
    Catharine Sumner v. James Hampson and the Heirs of John Williamson, deceased.
    Whffrh partners manifest an intention to hold land as partnership stock, and." sell it as such, dower can not he claimed in such lands to the prejudice of partnership creditors.
    This case was adjourned from the county of Fairfield, and carne before the court upon demurrer to the complainant’s bill, which sets forth that complainant was the wife of John Williamson, who died intestate; that after the marriage of petitioner to said Williamson, and as early as the year 1805, he entered into partnership with the defendant, Hampson, as builders, master-carpenters, and-general speculators, which was continued to the death of William•son, which, happened in the year 1820; that- Williamson and Hampson had no written articles of partnership; that in the ■course of the business of said firm, and before the death of Williamson, they acquired the legal title to out-lots east of Lancaster, Nos. 7, 8, 9, 12, and 13, with partnership funds, which they continued to hold at the death of John Williamson.
    That the firm, at the death of Williamson, was largely indebted; that the accounts have not, in fact, ever been settled, and that the entire proceeds of the above-described lots, when sold, will be necessary to pay and satisfy debts yet due from the firm — the personal effects belonging to the same having been applied toward the payment of the debts. Prayer that dower may be ■decreed to be assigned to complainant out of the above described property. The heirs of John Williamson and the Surviving partner, Hampson, are made defendants, and unite in filing a general •demurrer to the bill and joinder therein.
    The question thus raised is this: Is the widow of a deceased partner entitled to dower in that part of the partnership lands which are necessary for the payment of partnership debts?
    
    B razee, for demurrant:
    The act in force at the death of Williamson in relation to dower provides, “ That the widow of any person dying intestate or otherwise shall be endowed of one full and equal third part of all the lands, tenements, or other real estate of which her husband was seized as an estate of inheritance, at any time during the coverture.” 1 Chase’s Ohio L. 472. This provision in the statute of 1805 is, in substance, the same as that in the act of 1824, which is ■still in force.
    In the case of Greene v. Greene, 1 Ohio, 535, which was decided fourteen years ago, this court determined that the *widow of a deceased partner is not entitled to dower, in lands purchased and paid for out of the partnership funds, under articles stipulating for the sale of the whole partnership property for the payment of debts, and used exclusively for carrying on their trade, the partnership being insolvent, and the deceased partner greatly in debt to the firm. In pronouncing the opinion in this case, the -court recognize and affirm some of the leading principles of law governing this subject — and say that “ her (the widow’s) estate is but a part of his (the husband’s), is derived from him, and must be subject to all incumbrances existing against it at the time of the marriage, or the acquisition by the husband. The husband can by-no act of his destroy or affect her right of dower where it has. once attached, but it only attaches where he has a real beneficial interest in the lands of which dower is claimed. Upon this principle it has been held, that the wife of a mere trustee was not entitled to dower in the trust estate, although the husband was at. law seized of an estate of inheritance. A mere technical seizin of the husband, without any beneficial interest in the estate, will not entitle the wife to dower, as where lands descend to the husband, and are afterward, by virtue of the provisions of the statute,, sold by the administrator of the ancestor, to pay the debts due by such deceased; here the husband is seized of a legal estate of in«heritance, cast on him by operation of law, but subject to the payment of the debts of his ancestor, and its being sold for that purpose shows that the husband never had a beneficial interest therein. So, where the husband is only seized for an instant. Coke Lit. 31. Where lands are mortgaged to the husband, and the mortgage money is afterward paid, the husband was seized during coverture of a legal estate of inheritance, and yet the wife can not have dower in the lands so mortgagod. Also, where lands are purchased by the husband, and mortgaged at the same time to the vendor for the purchase money, it has been held that the mortgage is paramount to the claim for dower. 15 Johns. 461; 4 Mass. 566.
    Chancellor Kent, in the edition of his Commentaries, published, in 1836, in citing the above case, says (note A, vol. 4, p. 50), “ In. that case, the subject is ably discussed ; and the whole volume is evidence of a very correct and enlightened administration of justice, in equity as well as in law.”
    All applications for dower, under our law,' are addressed to the equitable side of the court — “ and the right of dower is regulated 'tin equity by the nature of the property in the equity view of it.” 4 Kent, 49.
    In the case of Greene v. Greene, the court further say, “ It has-been too repeatedly determined to be now questioned, that the separate estate of a partner consists of that part of the partnership effects which shall remain after the debts of the partnership- and the demands of the partner qua partner are satisfied, ex parte King, 17 Ves. 115; Taylor v. Fields, 4 Ves. 396 ; Nicoll v. Mumford 4 Johns. Ch. 522; and that interest or surplus only is liable.to the separate creditors of each partner claiming either by assignment or under execution. Church v. Knox, 2 Day, 514; 6 Mass. 242, 271; 11 Ib. 249, 472 ; 2 Johns. 280. The interest which William Greene, the husband of the complainant, had at the moment of his death in the partnership effects, was the surplus, after payment of the partnership debts, and the balance due his partners. . . . If this estate is to be considered in equity as personal property, and the court have no hesitation in saying it’ must be so considered as between the partners and their creditors, he had no substantial interest at the time of his death which would .go to his representatives, or could be taken by his separate credit•ors.” And to show that the circumstance of the agreement did not influence this view of the subject, the court add, “ If it be considered as real estate, it was acquired subject to a condition or agreement that qualified the estate of the husband; and the wife when there is such an agreement, unless it were executed after her right attached, would be bound thereby so as to exclude her right -of dower.”
    It is claimed, that inasmuch as the bill in the case at bar shows that there were no written articles of partnership, and does not .■show that there was an agreement between the partners, that the lands acquired by the firm should be sold for the payment of the debts of the firm; that this case is so far distinguishable from the case of Greene v. Greene, in principle, as to entitle the complain,ant to dower. On the other hand, we claim, that the principles .settled in the case of Greene v. Greene, as well as the. settled law as to the equitable character of the property in controversy, in England and in this country, make no difference, as to the rights •of the complainant, whether there was or was not such an agreement. That the law’itself in the absence of such agreement implies it, or holds the property thus acquired with partnership funds responsible for the payment of *the partnership debts, to the exclusion of every other claim or demand upon it — arising from the partners.
    The first case that I have found, where the effect 'of such an .agreement was discussed, is that of Thornton V. Dixon, 3 Br. Ch. 198, which was decided in 1791. The rights of creditors were not involved 'in that determination. The case arose between Thornton, the administrator and husband of Ann, who claimed as sur•vivor his wife’s moiety in the property in controversy, and Jonathan, the heir of Ann and Barbary Dixon, their mother. The only question at the hearing, between these parties was as to the equitable quality of the property in controversy.
    Lord Thurlow, at the first hearing, said, “He had always understood, that where partners bought lands for the purpose of a partnership concern, it was to be considered as part of the partnership fund; and that consequently, Broadmoor and Meerbeck (the property in controversy) must be considered as personal estate, and distributed as such. And that as the surviving partners were not bound to admit the representatives of a deceased partner, after the expiration of the term to the partnership, the concern must be sold and divided, and distributed as personalty among the claimants, according to the rules of law.” The cause stood over; and upon its coming on again, “The chancellor thought, that had the agreement been that the mills should be valued and sold (not for the payment of the debts of the firm), it would have converted them into personalty of the partnership; but that the agreement in this case was not sufficient to vary the nature of the property; therefore, that after the dissolution, the property would result according to its respective nature — the real as real, the personal as personal estate.” No previous case is cited by Lord Thurlow in this case for either opinion. This being a determination of the lord chancellor himself, it is to be expected that it would influence the subsequent determinations of inferior judges, and that the result of this opinion would find its way into the elementary books, written or published soon afterward. Consequently we find, in the case of Bell v. Phyn, 7 Yes. 453, which was a controversy about a plantation in the island of Grenada, purchased with partnership funds, between the heir and the residuary legatee, that the master of the rolls (after having mentioned that there was no occasion to call for this property for any of the purposes of the partnership), and after doubting ^whether the Grenada estate, upon the case made, could be considered partnership property at the death of Phyn, says, that even if it can, “ upon the authority of thé case before Lord Thurlow, I am obliged to decide in favor of the heir.” In the subsequent case of Balmaine v. Shore, 9 Ves. 500, decided in 1804, where the question as to dower was not made, and where the rights of creditors of the firm were not involved, and where the property in controversy was shown to li.ave been purchased, not out of the partnership effects, but out of the separate property of each partner,” the master of the rolls,, speaking of the equitable character of the property or whether it. became personal, says, “ After the case of Thomas v. Dixon, reported in Brown by the name of Thornton v. Dixon, that is not a question that admits of argument; for this is rather a stronger case for the heir than that.”
    There may be, and probably are, other English cases decided upon the authority of these cases, about the same time; but it is-not deemed necessary to notice them — for if it be shown that the authority of the leading cases are overruled, nothing need be said about the others.
