Du Bree v. Albert , 100 Pa. 483 ( 1882 )

Mr. Justice Mercur

delivered the opinion of the court October 5th 1882.

The main contention is, whether this action of ejectment will lie for the enforcement of the plaintiff’s right. It was brought to enforce payment of purchase money due from defendants under articles of agreement of June 1st 1874. They were . entered into between Kessler and Du Bree (whose right is now in 'the plaintiff), of the first part, and William Albert & Bros, (that is, the three Albert defendants), of the second part, “ both parties being members of the Woodland Fire Brick Company, of the firm of Kessler, McMath "& Co.” The party of the first part agreed to sell and convey “ all their one-fourth interest in the 'Woodland Fire Brick Company, being the same as bought of "James and Thomas Hammond; also their three-eiglitlis interest in the store of Kessler, McMath & Co., consisting of the amount of stock which has been put in, as well as the proceeds up to date. And they do hereby transfer and set over to the party of the second part all their rights and claims in stocks, notes, and book accounts belonging thereto. In consideration of a specific sum, which they agreed to pay, and their further agreement to settle all the interest, whether assets or liabilities, of the party of the first part, in the one-fourth interest in the Woodland Fire Brick Company, and the three-eighth interest in the store of Kessler, McMath & Co.” Although it does not appear on the face of the agreement, yet in fact the land now in contention was a part of the property of the Woodland Fire Brick Company, and which, by virtue of this agreement the plaintiff claims to recover. In February, 1871, the whole land, of which thé plaintiff claims the right to recover the undivided fourth, was conveyed to John McMath, Isaac Eeese, Benjamin F. Eeese, ■ James Hammohd, William Albert, George Albert and Henry 'Albert, as copartners, composing the firm of the Woodland" -Fire Brick Company, to be held by them as partnership prop- • erty according to tlieir respective interests in the firm, which was stated to be as follows: McMath, one-fourth; the three Alberts jointly, one-fourth; each Reese and each Iiammond, one-eighth. The deed was duly recorded within ten days thereafter. In July 1872, the two Hammonds,-who thus owned one-fourth of the firm property, conveyed an undivided fourth of the land to McMath, one of their co-partners. In October 1872, the latter agreed to sell a one-fourth interest in all the property of the firm to Du Bree and Kessler, which was followed by a deed for the land in question in June 1876. • Title thus acquired was what professed to be sold by the aforesaid agreement of June 1st, 1874.

The law is well settled that when a firm holds land, by deed expressed on its face to be the partnership property of the firm, it is stamped, so far as the partners are concerned, with all the attributes of personalty. It continues to be personalty until the partnership is dissolved, the business of the firm settled, and its debts paid. Until that time, it is held like other assets of the firm, and the extent of each partners interest therein is to be ascertained on a final settlement. In the meantime, even a judgment against one partner will not be a lien on his interest in the land: Lucas v. Laws, 3 Casey 211; Erwin’s Appeal, 3 Wright, 535; Meily v. Wood, 21 F. Smith 488; Foster’s Appeal, 24 Id. 391 ; West Hickory Mining Association v. Reed, 30 Id. 38 ; Foster v. Barnes, 31 Id. 377.

As McMath, the three Alberts, and the two Hammonds .. were all members of the firm to which the land was conveyed as personalty, the former purchased the interest of the two Hammonds with both actual and record notice that it was so held. His memorandum of agreement was to sell to Du Bree and Kessler “one-fourth interest in the Woodland Fire Brick Company’s works, including real estate, personal property, book accounts, notes, cash, and everything else thereto belonging. The said Du Bree and Kessler to pay throe-fourths of all the debts against said firm.” Thus, Du Bree and Kessler purchased an interest in the land as partnership property.' The fact that a deed, free from all incumbrances, was to be made afterward, did not change its character. It still remained partnership property. A change was made of some members of the firm, but the firm continued, and this land remained a portion of its assets. When they made the agreement on which • specific performance is now sought, they unmistakably treated it as the property of the firm, aud the Alberts agreed to buy it ■ as such.' The firm is not yet dissolved. Its business.is not yet . 'settled. The interest of the two Reeses does not appear to have been divested. The land still continues a.portion of the assets.

Ejectment will not-lie to settle the rights-between .copartners to their personal property. It is, therefore, not necessary to consider whether the firm was composed of general or limited partners, nor whether it would lie to recover a grosssurn agreed to be paid for real and personal estate so blended together as to give no indication of the sum to be paid for the lands.

It follows the learned judge was clearly right in entering judgment in favor of the defendants non obstante veredicto.

Judgment affirmed.