14 N.W. 152 (Neb. 1882), Bowen v. Billings, Boise & Co.

Citation:14 N.W. 152, 13 Neb. 439
Opinion Judge:MAXWELL, J.
Party Name:JULIA S. BOWEN, APPELLANT, v. BILLINGS, BOISE & CO., APPELLEES
Attorney:A. H. Bowen, for appellant. O. B. Hewett, for appellees.
Case Date:December 07, 1882
Court:Supreme Court of Nebraska

Page 152

14 N.W. 152 (Neb. 1882)

13 Neb. 439

JULIA S. BOWEN, APPELLANT,

v.

BILLINGS, BOISE & CO., APPELLEES

Supreme Court of Nebraska

December 7, 1882

APPEAL from the district court for Adams county. Tried below before GASLIN, J.

REVERSED AND REMANDED.

A. H. Bowen, for appellant.

1. Land purchased with partnership funds, though conveyed to one partner, is partnership property. King v. Weeks, 70 N.C. 372.

2. Though title is taken in name of wife of one partner, the land is subject to the debts of the firm. Price v. Hicks, 14 Fla. 565. Foster's Appeal, 74 Pa. St., 391. Thompson v. Egbert, 3 Thomp. & C. (N. Y.), 474. 1 Hun., 484. Clark's Appeal, 72 Pa. St., 142. In Re Cook, 3 Bliss., 122. Evans v. Hawley, 35 Iowa 83. Switzer v. Smith, 35 Iowa 269. Gordon v. Kennedy, 36 Ib., 167. Warren v. Wallace, 38 Tex. 225.

3. Land purchased with partnership funds must be applied to firm debts before individual debts. Bryant v. Hunter, 6 Bush. (Ky.), 75. Cornwell v. Cornwell, Id., 369. Nat. Bank v. Sprague, 20 N.J.Eq. 13. Uhler v. Semple, Id., 288. Bank v. Phetteplace, 8 R.I. 56.

4. It does not matter in whom the title is; equity will regard it as partnership property, and partner as cestui que trust. Hoxie v. Carr, 1 Sumner, 173. Sigourney v. Munn, 7 Conn. 11. Smith v. Ramsey, 1 Gilm., 373. Wilder v. Keelor, 3 Paige C. R., 167. Sterling v. Brightbill, 5 Watts, 229. Christian v. Ellis, 1 Gratt., 396. Lucas v. Atwood, 2 Stewart, 378. Topliff v. Vaile, Harring. Ch., 340.

5. Real estate purchased with partnership funds for partnership purposes, though title be taken in individual name of one partner, in equity treated as personal property so far as is necessary to pay debts of firm. Collumb v. Read, 24 N.Y. 505. Delmonico v. Gilmore, 2 Sanford Ch., 561.

O. B. Hewett, for appellees.

1. There is no privity of interest which connects Julia S. Bowen or Wm. B. Thorne, her grantor, with the purchase and conveyance of the Eastern Land Association to Adna H. Bowen. The privity, as shown in plaintiff's affidavit, as against any interest of Adna H. Bowen in the lot is in favor of the firm of Bowen & Laird, or perhaps James Laird alone.

2. Thorne's unadjudicated debt against Bowen & Laird could not properly be made the base of an equitable claim; and even if it could, whatever interest it attached must be subject to the prior legal right of Billings, Boise & Co., as judgment creditors of Adna H. Bowen, in good faith secured by their lien.

3. The legal title was in Adna H. Bowen when the judgments became a record, and a sale and deed under executions here enjoined would have conveyed a clear title.

4. The plaintiff has a...

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