    In a note to the case of Thornton v. Dixon, in the London'edition of 1819, it is said, “ The doctrine upon this subject has been, altered by a very recent decision in the case of Townsend and others, executors of W. McIntosh v. Deveynes and J. McIntosh, which is reported in the appendix to Mr. Montague’s valuable, work on partnership, vol. 1, p. 97. There is also a dictum of Lord Eldon, in the case of Selkrig v. Davies, 2 Dows’ P. C. 242, in which his lordship is represented to have stated it as his opinion, that all property involved in a partnership concern ought to be considered as personal. The question will probably soon be brought forward again to receive a more solemn adjudication; in the meantime it is well understood to be the opinion of many gentlemen of the first professional eminence, that where real estate has been purchased with partnership property, for the use of the partnership, it becomes personal property, not only as between the members of the partnership respectively, and as between the partnership and creditors, but also as between the representatives of a deceased partner. The cases of Bell v. Phyn, 7 Ves. 453; Balmain v. Shore,. 9 Yes. 500, which were in a great measure determined upon the-authority of the present case, may now therefore be considered as entirely overruled.
    *The circumstances of the case in Montague, which was. decided by Lord Chancellor Eldon, in 1810, and which is said to be nowhere else reported, ought to be more particularly stated.. The controversy arose between the executors of W. McIntosh and J. McIntosh, his heir at law. The deceased McIntosh had been a partner in the paper-making business with three other persons, from 1801 to the time of his death. During the continuance of the partnership, the firm purchased certain freehold and copyhold lands in the county of Sussex, upon which the business of the partnership was carried on up to the death of McIntosh, and they paid ior the same out of partnership effects. It appears also that the will of McIntosh was not so executed as to pass real estate. It also appears from the master’s report that there was no agreement between the partners, or by the said McIntosh, binding upon his heir, for the sale of his interest as partner in the aforesaid lands. In this state of case, the executors of McIntosh sold to Devaynes, one of the surviving partners, the interest of McIntosh’s estate in the concern, including his interest in the lands, for the sum of £4,700. The master, to whom the cause was referred, was specially instructed to inquire and report, how much (if any) of the said sum of £4,700-paid to the executors of W. McIntosh, for the purchase aforesaid, arose from such part or parts of the premises as was or were personal estate. The master reported that the proportion of that sum, arising from said freehold and copyhold premises, amounted to £3,400, and that the residue thereof of £1,300 arose from such part of the premises as was personal estate. The executors, being dissatisfied with the report, excepted thereto, for the reason that he ought to have reported that the whole of said sum of £4,700 arose from personal estate. This exception was fully argued, and upon the argument was allowed by the lord chancellor.
    Although the opinion of the court in this case is not found in print, it is fair to presume, considering the nature and importance of the question, and the learning of the chancellor, that all the previous cases were reviewed and examined, and the doctrine of the decision established upon principle; if so, this case has overruled that of Thornton v. Dixon, and the subsequent cases decided upon the authority of that case, and restored the law in England, to what Lord Thurlow, in the first opinion he pronounced, declared he had always understood it to be. This is the strongest case against the defendants, in its circumstances *which can be put. Neither the rights of the partners as such, nor of creditors (which are always favored in law), were in any way involved. The question was solely between the personal representative and heir.
    In the previous case of Ripley v. Waterworth, 7 Vesey, 425, the court determined that an estate of freehold, held for the purposes of the partnership, shall in equity descend as personal estate, if it appear, by express agreement, to have been the inteniLn of the partners that it should be converted into personalty.
    Mr. Collyer, in his late work on partnership (72), in reference to this case, says, it paved the way for the modern doctrine on this subject. He further says, at page 74, “It is to bo observed that the case of Ripley v. Waterworth does not carry the doctrine to its full extent.” That “ the question, however, seems to be perfectly settled by the case of Townsend v. Devaynes, though it is to be regretted that Lord Eldon’s judgment is not included in the report of that case.” “Upon the whole,” adds Collyer, after a review of most of the English cases, “therefore, the opinion seems to be that although the legal estate in freehold property, purchased by partners, for the purposes of their trade, will go in the ordinary course of descent, yet the equitable interest in such prop•erty will be held to be part of the partnership stock, and distributable as personal estate,” lb. 76; he having previously stated, at page 70, that there is “no satisfactory reason why a .court of equity should extend the laws of descent to real property fbelonging to a partnership.”
    In the case of Feredy v. Wightwick, 5 Cond. Eng. Ch. 383, -decided in 1829, the master of the rolls states the law in relation to partnership property thus: “In the year 1799 a lease was •taken of certain mines, and a lease was also taken of the surface; .the mines and surface were used with a community of expense ,and profit. A mining concern is to some purposes a trading concern ; it is not so to all purposes; it has not therefore all the inci- • dents of a trading concern. It is a principle that all property, whether real or personal, is subject to a sale on a dissolution of '.the partnership. This is a property acquired by the partnership for the purposes of the concern, and it is subject to all the debts • of the partnership property, and to the debts of one partner to .the other partners in respect of the partnership.”
    In the case of Phillips v. Phillips, 7 Cond. Eng. Ch. 215, decided as late as July, 1832, where the controversy arose ^between the real and personal representative, the master of the rolls again states the doctrine on this subject thus, “With respect to the second question, whether the freehold and copyhold ^property, purchased with the partnership capital, and conveyed to the two partners and their heirs, for the purposes of the partnership trade, is to be considered as personal estate only for the payment of the partnership debts, or is generally to be considered, to the extent of a moiety, as personal estate of a deceased partner, I confess I have for some years, noth withstanding older authorities, considered it to be settled that all property, whatever might be its nature, purchased with partnership capital for the purposes of the partnership trade, continued to be partnership capital, and to have, to every intent, the quality of personal estate; and in the case of Feredy v. Wightwick, 1 Rus. & Myl. 45, I had no intention to confine the principle to the payment of the partnership demands. Lord Eldon has certainly, upon several occasions, expressed such an opinion ; the case of Townsend v. Devaynes is a clear decision to that effect; and general convenience requires that this principle should be adhered to.”
    In Smith’s Mercantile Law, 17 Law Lib. 86, a work published in England within the last two years, the author thus states the rule: “ In the earlier cases on this subject, it appears to have been thought that freehold lands, bought with the money and used for the purposes of the firm, ought not to be considered in equity as converted into personal property; and therefore, that at the death of one of the partners, as equity allows no jus accrescendi among merchants, even in lands, the share of the deceased would descend to his heir, whose right thereto might bo enforced in equity. This doctrine, however, now seems more than questionable, and the modern rule is conceived to be, that all property, of what nature soever, bought with the cash and for the purposes of a trading partnership concern, must in equity be looked upon as personal ; and, that as there can be no survivorship in it, a partner’s share will, on his death, pass to his personal representative, for whose benefit the surviving partners, or their trustees, will hold it; since in this the jus accrescendi takes place at law. If, indeed, the part- " ners have stipulated that freehold lands purchased by them shall not be subject to the application of this equitable doetrine, but shall follow the rules respecting property of that description, or if they act so that such a stipulation may be reasonally inferred from their ^conduct, in such a case the rule of equity yields to the ordinary course of law coupled with the intention of the parties, for quilibet potest renunciare juripro se introducto.”
    
    I will now refer the court to some American authorities bearing on this subject.
    In the case of the Ex’rs of Richardson v. Ex’r of Wyatt, 2 Des. 471, it was held “that the widow of one of the deceased copartners is not entitled to dower in the lands and houses purchased with the copartnership funds, and held in the names of all the copartners, or on their behalf.”
    The bill, in this case, was filed to obtain a settlement of two partnership concerns; the case was referred to a master, who (among other things) reported, that the complainant’s testators were each entitled to one-third part of certain bonds taken at the sale of part of the real estate of the said concern mentioned in the pleadings, to the amount of £1,023 6s. 8d. To this part of there, port, the eighth exception on the part of the defendant was filed, stating, “ that the report was defective in not allowing a credit for the value of the dower of Mrs. Wyatt in the real estate of the concern (so far as relates to her husband’s proportion), as she renounced her dower therein to the manifest benefit of the concern, and she never had been compensated.” Although the circumstances are not very fully stated, yet it is to be inferred from what is stated, that Mrs. Wyatt, at the time of the sale of the land producing the fund, agreed that it should be sold free of her claim to dower, and that she would assert her right (in lieu thereof) to the fund produced thereby. The exceptions, it is said in the report, were fully argued, upon consideration whereof, it 'was determined that Mrs. Wyatt was not entitled to dower in the lands of the partnership.
    In the case of Sigourney v. Munn and another, ? Conn. 11, the English and American cases were fully examined. It appears that complainant and Munn were partners in the mercantile business ; that they held real estate for the use of the firm, a part of which was put in as stock at the formation of the partnership by the complainant, and the residue was purchased afterward by the firm, with partnership funds; that the partnership was dissolved, but its business not settled, on April 1, 1826 ; that on March 24th, Munn, without the knowledge of complainant, mortgaged his interest in said real estate to John Holbrook, one of the defendants to secure the individual debt of Munn to him for $2,983.87] *Holbrook, at the time he took the mortgage, had no. other knowledge that the lands were eompanjr property, except what may have been derived from the records of the former deeds. The bill prayed for an account, a division of the partnership effects, and-for a conveyance of Munn’s interest in the lands. The report of the committee showed that there there was $878.69 due to complainant irom Munn, after crediting all the property of the firm, real as well as personal, amounting to $39,759.21.
