Delmonico v. Guillaume , 2 Sand. Ch. 366 ( 1845 )

The Assistant Vice-Chancellor.

The proof is full atid conclusive that the farm in Brooklyn was purchased by Peter and John Delmonico, while they were partners, for the partnership business; was used for that business ,* and was paid for out of the funds of the copartnership.

It also appears that the debts of the firm upon its dissolution by the death of John Delmonico, greatly exceeded the value of the personal property owned by the firm.

So far as the partners and their creditors are concerned, real estate belonging to the partnership, is treated in equity as personal property, and subjected to the same general rules.

In this case therefore, Peter A. Delmonico, as the surviving partner, became entitled to the Brooklyn farm, and as between himself and the heir of John, he had an absolute right to dispose' of it, for the payment of the debts of the firm, in the same manner as if it had been personal estate.

The authorities to this effect are numerous. (Fereday v. Wightwick, 1 R. & Mylne, 45, and observed upon in 1 M. & Keen, 663; Phillips v. Phillips, 1 M. & K. 649; Broom v. Broom, 3 ibid. 443; Cookson v. Cookson, 8 Simons, 529 ; Townsend v. Devaynes, 11 Simons, 498, note; Dyer v. Clark, 5 Metcalf, 562; Howard v. Priest, 5 ibid. 582; Story on Partnership, § 92, 93; 3 Kent’s Comm. 64, 5th ed.)

The case of Coles v. Coles, (15 Johns. 159,) was at law. In Smith v. Jackson, (2 Edw. Ch. R. 28,) the Vice-Chancellor concurred in the doctrine of the cases before cited, to its extent as applicable to creditors.

Indeed, the cases of Phillips v. Phillips and Broom v. Broom, go so far as to hold that this farm would be deemed personalty as between the real and personal representatives of the deceased partner. If that doctrine were applied here, the personal representative would be a necessary party to the suit. I will not express an opinion upon the point adjudged in those cases.

There is no doubt that the legal title is vested in the infant defendant, to the extent of one undivided half of the lots contraeted to Guillaume. But the equitable right and interest being vested in the surviving partner, the infant is a mere trustee of the legal estate, and the Court of Chancery must compel a conveyance of the estate upon the application of such surviving partner.-(2 R. S. 194, § 167; Broom v. Broom, ubi supra.)

The latter will be required to account for this property as a part of the assets of the copartnership.

If the complainant can make a good title in other respects, he may have a decree for specific performance.

The guardian ad litem of the infant will join in the conveyance to Guillaume, executing it for and in the name of the infant. And the complainant must pay the guardian his costs of the suit.