Page:Federal Reporter, 1st Series, Volume 9.djvu/867

 852 FEDERAL REPORTER. �ship fimds, for partnership purposes, and which lemains after paying the Jebts of the firm and adjustiiig the equitable clairas of the different members of the firm, as between themselves, is accordingiy considered and treated as real estate. Buckley v. Buckley, 11 Barb. 43 ; Sci-uggs v. Blair, 44 Miss. 456. See, however, Thayer v. Lane, Walk. Ch. 200. And, where not needed for such purposes, it descends to the heir, lilie other real estate. Williamson v. Fon- tain, 7 J. Bax. (Tenu.) 212; Foster's Appeal, 74 Pa. St. 391. See, also, Teat- inan v. Woods, 6 Yerg. 20; Gaines v. Catron, 1 Humph. 514; Piper v. Smith, 1 Head, 93 ; McGrath v, Sinclair, 55 Miss. 89 ; Summey v. Fatton, 1 Wins. (N. C.) Ec(. (No. 2) 52. And,in the settlement of the estate of a deceased partner, any real estate of the partnership, remaining after the fulfllment of all part- nership obligations, is to be treated as realty. Wilcox v. Wilcox, 13 Allen, 252. Keal estate owned and used by a firm may, however, be deemed per- sonalty, not only for purposes of the partnership, but for distribution also, when the intention of the partners that it should be so treated appears. In the absence of their agreement, express or implied, to this effect, it should only be so regarded for the purposes of the partnership, and after these are an- swered, the surplus should be held to be real estate for all other purposes. Lowe V. Lowe, 13 Bush, 688. See, also, ScTuggs v. Blair, 44 Miss. 406. Com- pare Bank of Louisville v. Haie, 8 Bush, 672; Cornwall v. Cornwail,& Bush, 369. Partnership real estate can only be conveyed as real estate by those holding the legal title; and if only one partner executes the deed, whether it be in his own name or in the name of the firm, such deed will not convey more than the interest of the partner executing the conveyance. Coles v. Cales, 15 Johns. 159; Jackson v. Stanford, 19 Ga. 14; Davis v. Christian, 15 Gratt. 11; Anderson v. Tompkins, 1 Brock. 456; Willey v. Carter, 4 La. Ann. 56; Arnold v. Stecenson, 2 Nev. 234 ; Bonaldson v. Bank of Cape Fear, 1 Dev. Eq. 103; Goddard v. Renner, 57 Ind. 532. �Partnership real estate must, like other partnership assets, be first applied to the satisfaction of the partnership debts. Matlock v. Matlock, S'Ind. 403 ; Win^low V. ChiffelU, 1 Harp. Ch. 25; Hunter v. Martin, 2 Rich. 541; Ovm-- holt's Appeal, 12 Pa. St. 222; Marvin v. Trumhull, Wright^ 386; Bryant v. Hunter, 6 Bush, 75; Cornwall v. Cornwall, Id. 369; Nat. Bank of Metropolis V. Sprague, 20 N. J. Eq. 13; Uhler v. Semple, Id. 288. The doctrine, however, that a separate debt of one partner shall not be paid out of the partnership property till all the partnership debts are paid, is said to be applicable only where the prihciples of equity are invoked to interfere in the distribution of the partnership property among the creditors. Mittnight v. Smith, 17 IT. J. Eq. 259. See, also, Qillaspy v. Peck, 46 lowa, 461. �As the ordinary creditors of an individual have no lien on his property, and cannot prevent him from disposing of it as he pleases, so the ordinary cred- itors of a firm have no lien on the property of the firm,so as to be able to pre- vent it from parting with that property to whomsoever it chooses. 2 Lind- ley, Part. (Ewell's Ed.) *654, 655, and cases cited in note. Partners have the power, therefore, while the partnership assets remain under their control, to appropriate any portion of them to pay or secure their individual debts. A mortgage, given by them to secure individual debts, fairly due, is not rendered void by the mere fact that it operates to give individual debts a preference ��� �