    Chancellor Hosmer, in delivering the opinion, states “that courts of law, who look, at the legal title only, will consider persons in the above predicament merely as tenants in common. But courts of equity r unfettered by technical rules, and regarding the justice of each particular case, will break through the exterior form of a transaction, and if real estate is acquired with partnership funds for partnership purposes, will consider it as the stock of the company, and the legal owners as trustees for those beneficially interested. It is an obvious truth that partners are sometimes obliged to vest part of the company fund in real estate, the better to carry on their trade; and when this is done, common sense and natural justice demand that houses and land thus acquired, with joint capital, for joint purposes, should be considered as partnership property, and be liable to all the incidents attending the company’s stock. . . .
    To enter on an examination of all the cases decided in Westminster Hall, in which the subject in question has been extensively discussed, would be both tedious and unnecessary. That partnership capital, invested in real estate, for the purposes of accommodating the partnership business, is, in chancery, deemed personal estate, and part of the company’s fund, has been decidedly established. Decisions to the contrary have been made, it is admitted; but the number and weight of determinations are altogether in favor of the preceding principle.” In conclusion, he says: “ I think there exists no reasonable doubt that the land in question, put into the company stock in part and partly bought for partnership purposes, with partnership funds, and the whole being under an express agreement, that it should be partnership property, must, in equity, be considered and treated in this light.”
    Chancellor Sent, in 3 Com. 37, ed. of 1836, says: “If partnership capital be invested in land for the benefit of the company, though it may be a joint tenancy in law; yet equity *will hold it to be a tenancy in common, and as forming part of the partnership fund; and the better opinion would seem to be that equity will consider the person in whom the legal estate is'vested, as trustee for the whole concern, and the property will be entitled to be distributed as personal estate. The point has been extensively discussed and considered in this country, and the cases are not inconsistent with this principle, when they admit, upon grounds of reason and policy, that real estate, acquired by partnership funds, and held by partners in common, may be conveyed or charged by one partner on his private account, to the extent of his legal title, whether that legal title covers the whole or a part of the estate; provided the purchaser or mortgagee dealt with him bona fide and without notice of the partnership rights, and there was nothing in the transaction from which notice might reasonably be inferred. In Tennessee, an estate so held in joint tenancy by partners, for the purposes of trade, may be sold by the survivor, in whom is the legal title; but he will be subject to account to the representatives of the deceased partner for their proportion of the proceeds. In New York, the Supreme Court, upon the strength of the ultimate opinion of Lord Thurlow, in Thornton v. Dixon, and of the opinion of the master of the rolls in Balmain v. Shore, declared in Coles v. Coles, 15 Johns. 159, that the principles and rules of law applicable to partnerships, and which govern and regulate the disposition of the partnership property, did not apply to real estates; and that in the absence of special covenants between the parties, real estate owned by partners, was to be considered and treated as such, without any reference to the partnership. The language of the Supreme Court of Massachusetts, in Goodwin v. Richardson, 11 Mass. 469, is nearly to the same effect; and it seemed to be considered that partners, purchasing an estate, out of the joint funds, and taking one conveyance to themselves as tenants in common, would hold their undivided moieties in separate and independent titles, and that the same would go, on the insolvency of the firm, or on the death of either, to pay their respective creditors at large. These latter cases, and particularly the one in New York, go to the entire subversion of the equity doctrine now prevalent in England; but the other American decisions are more restricted in their operation, and are not inconsistent with the most correct and improved view of the English law. Their object is to secure the rights of purchasers and *incumbrances without notice, from being affected by a claim of partnership rights, of which they were not ignorant.
    Chancellor Kent, also, in the same volume, page 39, note a, in noticing the decision of the vice-chancellor in New York, in the case of Smith v. Jackson, 2 Edw. 28, who adopts the opinion of the Supreme Court of New York, in Coles v. Coles and holds, that though real estate be purchased with joint funds for partnership purposes, there is no survivorship as to it; and that the share of a deceased partner, as a tenant in common, descends to his heirs, unless there be an agreement among the partners, that the lands so purchased shall be considered as personal property; and that then, upon the loot of that agreement, and not without it, equity would apply the lands to pay partnership debts; and that the wife is entitled to dower in the partnership share of the husband so descended, says, “ The decisions on this side of the question appear to me to be a sacrifice of a principle of policy, and, above ail, & principle of justice, to a technical rule of doubtful authority. There is no need of any other agreement, adds the chancellor, than what the law will necessarily imply, from the fact of an investment of partnership funds, by the firm, in real estate, for partnership purposes. If the parties mean to deal honestly, they can not have any other intention than the appropriation of the investment, if wanted, to pay the partnership debts.”
    Judge Story, 1 Com. on Equity, 624, in -treating of partnership property, says, “ A court of equity considers the real estate, to all intents and purposes, as personal estate; and subjects it to all the equitable rights and liens of the partners, which would apply to it if it were personal estate. And this doctrine not only prevails as between the parties themselves and their creditors, but, as it should seem, as between the representatives of the partners also. So that real estate, held in freehold, fee, or for the partnership, and as a part of the funds, will, upon the death of one partner, belong, in equity, not to the heirs at law, but to the personal representatives and distributees of the deceased; unless, perhaps, there be a clear and determinate expression of the deceased party, that it shall go to the heir at law beneficially.”
    After having referred to so many authorities, both English and American, to show that the absence of the agreement, that the property should be sold for the payment of the debts of the firm, makes no difference in a court of equity, and that the authorities, *to the contrary have long since been overruled in the very court where the distinction was first taken, it would seem wholly useless for me to cite others, or to detain the court with comments upon them. It is, however, worthy of remark, that the result of these authorities goes much farther than it is necessary they should go in order to sustain our defense; for they not only show that the partnership lands are to be treated as personalty, in favor of creditors, but also as between the partners themselves, and their personal representatives and heirs. In the case at bar, the question in effect is one between the complainant and the creditors of the firm, the bill showing that the entire proceeds of the lands in which dower is demanded, are necessary for the payment of partnership debts.
    It has been and probably will again be said by the learned counsel for complainant, that the land in the case of Greene v. Greene, and in some of the other leading cases cited, was acquired for the purpose of the better enabling the parties to transact the business of the firm, and not as an article of trade or commerce; and, therefore, that the principle of these cases do not ajjply to a case where the buying and selling of land constitutes a part of the business of theconcern. It is true, that in England, where real estate changes owners much less frequently than in, this country, there is, perhaps, no such thing known as partnerships formed for the purpose of buying and selling lands. But, in this country, where land is an article of trade and commerce, where it passes from one to another with almost as much facility and ease as personal estate, it is otherwise. Where is the difference in principle in the two cases ? In the first case, it is held to partake of the nature of personal estate, because it is acquired with joint funds for use of the partners as such ; and because sound policy and justice to creditors requires that it should be treated as the other property of the firm. The same reasons apply with all their force to this case ; the doctrine is established to favor trade and commerce. But many of the above authorities, especially those from Kent’s Commentaries, the late English cases, and Story’s Equity, are of general application, and apply to all the real estate acquired by a partnership concern with its joint funds. I presume that no case can be found sustaining such a distinction ; on the contrary, I think that the general principles governing the leading cases on this subject, can be shown to have been frequently applied to cases analogous to this. Lord Eldon, in 1 Swanst. 521, before the doctrine on this subject was as *well settled as it now is, says, “ in the case of a freehold purchased by a partnership, and intended only as an article of stock, a question might arise on the death of a partner, whether it would pass as real estate or as stock — personal estate in enjoyment, though freehold in nature and quality.”
    In Robinson v. Crowder, 4 McCord, 519, it is held “ that one partner can not transfer the real estate of the firm, used for its business, by deed, unless it be in a ease in which the buying and selling of real estate is the object of the partnership. This determination shows, that where the object of the partnership is the buying and selling of real estate, the subject of their trade becomes strictly commercial; insomuch that the rule that one partner can dispose of the partnership effects, applies to real estate acquired for this purpose when it would not apply to the transfer of a single item of property acquired as a place for transacting the business of the firm. In the case oi Gilmore v. North American Land Company, et al., Peters’ C. C. 460, a general principle of law applicable to partnership property was applied unhesitatingly to a trading and speculating partnership in wild land, where 6,000,000 of acres had been acquired, by the court holding that “ a purchaser under an execution against one partner, becomes a tenant in common with the other partners, in an undivided share of the land purchased, subject to all.the rights of the other partners, and that until the partnership debts' are paid, he can have no claim, but on the separate interest of the individual partner in the residue.”
    It appears to me that the authorities place the case beyond the reach of doubt — that to give the complainant dower would be retrograding in the science of jurisprudence, and adopting an exploded doctrine of the English courts. I therefore Gan not doubt that the decision of this case will accord with what Chancellor Kent justly styles “ the most correct and improved view of the English law.”
