cabell, that in so far the infants have been injured and are entitled to relief. To this suggestion I have yielded, though I do not think the chancellor who entered the decree of 1815 could have done otherwise. On the one hand, not having the claimants before him, he could not pronounce definitively on their claims ; and on the other, as the sale was required for winding up the partnership concern, and was equally demanded by the state of the property, and pressed by the surviving partner, who was also the executor of the deceased partner, and by the guardian of the heirs or distributees, he could not properly have delaj'ed the sale until the claimants were made parties (if indeed that was practicable) and their rights definitively settled. Yet as the price may have been affected to the detriment of the appellees, and as, without disturbing the sale, redress may be afforded, I do not think it ought to be denied. To disturb the sale would be to establish a precedent pregnant with mischief and in conflict with all authority. The cases already cited shew that in foreclosures, or in sales under mortgage decrees, the infant cannot redeem, or set aside the sales. Relief, when afforded, is given without interfering with the foreclosure or the sale. The necessity of attributing the highest sanctity to judicial sales, where the authority to sell is without question, is sustained by the gravest considerations. Who would buy, but at a runious sacrifice, if, after the lapse of 21 years, upon the determination of the infancy of a newborn child, his purchase might be set aside? Who, if he made such a purchase, could venture to improve? And with these difficulties, *what prospect would there be that the property of the infant would ever be sold for an adequate price? It is then for the benefit of infants that the rule is established. It is to prevent the ruinous sacrifice of their property, that purchasers under judicial sales of their estates are to be protected in their purchases, and that all proper redress should be afforded the infants without invalidating their title.

In this case, then, I am of opinion that the decree of September 1835 should be reversed, and the cause sent back, with directions to institute such proceeding as may seem most expedient for ascertaining what was the true value of the houses and lots in 'the proceedings mentioned, on the 20th of Julj' 1815, (the day of the former sale,) if sold upon a credit of twelve months, free of all incumbrances; to enter a decree in favour of the appellees for one half of any excess above the price at which the property was formerly sold, with interest from the 20th of July 1816 till paid; and to make the same, (viz. the moiety of the said excess, if any, with the interest as aforesaid) a charge upon the premises in the hands of the appellant Preston, who, upon the payment thereof, should have a decree over against the estate of David Pierce deceased.

PARKER, J.,

dissented from the foregoing opinion, except so much thereof as relates to the general power of a court of chancery to decree the sale of the lands of infants. But

CABELE, J.,

concurred with the president in entering the following decree:

The court is of opinion that there is error in the decree of the circuit superior court of law and chancery in the original cause, in rescinding and annulling the decrees of May 1815 and October 1815, and in dismissing *the plaintiff's bill; the court being of opinion that the said decree of May 1815, directing a sale of the premises in the proceedings mentioned, and that of October 1815, confirming the sale, ought to stand and be affirmed. But foras-much as the said sale was made subject to the claims of dower of mrs. Henderson, who had no title thereto, and of mrs. Hamilton, who appears never to have asserted a title, and as thereby the houses and lots may have been sold for less than they would have brought if sold free of incumbrances, it is reasonable that the estate of William Trigg deceased should have relief. Therefore it is adjudged and decreed, that the said decree in the original cause be reversed with costs, and that the cause be remanded to the said circuit superior court to be further proceeded in, with directions to institute such proceeding as may be deemed expedient for ascertaining the true value of the premises at the date of the sale of the 20th July 1815, if the same had been sold free of all incumbrances, on a credit of twelve months; and to decree one half the excess, if any, over and above the price for which they were then sold, to be paid into court to the credit of the personal representative of the said William Trigg deceased ; the sum so decreed to be chargeable upon the premises, if not paid by a short day: and in case the same be paid by the appellant Preston, he to have a decree over against the proper representatives of Pierce, and they in their turn, if they ask it, over against their vendor.

And in the cross cause, the court is of opinion that there is error in this, that for-asmuch as the houses and lots in the hands of the appellant Preston are not chargeable with any demand of the appellees, or of the estate of William Trigg deceased, against Henderson, the said bill, as to the appellants, should have been dismissed with costs.

Therefore, both decrees reversed with costs. _  