Page:Federal Reporter, 1st Series, Volume 9.djvu/866

 IH SE CODDINO. 851 �or an assignee in bankruptcy who representa them, to gainsay the lien of a judgment upon the partnership real estate -where that judg- ment is for a firm debt, and was entered against the partnership by the confession of the firm? The validity of a mortgage given by partners upon partnership real estate was distinctly recognized in Lancaster Bank v. Myley, 13 Pa. St. 544. But if the partners may encumber their real estate by mortgage, why may they not do so by judgment ? Undoubtedly it was the intention of Codding & Eussell to give Butler and Jackson judgment liens, and I am at a loss to see upon what principle that intention is to be frustrated by the assignee in bankruptcy, who stands, in this matter, in no better position than the bankrupts themselves. �While, perhaps, the precise question now before me bas not been judicially determined, yet in moro than one case the validity of such judgment liens, it would seem, bas been assumed. Overholt's Appeal, 12 Pa. St. 222; Envin's Appeal, 39 Pa. St. 535. And it is said by Mr. Price, in bis work on liens, that a judgment for a firm debt would bind the real estate of the firm. Price, Liens, 280, 281. �And now, December 21, 1881, the exceptions to the register's re- port are sustained; and it is ordered that the fund for distribution be applied first to the paymeut of the judgment of Lawrence Butler, and the residue to the judgment of Matthew Jackson, and that the assignee pay the fund to said judgment creditors in accordance with this decree. �Note. The general rule that in equity partnership real estate is treated as mere personalty and is governed by the general rules applicable to that species of property, is well settled. See Nicoll v. Ogden, 29 111. 323 j Mauck V. Mauok, 54 III. 281 ; Arnold v. Wainwright, 6 Minn. -358 ; Baxris v. Chris- tian, 15 Gratt. 11 ; Seruggs v. Slair, 44 Miss. 406 ; Whitney v: Cotton, 53 Miss. 689; SUl V. Seach, 12 N. J. Eq. 31; Ludlow v. Coqper, 4 Oliio St. 1; Moder- well V. Mulllmn, 21 Pa. St. 257; Day v. Perkins, 2 Sandf. Ch. 859; Andreios V. Brotvn, 21 Ala. 437 ; Biaok v. Black, 15 Ga. 445 ; Galbraith v. Gedge, 16 B.Mon. 631; Divine v. Mitchum, 4 B. Mon. 488; Cotes v. Coles, 15 Johns. 159 ; Pratt v. Oliver, 3 McLean, 27. �This rule, however, grows ont of the peculiar nature of the partnership relation, and is adopted for the purpose of doing justice betweeu partnera, or between them and others having dealings with them, and for the purpose of properly adjusting the relations between them, or between them and others having dealings with, or relations to, the partnership. It is not an arbitrary rule, by which a court of equity transmutes real estate into personal property, when it is once owned and possessed by a partnership, and causes it to take that character outside of, aud independent of, the exigeucies of the partner- ship. Blaok Vi JSZacft, 15 Ga. 445. Eeal property, purchased with partner- ��� �