    Van Trump, for plaintiff:
    The question is one of importance, whether considered in reía- . tion to the rights and interests of the parties, or as settling, in this state, a principle of law involving doctrines of high import in the future administration of justice; and deserves, therefore, the most careful and serious consideration. That dower is an estate highly favored in law is a proposition, which, at this day, needs the ^citation of no authority to sustain. Favorabilia in lege sunt, viti, fiscus, dos libertas, was an acknowledged maxim of the courts; and is frequently cited by the old writers and reporters of the common law. As an estate, considered either at law or upon principles recognized in equity, it is deeply entrenched within the great principles of moral and social obligation; and the defendants will have to show a departure, on the part of the courts, from a fundamental doctrine of the common law, before they can ask from this court a decree against the plaintiff in this case. The whole reason and policy of the law is against them; and to make themselves an exception thereto, they will have to rely upon a few modern decisions in which the direct question of dower was not distinctly raised or decided. That is, in all the eases upon which they will have to rest their case, where the question was as to how partnership real property should be considered, the controversy has been, either between the real and personal representatives of the deceased partner themselves, or between them and the creditors of the partnership. Of course, those representatives stood precisely in the shoes of him whom they represented, and took the estate, if they took it at all, subject to all the incidents, and all the liabilities, which attached to and incumbered it in the hands of the deceased partner. The stream can not be higher or purer than the fountain; they could not take a better right than he had who was the source of that right. An estate can not be changed by a mere transition as to parties; it is, in itself, unchangeable; and the representatives of a deceased ancestor must receive their inheritance precisely in the same condition in which he held it. But when the right of dower is to be considered, as between the parties, quite another and a higher question presents itself. The widow of such ancestor stands independent of and above his representatives; her title being a vested, and without her consent, an indefeasible interest, from the moment of coverture, becomes consummate by and at the death of her husband, and as a legal consequence, relates back to the time of the marriage and the seizin which the husband then had. No act of his, subsequent to the marriage, can divest or defeat that interest. She is' indebted to him in no other respect, for her estate in dowery, than to the coverture and to his seizin during the coverture. Questions, therefore, between his representatives, or between them and third persons, can have no bearing upon her rights, because she is not a party thereto, and has no analogous connection with his estate. What, then, are the prominent facts *in the case now before us, which distinguish it from all the cases where the question has been agitated as to how real estate, held in partnership, shall be considered ? It is important to mark these distinctions with due particularity. In the first place, it is admitted that 'Williamson and Hampson, who composed the partnership, were not partners, exclusively, in any particular business or special trade; that they entered into partnership, without written articles, as “builders, master carpenters, and general speculatorsand that there was no special agreement between them how the real estate so acquired in partnership should be considered..
    These facts, stated in the bill and admitted by the demurrer, it is essential to consider in order to show how this case is to be distinguished from all the cases which may be cited by the defendants as binding adjudications upon the subject of real estate held in partnership. There are, then, three distinct questions upon which this case is to be distinguished :
    1. That the real estate, purchased and held in partnership, was not necessary or intended for the prosecution 'of any particular trade or business.
    2. That the partnership was a general joint interest- or ownership of all kinds of property, real and personal; and,
    3. That there was no express agreement between the partners how the real estate so held should be disposed of at the dissolution of the partnership.
    These questions will be considered with reference to the cases applicable to them, taking the cases as they arose in order of time.
    The counsel for the defendants will attempt to show that the allowing of dower in partnership property is a hardship quoad the creditors of the partnership, and as being against what they may conceive to be the principles of justice and policy. True, this may frequently be the fact; but it is yet to be established as a sound rule of policy, that because a law may occasionally work an individual hardship, a priori the law itself is impolitic, as a general rule, and should be abolished. The hardship, therefore, of this particular case, if it is so, is a legal hardship sanctioned by the reason and spirit of law and strengthened by a high sense of moral duty. But wherein consists the hardship or the impolicy? If it is impolitic they must charge such want of policy to the general law and not to this particular species of dower. Because, if it is admitted, and it can not be denied, that the wife is dowable at common law (and our statute concerning dower is *but a special recognition of the common law) of such estates of inheritance as the husband may be legally seized of during coverture; then, as a necessary consequence of that general rule and statutory recognition, real estate held in partnership, unless, as the defendants claim', there has been a special judicial exception adopted in relation thereto, must be subjected to all the incidents of dower whenever the property itself is such an estate as the heirs may by possibility inherit. How is dower, then, in partnership property more” repugnant to a sense of right and justice than in a great variety of other instances where that estate attaches, and becomes consummate at common law? Take, for example, the doctrine of instantaneous seizin, and we shall find rules of much greater rigidity laid down by the sages of the law in support of this estate, As where land, according to Sir William Blackstone, 2 Com. 132. “ abides in the husband for a single moment;” or, as that profound lawyer, Mr. Preston, Esp. 546, interprets it, where he has seizin for an instant,'“ beneficially for his own use,” the title to dower shall rise in favor of the wife. Thus, where lands descend on a man who is married, and a stranger enters by abatement immediately after the death of the ancestor, there the wife of the heir shall have her dower, and yet the husband has merely a seizin in law, and that for an instant only, for the abatement divests it from him.- Perk. 372. This might work an extreme hardship to an innocent purchaser without notice. So, in the case of father and son, joint tenants, who were hanged out of one cart, where the question depended upon the priority of their deaths. C'ro. Eliz. 503. And even where a husband tortiously gains an instantaneous seizin, as against the person benefited by and deriving an estate in virtue of such tortious act, the wife is entitled to her dower. W. Jo. 317. It is not to be supposed, it is true, that modern courts will adhere inflexibly to the rigid doctrine of stare decisis; but we have a right to expect, when a rule of law has been once deliberately and firmly settled, that they will not disturb it unless for reasons the most satisfactory and unimpeachable
    It is proper, here, to take a view of the 'decisions in England upon the question of real estate hold in partnership, and see how-far and in what respect they will apply to and govern this case. I shall consider them' in the order of time in which they arose, without any regard, for the present, to the relation in which they may stand to the three distinguishing characteristics of the case now before the court. And it may not be amiss to notice what ^otherwise might appear as prima facie against the estate of dower in partnership property, that the reason why this question has not oftener arisen in England as to lands held in partnership is, that the practice of substituting an estate in jointure in lieu of dower incumbrances, has almost entirely excluded dower» as an estate de facto, from the English law. In every case, however, where the question has been raised, dower has been decreed. It will be seen, from the most careful examination of the English cases, that they are to be distinguished from the case at bar upon a number of distinct and material points; and, first of all, is the extraordinary fact that, so far as the decisions in favor of considering real estate held in partnership as personalty are concerned. there is not a single case in which the abstract question of dower has been raised. As between the real and personal representatives of a deceased partner, it is a matter of but comparative insignificance how such estate should be treated. It is an issue which does not reach the whole question of estate, inter partes, where the right of dower is concerned. It is but a question as to which of two channels it shall take to reach the same destination; because, as between the representatives alone, be it decided as it may, the ultimate destiny of the interest in such estate, in most cases, would be the same. Or, indeed, as between the creditors of a deceased partner and his representatives, the question is not very materially varied; for in that case it is but a question whether those creditors shall have a direct recourse upon such estate, unfettered by other rights, or indirectly by its passing to the representatives, subject to their incumbrance. But dower is an interest paramount to all these considerations. It stands supported and protected by its own inherent independent character, unaffected by any such derivative incidents as attach to a descendible estate at law.'
    The first case in England in which the question was decided as to what character partnership real property should take in the classification of estates, was that of Thornton v. Dixon, 3 Bro. C. C. 199, A. D. 1791. That case came .up by bill in chancery, upon the following state of facts: Joseph Dixon and two other persons, being seized in fee of a certain tract of land, called Broadmoor, entered into partnership for the term of twenty-one years as paper-makers, built mills thereon, and declared the uses of the land to the use of themselves in fee as tenants in common. Three years thereafter they took in four new partners, jointly with the previous firm, in different proportions of interest; with *a covenant, on the part of the parties to the old firm, to stand seized of the land in trust for the entire partnership. During the second partnership, they bought a freehold messuage, with land adjoining, called Meerbeck, for the purposes of the partnership* trade. The second partnership expired by limitation; but the business was still carried on in partnership, without any subsequent special agreement. The only question was, as to the equitable quality of Broadmoor and Meerbeck, which arose upon a claim, as administrator to his wife, by the husband of one of a deceased partner’s daughters (which daughter, after her father’s death, had been admitted into the partnership, and also died, leaving her husband, the plaintiff, living at her death), to her distributable share of the whole partnership property, as personal estate. One of the defendants, the widow of said deceased partner, set up title to dower in the lands held in partnership. The heir at law of the wife of the plaintiff was also a defendant, claiming her share of the partnership lands as real estate, by virtue of such heirship; and whether the lands so held by the firm were to be considered real or personal estate, was the question for decision. Lord Thurlow gave his opinion on the case at two different times, and upon both sides of the question. His second opinion, however, was made up upon more mature deliberation, and in opposition to a previous bias of mind in favor of the other side of the question. In his first oifinion (January 21, 1791), he is reported to have said: “He had always understood that whex-e partners bought lands, for the purposes of a partnership concern, it was to be considered as part of tho partnership fund; and that, consequently, Broadmoor and Meerbeck must be considered as personal estate, and distributable as such.” The cause was then suffered to stand over, and his lordship gave liberty to ai’gue the nature of the property, if his pi’oposition on that point could not be maintained. When it came up the second time, he gave his final and corrected opinion as follows: He thought “ that had the agreement been that the mills should be valued and sold, it would have convex'ted'them into pex’sonalty of the partnership, but that the agreement in this case was not sufficient to vax-y the natux’e of the propex-ty; therefore, that after the dissolution, the property would revert in its respective nature — the real as real, and the personal as personal estate.
    Buckridge v. Ingram, 2 Ves. jr. 652, a. d. 1795. This was a case in which several questions were involved, among which the point was raised whether shares in the Avon .Navigation ^Company were real or personal estate; and if the former, whether the widow of a deceased shareholder was entitled to dower in his share or shares; and the decision of the court was, not only that the shares in such company were real estate, but that the widow of a deceased partner or shareholder was dowable thereof. After deciding that the shares were realty, the master of the rolls, Sir William Grant, thus notices the question of dower therein : “ The next question is, whether if it be so (i. e., if it be real estate), the wife of the testator is entitled to dower; and I think that question more clear than the former; for when once that is settled, dower clearly arises as a consequence.” This case must have an important bearing upon the case now before the court, unless it can be shown that there is a material distinction between a common partnership and a private corporation, upon the very question in dispute. The three cardinal distinctions between such.associations are these:
    1. That in a corporation, death or bankruptcy does not work a dissolution.
    2. There is no jus acerescendi as to property held under their charter; and,
    3. There is no individual liability, unless expressly so enacted, beyond the amount of stock subscribed.
    Will either of these distinctions reach, or in any way influence the question now before the court? It is apprehended no argument is necessary to show that, upon the abstract question of dower, these distinctions can have no applicability whatever, as to real estate thus immaterially distinguished between two kinds of partnership sustaining almost a precisely similar legal existence.
    
    Smith v. Smith, 5 Ves. 189, a. d. 1800. This was a partnership entered into by the parties, with an agreement that certain real estate, purchased with partnership funds, should be conveyed to one of the partners in severalty, in his own right, and that he should be considered as indebted to the firm, in money, for so much as should be paid for said estate. Some time afterward, a commission of bankruptcy issued against the firm jointly, and the estates so held in severalty by said partner were sold by the assignees under the commission. At the time of the sale, an agreement was drawn up between the assignees and the wile of the partner so holding in severalty the aforesaid estates, which agreement recited that she claimed dower therein ; that the purchasers under the commission required that she should release her dower and levy afine; and that the assignees, as an ^inducement thereto, proposed in lieu of dower, the sum of £330, in case it should be found that she was entitled to dower in those lands; upon the execution of which agreement, she levied the fine accordingly. The case arose upon bill by husband and wife, praying a specific performance of said agreement, to which the defendants, among other things, set up in their answer that the estates were purchased with partnership funds, and for the use of the partnership, and that dower did not attach thereto in consequence. The case was heard before Lord Bosslyn, who decided that the widow was dowable of the estates so purchased and held by the husband, expressly upon the ground of the agreement that he was to be charged upon the partnership books with the funds by which the lands were purchased. Lord Chancellor: . . . “ The distinction is, the agreement as to the purchase of these houses was specific. Upon that they never could be specifically divided, as if they were part of the partnership stock; but when they came to settle, the houses were Bobort Smith’s, and he was debtor for so much money. The whole turns upon that." This case is worthy of consideration for this reason : If the doctrine contended for by the defendants in the ease at bar be the true doctrine, then is the case of Smith v. Smith a mere nullity, and of no binding authority as an adjudged case. For once grant that all real estate, purchased with partnership funds (and whether held in partnership or not is immaterial, because it has been decided as between the partners themselves, or as between them and their creditors, that lands held in severalty by one partner,, they having been acquired with partnership funds, belong to the partnership), is,, to all intents and purposes, personal estate, distributable as such, and how does this case in 5 Yesey stand upon equitable principles? For the sake of argument, let us admit that all real property, purchased with the joint means of a partnership, is, even as against dower, but personal estate, subject to be treated as such upon agreement or without agreement between the partners; and does it not follow, ex consequent!, that the case of Smith v. Smith, sanctions and opens a wide field for the perpetration of th'e grossest frauds upon community ? If such were the law, how easy would it be to elude and bid defiance to it. How easy would it be for members of a partnership, if they wished to secure an estate in dower to their wives against law, to enter fraudulently into secret agreements among themselves, that the proceeds of the partnership should be laid out in lands as individual purchases, and debit *the amount accordingly. Will it be denied that this would be in contravention of the law,if the law is such as this court is now called upon to declare it ? It can not be. And moreover, would this view of the question, if the law is so settled, have escaped the observation of counsel so eminent as were those who argued the case of Smith v. Smith ; or have eluded the acumen of a chancellor so distinguished for legal ability as was Lord Rosslyn, who decided it? It would be doing violence to the principles of common sense, so to imagine it. One of two things must be presumed — either that the chancellor was ignorant of the law, or that the law itself did not so exist, as it is now attempted to be expounded. If the law had been such, as it is now contended that it was and is, the chancellor in that case, in conformity with established rules of equity upon analogous principles, would have followed those funds into the realty, and held the realty itself, bound in the same manner as the funds would have been had they remained, in specie, with the partnership. Upon such view of the case and the law, it would have been' his duty to have held the real property purchased in the name of Robert Smith, not only as personal estate, but as a resulting trust in favor of the partnership, and thus have barred the widow of her dower therein. But Lord Rosslyn took another and a better view of the subject; and jnforentially, if not directly, sustained the doctrine, that, so far as dower is concerned, nothing short of an antenuptial and ex~ ■press agreement can change real estate held in partnership into a personal distributable fund.
    Ripley v. Waterworth, 7 Ves. 425, A. D. 1802. This case grew out of a contest between the real and personal representatives of the testator. It is, shortly, this : Mears, the testator, was seized in fee of three eighth undivided parts of a freehold estate and sugar houses. Those three eighths, together with the remaining five eighth parts, were conveyed to the use of such persons as Waterworth, the testator, and Margaret Woods should appoint; and as to the testator’s proportional shares, to his own use, for the purpose of prosecuting the trade in partnership with the said Waterworth and Woods; and, in default of such appointment, •upon the decease of the shortest liver of the three copartners, or upon the partnership being otherwise dissolved, to sell the sugar-houses and premises, and to apply the proceeds thereof to the discharge of incumbrances and debts, and the residue to be.divided ratably among the partners .or their representatives. *The ■deed of partnership also contained a proviso, that in case there •should be no appointment, then, upon the decease of the shortest liver of the three copartners, the two survivors, or either of them, •might elect to take the share of the deceased partner, as well of the sugar-houses and premises, as of the implements, utensils, and fixtures, at certain prices. No appointment was made by the three partners; and, after the testator’s death, the defendant gave notice that he elected to become the purchaser of the testator’s three eighth parts of the premises; and he purchased them accordingly. The case came up before Lord Eldon, upon exceptions to the report of the master, and the question for his decision was, as to the nature of the testator’s interest in the freehold estate and sugar-houses. Lord Chancellor: “Upon the subject of the first exception, I am strongly inclined to think this is personal estate; being of opinion that upon the true construction of the deed, the parties had contracted with each other, that when the partnership should be determined, whether by the act of the parties ■or of God, the property should be converted to all intents and purposes.” . . . “This is a case in which, not an individual gives directions by will or other instrument as to his individual property, but the persons are contracting with each other as to what is to be done with property of a very peculiar nature. By the deed, it is to be considered part of the capital or stock in trade. The subject, I admit, is real; but combined with a great number of fixtures, utensils, and implements; many of which are personal. There being three parties, it was rational they should so engage: and that, when the partnership should cease, the property should, by mutual agreement, be disposed of, as should be most beneficial to all of them.” . . . '“ The question is, whether three persons engaging 'in a partnership of real property, such as this, and -.to be applied to such purposes, might not, and did not, contract, that if the partnership should be dissolved by the act of all, or the death of one, 4t •-should all be sold tog ether, for the purpose of producing more benefit upon the sale.” I shall notice this case, with others, in a brief summing up hereafter.
    Bell v. Phyn, 7 Ves. 453, a. d. 1802. It may be noticed as a most singular coincidence that this case was decided by Sir William Grant at the rolls, on the same day that Lord Eldon decided the case of Ripley?;. Waterworth. This is a strong case; and, although Mr. Eden, in his note to Thornton v. Dixon, 3 Bro. C. C. 200, intimates that its authority is shaken, *if not entirely overruled, I shall show that it stands unimpeached unless some very loose and general subsequent dicta are sufficient to overthrow it. The case involved the double question: 1. As between the real and personal representatives themselves; and, 2. As between the widow and the representatives collectively, upon a claim of dowei’. The real estate in question was partnership property, bought with partnership funds, but without any agreement as to how it should be considered upon a dissolution of the partnernership. The lands, however, were sold, and the question was raised by the bill of a legatee, praying an account of the personal ■estate, and claiming the testator’s share of the proceeds of said partnership lands as passing under the will. Sir Wm. Grant: . . . “If this was partnership property, there was nothing done by the partners to alter the nature of it. The sum, therefore, for which the estate sold, must be considered of the nature of real estate; and there must be a reference to the master to settle the •widow's dower.
    
    Balmain v. Shore, 9 Ves. 500, a. d. 1804. The master of the rolls, in this ease, held that the circumstances of a china and pot manufactory, and other premises, being purchased by a partnership of potters for the purpose of carrying on their trade, with covenants against alienation and partition, was insufficient to vary the nature of the property — that is, that it could not be thus changed into personalty, but must descend and have all the incidents of an estate at common law. It was a partnership entered into by the parties for the term of ninety-nine years, and the articles contained covenants against alienation or partition: The case stood upon a bill filed by the devisee of one of the parties (he having devised all his personal estate to said devisee) against the heir at law of the devisor and the remaining partners ; and the question was, whether the realty, held in partnership, passed as personalty by the will, or descended as real estate to the heir at law. Master of the rolls, after deciding several unimportant preliminary questions : “Another question is, whether the plaintiff is-not entitled likewise to a proportional share of the land purchased for the use of the partnership; that is, whether, being purchased for that purpose, it is not to be considered personal property? After the ease of Thornton v. Dixon, that is not a question that admits of argument, for this is rather a stronger case for the heir than that. There it was purchased generally, applied to the uses of the ^partnership, and, apparently, was purchased for no other end. Yet it was considered to be real estate by Lord Thur-low.” . . . “ Tbe question for my decision is only, whether I , can declare this real estate to be personal property, to go to the-shares of the partnership. That, 1 am of opinion, I can not declare. , The bill must be dismissed, so far as it seeks a declaration of the plaintiff’s right as to the third part of the freehold premises.”
    Thus far, as to time, it will be seen that there can be no doubt how real property, held in partnership, was considered in England. The decisions clearly sustain this position, that where land .is held in partnership, purchased with .partnership funds, without any express agreement that it should be part of the stock in trade; or where its possession was not essential to the prosecution of the partnership trade, it should retain its real character, and descend accordingly. It is, however, now contended that these decisions have been, in effect, overruled by the subsequent adjudications of Lord Chancellor Eldon; and the cases of Ripley v. Waterworth, 7 Ves. 425 (already considered in its order of time); Selkrigg v. Davies, 2 Dowl. P. C. 230; Townsend v. Devaynes, Mont. on Part. App. 97, and Crawshay v. Maule, 1 Swanst. 495, will be cited in proof of this position.
    The opinions of so distinguished a lawyer as Lord Eldon, when delivered upon points in issue, are entitled to have great and commanding influence; but mighty as was his juridical genius,, profound as his legal attainments unquestionably were, it can not be denied that his lordship frequently decided too much in cases -upon a given state of facts; that is the grasp and comprehensiveness of his mind were 'such, that it often led him into points, or rather tendencies, of a case, which were not at issue at bar, and consequently unargued and uninvestigated, if we may be permitted to except his own ex parte examinations, which have given rise to his numerous, if not unsatisfactory dicta, as found in the books •containing the reports of his decisions. But let us examine these cases, and see if even they will sustain the doctrine now contended for at bar, and defeat the claim of this petitioner, under the peculiar circumstances of her case.
    
    The book .in which the case of Selkrigg v. Davies is reported, I have been unable to lay my hands upon, and will have to bo content to take it as noticed in the latest English case upon *thé subject, Randall v. Randall, 7 Simons, 271. The particular •facts upon which that case arose are not given in that citation, but enough can be gleaned therefrom to know that it was a question as to real estate held in partnership, which estate was necessary for the prosecution of some joint partnership trade. The observations .of the vice-chancellor upon Selkrigg v. Davies, as contained in his decision of the case of Randall v. Randall, are worthy of special consideration. I have italicised the remarks of Lord Eldon, as quoted and commented upon by the vice chancellor. The vice-chancellor: “Lord Eldon, in the course o'f the argument of the case, threw out a proposition which is too general. His lordship is reported to have said : “ M.y own individual opinion is, that all property involved in a partnership, ought to be considered as personal.” The limitation of that proposition is to be collected iroin the report of the case, by which it appears that the proposition was laid down with reference to a case of partnership in trade, between persons who held land for the purpose of the trade. That that limitation ought to be put upon the proposition, is evident from what Lord Eldon says in the subsequent case •of Crawshay v. Maulé, 1 Swanst. 508. “ It has been repeatedly decided that interests in lands purchased for the purpose of carrying on a trade, are no more than stock in trade. I remember a case in the House of Lords, about three years ago,” (Selkrigg v. Davies), “ in which the question was much discussed, whether, when partners purchase freehold estate, for the purpose of trade, on dissolution, that estate must not be considered as personalty, with regard to the representatives of a deceased partner.” So that Lord Eldon has put an interpretation on his own words, which, taken by themselves, go farther than HE MEANT THEY SHOULD GO.”
    Townsend v. Devaynes, 1 Mont. on Part. App. 97. This case has never been officially reported; and its accuracy is more than, apocryphal. It is said of it, arguendo, in the case of Phillips v. Phillips, 1 Myl. & Keene, 649. that there existed nothing but a brief statement of the case as extracted from the pleadings, and that it did not appear whether there was or was not an agreement between the partners. Mr. Bicbersteth : “ It was a mistake,, therefore, to suppose that Lord Eldon’s decision in Townsend «. Devaynes, settled the question as to the conversion of such property, independently of contract between the parties. Mr. Montague mentioned that he was unable to decipher the *notes-of the argument-upon the brief from which he had extracted the statement, and there was no judgment; so it was impossible to-know upon what ground the decision went.” This statement of Mr. Bickersteth as to the character of Mr. Montague’s note of the ease of Townsend v. Devaynes, was not contradicted by the opposite counsel; it is, therefore, to be inferred that his statement was-correct; 'and that the point upon which that case was really 'decided is not sufficiently clear to make it a binding authority. Mr* Jacob, also, in his edition of Roper on Husband and Wife (vol. 1>-p. 346), accounts for the decision, on the supposition that there was-an agreement between the parties, for the conversion of the property into personalty. “ At all events,” says the vice-chancellor, in Randall v. Randall, 7 Simons, 271; 10 Cond. Eng. Ch. 59, “that case decides only, that where parties in a trade purchase land for-the purpose of the trade, it shall be considered as personal estate.’’ These are the two cases — or rather, not the cases themselves, but-the dicta to which they gave rise — which are said to overrule a current of decisions running from 1729, the time when Lake v. Craddock, 3 P. Wms. 158, came up to be heard before Lord Chancellor King, to 1804, when Balmain v. Shore, 9 Ves. 500, was decided.
    There remain for us to notice but three more cases, decided in-England, which have any bearing upon the one now before the-court, to wit: Phillips v. Phillips, 1 Mylne & Keene, 649; Broom v. Broom, 3 Myl. & Keene, 443, and Randall v. Randall, 7 Simons, 271, the latter of which, decided so lath as 1835, is so directly in point, as to place the right of Mrs. Sumner to dower iñ lands held jointly.by Williamson and Hampson, in the lifetime of Williamson, beyond the possibility of a doubt.
    There are two other cases in Which(.the question of partnership concerning realty arose: Crawshay v. Maule, 1 Swants. 495, and Fereday v. Wightwick, 1 Russ. & Mylne, 45; but as they were only leasehold, interests in lands, they can have-but little application to the case at bar. ,
    The ease of Phillips v. Phillips, 1 Mylne & Keene, 649; 7 Cond. Eng. Ch. 208, is much relied upon by the counsel for the defendants; but it is so clearly distinguishable from the case at bar, upon a variety of important points, that it only requires to be-stated, to show its entire inapplicability. The precise point decided was, that real estate, purchased with partnership capital, for the purposes of the joint trade, is personal estate in respect of the share of a deceased partner, and retains that character, as between *his real and personal representative, he having expressed a desire in his will that it should be converted into personalty. The testator, after devising all his real estate, to his executors to be sold, uses the following language: “ And my will further is, that the moneys which shall arise by and from the sale or sales of my freehold and copyhold estates, shall be deemed to be part of my personal estate; and that the clear yearly rents and profits of the said freehold and copyhold hereditaments, in the meantime, until the same shall be sold, or of so much thereof as shall be remaining unsold, shall, from and immediately after my decease, be deemed part of the annual income of my personal estate.” It is true, the real property, purchaséd with the partnership funds, was after-acquired estate, as regarded the time of the execution of the will of the testator; and as such, being of freehold interest, could not pass to the legatees. From the fact, however, that the partnership real estate was purchased immediately after the date of the will, and there being no exception added by way of codicil, as to said subsequently acquired property, the intention of the testator is clearly inferable that it was to be considered as per-" sonal estate, although it could not legally pass in accordance with such intention. The fact, then, as to how the property was'to be considered, is inferentially established by the will, notwithstanding the law would not permit it to vest in the person designated by the testator. But how far this may have influenced the court in their decision, we have not the means to know; neither do I press the point very strongly, that it should have been so influenced. There is enough in the case independent of this, widely to distinguish it from that' now before the court; because, in this case, as in all the rest heretofore cited, the property was purchased for the purposes of the partnership trade.
    
      Broom v. Broom, 3 Mylne & Keene, 443; 9 Eng. Ch. 118. This case only decides that real estate, purchased with partnership funds, for the purpose of carrying on a partnership trade, is to be considered as personalty, as between the real and personal representatives of a deceased partner.
    Randall v. Randall, 7 Simons, 271. This is the last English case decided upon the subject, and as it will undoubtedly have, one way or the other, a great influence in deciding this case, it is important to state it somewhat particularly. In 1792, two brothers, named Randall, were entitled by descent, as tenants in common with two other heirs, to certain freehold estates, and agreed to become copartners in the farming business, including the growing of hops, and subsequently extended the partnership to the making of malt. They also, as partners, entered into a contract with the navy department for supplying 'the navy with biscuit. The farming and malting business were carried on upon the family estate, and the biscuit business partly on the same estate and partly on the separate estate of one of the partners. In 1802, the partners purchased, of another brother, his share of the family estate, and paid for it out of the partnership funds, but-no conveyance was executed to them. The next year they purchased of a Miss Long, other real estate, paid for it in like manner, took no conveyance, and used the land for agricultural pur? poses. In 1808, in pursuance of an act of parliament for inclosing lands in their.parish, certain allotments were made to said partners, generally in respect of their freehold land in the parish. The expenses of fencing, embanking, cultivating, and improving these allotments, were also paid- out of the funds of the partnership. Other real estate was also brought by the partners, paid for out of the partnership funds, and used for agricultural purposes. Some of these estates were let to tenants; and the rents, and all other receipts and payments in respect of the rest of the estates, were regularly entered, by the partners, in the books of the partnership, and were carried to the account thereof. The malting business ceased in 1807; but the partnership in the farming business was continued until 1829, when one of the partners died intestate as to his real estate, leaving another brother his heir at law; and by will gave his personal estate to the plaintiff. The bill prayed that it might be declared that one undivided moiety of the estates which had been purchased by the partners, formed 
      part of the personal estate of the deceased partner, and that the defendant, as surviving partner, might be declared to be a trustee, of such moiety, for the plaintiff, as the personal representative of the deceased partner. Yice-chancellor Sir Lancelot Shadwell, ■after ably reviewing and distinguishing all the cases upon the question : . . . “ Taking, then, the law to be as it is to be collected from the cases to which I have referred, the question is, whether the real estates in this case are to be considered as personal property. Now it does not appear that the parties purchased any part of the land for the purposes of their partnership in trade. Having, in the first instance, agreed to carry on the .farming business in partnership, they subsequently agreed to become copartners, first as malsters, and afterward as biscuit-makers. The first purchase that they made was of an undivided *fourth-part of an estate of which they previously had a moiety as tenants in common. It would, however, be strong to cay, that because these parties, being partners in the farming business, which is not a trade, happen, collaterally to that business, to carry on a trade, therefore, the nature of the property which they so purchased is to be changed. And, consequently, I do not think that it would be right to hold that the one-fourth of the family estates, which Richard and William Randall purchased of their brother James, is to be considered as partaking of the nature of personal estate. The next estate was purchased of Miss Long; but it was never used for any of the purposes of the partnership trade; and as the judges who decided the cause to which I have alluded, have expressed their opinions to be, that land can not become personal estate, unless it is purchased for the purposes of the partnership trade, the land purchased of Miss Long, although it may have been paid for out of the partnership capital, ■can not be considered as partaking of the nature of personal estate. . . . The fair inference to be drawn from the facts of this ease is, that the trade was collateral to, and arose out of the principal business of farming; and there is no reason to conclude, from any of the decided cases, that any of the property to which this suit relates ought to be considered as personal estate.”
    I have now examined all the cases which have arisen in England upon the subject of partnership real estate. The conclusion to be drawn from them is, that if partners, carrying on a trade, purchase real property, essential to the very prosecution of such trade, such as sites for mills, etc.; or if there is an express contract- or agreement between them, that the lands so held shall be converted into the stock of the partnership at its dissolution, the better opinion seems to be, that it will be changed into personal estate, and form part of the common distributable fund of the-partnership. But if, on the other hand, the possession, by partners, of such real estate, is in no way connected with the very business of their trade; or, as it is happily expressed by the vice-chancellor in Randall v. Randall, if- it is only collateral to, and not necessarily growing out of their trade, .the authorities are-clear and conclusive, that it retains its original character, and descends accordingly. This view of the subject is not a mere infer■ence, deducible from the general tenor of the reported decisions— it is the precise point upon which all the cases have turned. Lord Eldon himself — sustains this position in its fullest*extent. He says, in so many words, that he decided the case of Ripley u. ^Waterworth upon the ground that the partners had contracted with each other that the real estate held in partnership should, at the dissolution of the partnership, be converted into personalty. I have already shown that his opinions, in the other cases which came up before him, if he in fact ever expressed such opinions, were mere dicta, so far as they declare that all partnership property should be held to be personal estate.
    There is another fact which may not be unworthy of consideration in this place. Lord Eldon was lord chancellor during the-whole period in which Sir William Grant presided at the rolls. Now, if the opinion of the profession had been that the decisions of the master of the rolls were erroneous in the case of Bell v. Phyn and Baldwin v. Shore, as intimated by Mr. Eden in his note to Thornton v. Dixon, is it not fairly presumable that appeals-would have been taken to the lord chancellor ? And if the lord chancellor had, in reality, entertained views adverse to the doctrine which those cases establish, would not the profession, in all probability, have been cognizant of the fact; and whether they were so cognizant or not, anterior to the decision of Ripley w. Waterworth, would not Lord Eldon’s decision in that case, if it is indeed opposed in principle to the prior decisions, have given them the strongest inducement to take up the case of Bell v. Phyn, decided as it was, on the very day on which Ripley v. Waterworth was heard and determined? It is, moreover, a most remarkable fact, that Lord Eldon, in his subsequent decisions,, never even so much as alludes to the cases decided at the rolls. If he entertained the views which are ascribed to him, would ho-not have remarked upon those eases, and pointed out and exposed their fallacy ? It is not only very proper, but it is also his oficial duty so to do; because the decrees at the rolls are reported in-connection with bis own decisions, and unless corrected, when relevant for him to do so, they must be received with the same respect as is accorded to his own final adjudications. From the whole view of the subject, then, it is not a legitimate presumption to suppose that Lord Eldon entertained other views upon this question than what are strictly in accordance with the acknowledged opinions of Lords Thurlow and Rosslyn, and Sir-William Grant. At any rate, it will require something more than, the mere imagination of learned and ingenious counsel to establish it.
    This being the law in England, let us now see how far it has been adopted in this country, and whether it has been, in any ^degree, changed or modified. I shall consider the American cases, also, in their order of time. And I shall cite the first case, not from any very close analogy which it bears to the case-at bar, upon the facts, but to show, constructively, the opinion on this subject, of one of the greatest lawyers that this or perhaps any other country has ever produced. I allude to Chief Justice Parsons, in the case of Pitts v. Waugh and Greeley, 4 Mass. 424, a,d. 1808. Thq plaintiff in that case brought an action on the case-against the defendants, as partners in merchandising and in the-sale and purchase of lands. It appears from the pleadings, that Waugh executed a promissory note to the plaintiff, signed by himself alone, as an individual; upon which note suit was brought jointly against the defendants, as partners. At the trial, the plaintiff offered the note in evidence, and further offered to prove that-at the time of making the note, the defendants were partners, and that the note was executed on the partnership account, for lands-purchased for the benefit of the partnership. The court refused to admit either the note or the evidence, to which the plaintiff excepted. Parsons, upon the exception: “By the law-merchant, a-man may be answerable as a dormant partner, on a contract made-by the partnership, of which he is in fact a member. But this law is confined to trade and commerce, and does not extend to the-sale and purchase of lands.” . . . “However, to prevent mistakes, we repeat, that the law-merchant does not extend to spee•ulations in lands.” I only seek to make this case relevant to the ■one at bar by construction — and in this way: What does the chief justice mean, by saying that the lex mercatoria does not apply to speculations in land? Does he mean to confine his remarks to that particular portion of the law-merchant which relates to dormant partners; or does he mean a more general application, and wish, to be understood to say, that the law-merchant, as a system, does .not apply to speculations in real estate? I confess it strikes me •that he moans the latter; because Judge Parsons, as a solemn expounder of the law, generally meant precisely what he said upou •asubject. And if he meant to be understood that the law-mcrchant .generally did not apply to dealings in land; wherein consists the difference, upon principie, between that and the law of partnership ? Although the law-merchant is a customary law, yet, equally with the law of partnership, it derives its existence from, and is sanctioned by, the general law; so that no mere conventional rule adopted by merchants, in regard to *their transactions as merchants in real estate, could impart to such transactions a. different character from that put upon them by the law of the land-The law-merchant, like the lex et consuetodo parliamenti, is indeed only a portion of the general law. Mr. Justice Foster, 2 Burr. 1226, declares it to be part and parcel of the lex non scripta itself. It is clear, therefore, that no mere special custom among merchants is the ground of Judge Parsons’ decision. It is his interpretation of .a general law for the regulation of trade and commerce, and it is apprehended that any other general law connected with trade and commerce, the law of partnership for instance, would have received from this distinguished civilian the same interpretation, had it been ' an issue for his judicial opinion. Goodwin v. Richardson, 11 Mass. 467, A. d. 1814: This case decides that where two parties buy land with partnership stock, and there is nothing more done in the way .of agreement between them, how it is to be held, it is not in law considered as partnership property; that -is, it is not subject to the rules of law governing partnerships generally.
    Coles v. Coles, 15 Johns. 159, a. d. 1821: This was an action of assumpsit, by the administratrix of a deceased partner, against the surviving partner, for money had and received, upon a sale of real estate belonging to the partnership, sold jointly in the partner’s lifetime, the proceeds whereof were converted to the use of the-defendant. The property so held in partnership,, and sold by the firm, consisted of a distillery and two lots, and the business of the partnership was continued up to the time of the sale. The court decided that “when real estate is held by partners for the purposes of the partnership, they do not hold it as partners, but as* tenants in common; and the rules relative to partnership property do not apply in regard to it. There may be special covenants and agreements entered into between partners, relative to the use and. enjoyment of real estate owned by them jointly, and the law would be'considered as held subject to such covenants; but nothing of that kind appears in the present case; and in the absence of all-such special covenants, the real estate owned by the partners must-be considered and treated as such, without any reference to the partnership.”
    McDermott v. Lawrence, 7 Serg. & Rawl, 438, a. d. 1821, The facts of this case are not necessary to be stated. But the-opinion of the court, as delivered by Chief Justice Tilghman, is-^important to show the estimation in which the English cases, and particularly the decisions of Lord Eldon, were held by that eminent judge. He says : “How far land, conveyed to partners as tenants in common, shall be considered as partnership-property, and whether it changes its nature, and becomes personal estate, has been the subject of discussion in England and some of the states. Land, except for the purpose of erecting necessary buildings, is not naturally an object of trade or commerce. Yet there is no doubt that, by the agreement of the parties, it may be brought into the stock, and considered as personal property, so-far as concerns themselves, their heirs, and personal representatives. It was so decreed by Lord Eldon, in Ripley v. Water worth 7 Ves. jr. 424.” Speaking of Thornton v. Dixon, 3 Bro. Ch. 199, he says: “ This is a very strong case, as the mills were used in the partnership business.” And alter considering all the English cases, he makes this remark: “I know of no other English cases which bear on this subject, and these were in dispute between the-heirs and personal representatives.” The judge marks this sentence in italics, just as it appears here, thereby clearly sustaining the-distinction which I have already taken in regard to the parties to-most of the eases, to wit: that the question as decided between the representatives of a deceased partner, or between them and-. third persons, does not, ipso facto, settle, or in any way touch the ■question of dower in partnership lands.
    After applying all the authorities to the case then at bar, .Judge Tilghman thus speaks of the decisions of Lord Eldon : “Even Lord Eldon has not considered the property as personal, ■unless it was made so by the agreement of the partners.”
    Greene v. Greene, 1 Ohio, 535, a. d. 1824. It is, in my estimation, unnecessary to enlarge upon this case, inasmuch as it is distinguishable from the case at bar upon the two important questions which have governed the whole current of English decisions, viz: that there was not only an express agreement between the partners that the realty held in partnership should be converted into personalty, but the lots in dispute were bought for partnership purposes, and were essential to the prosecution of their partnership trade. The opinion of the court, as delivered by Judge Sherman, is an able exjjosition of the law relating to partnerships generally, and contains the following accurate and forcible condensation of the whole doctrine of partnership real property, as drawn from and sustained by *the English ■decisions: “Where-real estate necessary or convenient for the conducting a trade is purchased by a partnership, and paid for by their joint funds, under an agreement that they shall, at the termination of the partnership, be sold for the payment of debts, and the residue of the partnership effects are insufficient to discharge the debts, that the land so purchased, whether conveyed to one or all of the partners, is not subject to dower of the widow •of a deceased partner.” That this case of Greene v. Greene is a .sound and correct decision, upon its own particular facts, there -can be no doubt. It is one of Lord Eldon’s eases of “contract;” for the point upon which the learned counsel for the defendants most relied, and upon which the whale reasoning of the court was based, was the agreement between the partners in their partnership articles. It is somewhat strange -that the Important fact that the partnership contract was antenuptial, so far as the •coverture of the demandant was concerned, does not. appear-in the-statement .of-the case. :This fact,-however,-is fairly presumable; -otherwise ¡the authorities cited upon that point were entirely irrelevant. It is clearly -manifest, -too, from the> language of the court: “If it be considered-.as-real estate,-it.was acquired subject íto a condition-or agreement that qualified -the-estate-of the husband and the wife, when there is an agreement, unless it were executed after her right attached,” etc. But the learned counsel for “the defense in the case at bar will argue and attempt to show that where there is no express agreement to that effect, the law will very kindly step in and imply one as between partners holding real estate jointly as partnership property. That this may be the fact, as between the partners themselves, unconnected with any other right, it is not my wish or design to controvert; neither has it anything to do with this case, because the law never raises .an implication, adverse to a pre-existing right, when the person in whom such right is vested is not a party to the acts upon which the implication is raised. The law, therefore, by no implication, as between other parties, and upon other merely collateral facts, can affect a right already existing by its own authority. The law, in its implication, like in everything else, is always consistent. It does not create an express right to-day, that it may destroy it by implication to-morrow. That would be a kind of legal suicide. But it may be contended that there is no preexisting right in favor of the wife, as to lands held in partnership, because the implication of law upon *the agreement of the partners attaches eo instanti with and overcomes her right to dower therein. But is this true? At the time of the marriage of husband and wife, there exists an implied contract (for Sir .Joseph Jekyll-and other eminent judges have held that dower arises ex contractu as well as by act of law) that the wife shall have dower in all estates of inheritance of which the husband shall be seized during coverture. This being admitted, is it competent for such husband, being a party to this implied contract with his wife, subsequently to enter into other agreements with other persons, by which implications are to be raised defeating a prior legal implication upon his own acts? Such an idea would be absurd; if it is law, it is not logic.
    Sigourney v. Munn, 7 Conn. 11, a. d. 1828: This was a bill filed by one partner against the mortgagee of the other partner, who held a mortgage on the undivided half of the real estate of the partnership, which real estate consisted of lots upon which were built the storehouses in which the partnership business was carried on. .Judge Hosmer, in delivering the opinion ot the court, classified the cases upon real estate held in partnership under three distinct Reads. It is-only-necessary, for our purpose, to notice his first class, which is analogous to the case now at bar, in all its bearings, and from which he distinguished the case then before him. in the strongest possible terms. He thus describes the first class : “ The first of them exists when partners invest part of their capital in land, without any reference to the accommodation of the partnership business, and without any special agreement concerning the use of the property. This class,” says the judge, in applying it to the ease then before him, “is so distinct from the case before us that to discuss it would be useless.” He then concludes an able and discriminating review of all the cases with the following observation upon the case then before the court: “I think there ■ exists no reasonable doubt that the land in question, put into the company stock in part, and partly bought for partnership purposes-with partnership funds, and the whole under an express agreement that it should be partnership property must, in equity, be considered in this light.”
    There are a number of other recent American cases upon this-subject, to'the reports of which I have not had access. The case of Smith v. Jackson, 2 Edw. N. Y. Ch. 28, cited in 2 Barb. & Harring. Eq. Dig. 353, goes so far as to decide that lands *held in partnership, for partnership purposes, are real estate, and descendible as such. It’is said, also, that the ease of Yeatman V-Woods, 6 Yerg. (Tenn.) 20, sustains the same doctrine. These cases are cited merely to show that some of our courts, and of high authority too, are disposed to confine the operation of commercial law upon real estate to even narrower limits than the English decisions have done.
    The limits of this argument, already too far extended, will not permit me to speak in detail of the facts, if indeed it were necessary, by which the case now at bar is clearly and unequivocally distinguished from all the cases which have been noticed. It is-enough to say, that in this case the lands purchased and hold by the partners, were in no way connected with or incidental to. their partnership trade. The fact that two individuals happen to-carry ón a trade in partnership is no good reason why they should not be permitted to hold real estate jointly, just in the same manner that any other two individuals may hold such estate who do not happen to be partners in a trade. And although the learned counsel for the defendants will labor to impress it upon the court, that the granting of dower in such property would be inter apices
      
      Juris, yet we contend that it is consonant with the strictest principles of justice as well as of law.
   Lane, J.,

delivered the opinion of the court:

The point arising in the present case affords an example of the changes by which the law accommodates itself to the varying circumstances of the age.

No distinction was made by the Roman law between real and personal estate; both were subject to the same condition of descent or other legal disposition. When feudal principles predominanted, land, the reward of the soldier, or the means of organizing the military force of the government, was withdrawn, in a great measure from the control of the occupant or from liability' to his debts, and held subject to the rule of descents only. The efforts of centuries have been directed to the emancipation of the realty from these restrictions, and its inviolability has been so impaired by subtle contrivances, by open or indirect attacks, by the wearing out of ancient usages, and by the adoption of new principles, that it may now be molded to most exigencies, and the dominion of the owner over it is nearly as complete as over chattels.

* Wherever a proper partnership subsists, the partnership debts impose a lien upon the partnership property, both as between the partners themselves and the creditors and the partners, or their representatives. 6 Ohio, 113. This lien arises at the acquisition of the property, from the relation itself of partners and is liable to be defeated by a bona fide sale only.

If lands can .be holden in partnership after the same rules as personalty, the right of the dower must be subordinate to this lien. For her estate is derived from her husband, and is subject to all incumbrances existing against it, at the acquisition of his title. 1 Ohio, 542.

In the earlier stages of the common law, no proper partnership in lands could subsist; but as social arrangements became more complex, land was necessarily used in partnership purposes, firstly as auxiliary to the general objects of the association, or received for debts, and more lately as direct capital stock. Numerous cases upon this subject are cited in the arguments. They show that the same rules which affect chattels have gradually been extended to lands held for partnership purposes; that wherever partners manifest their intention to hold lands as partnership stock, either by •express convention, or by their course of dealing, it will be treated .as, such in all respects by courts of equity. If such be the law in England, and in the elder states, its policy is more imperative ¡here, where real estate is so much the subject of traffic.

Demurrer sustained; bill dismissed without costs.  