#### MARVIN *v.*J. AND H. C. TRUMBULL.

Land held by partners — individual and partnership rights — bill of review — practice in, in looking out of the record.

Real estate purchased and held as partnership property, will be subjected to the debts of the firm in preference to the debt of an individual member of it, the creditor having notice.

On a bill of review the court will look to the case made on the record, and not regard the evidence before the court at the hearing, unless necessarily a part of the record; nor will it be regarded, if propeily placed on record.

*387If the record show a case which will warrant the decree, the court, on a bill of review, will not examine to see if it could not have come to a different result.

It is doubtful if a copartner should be permitted to assert his individual claim on partnership property to the exclusion of other creditors, he having dissolved partnership and neglected to protect his interest.

Bill of review. Marvin was in partnership with one Adams, and while in partnership, purchased a tract of land with partnership funds, and took the title to himself. The partnership was after-wards dissolved, complainant being then in possession of the land. Adams still holding the legal title, mortgaged the land to the defendant, *Joseph*Trumbull, in trust, for the defendant, *II. C.*Trumbull, to secure an individual debt of Joseph, due to H. C. Trumbull. Since the dissolution, the complainant has paid partnership debts, for which and for advances to the copartnership for more than his portion of the stock, he filed his bill to charge the amount on the land as partnership effects for the payment of his demand. The court, on hearing, dismissed the bill. To review and reverse the decree of dismissal this bill is brought.

*E.*Wade, for the complainant, insisted—

1. That the proof in the cause before the court at the hearing, showed the purchase to have been with the partnership funds, and the land to have been necessary for the partnership business.

2. That the mortgage was but an incident of the individual debt, and does not attach to the partnership funds as such, but only to the residue after the partnership debts are paid, and,therefore, the estate should be sold and the proceeds distributed — 1. To the partnership debts; and, 2d, to individual demands according to their priority.

3. That the possession of the complainant at the date of the mortgage, was notice of the extent of the claim of the possessor.

In these particulars, the decree of dismissal is wrong,for, on either ground, the complainant was entitled to relief.

*W. L.*Perkins, contra,

admitted the general rule, that lands purchased with partnership funds, for the use of the partnership, are held as personalty, except as to a purchaser without notice. He cited 3 *Kent C.*37, 8; 1 *O. R.*542; 7 *Conn. R.*11, 325. But, the case made in the other court, nowhere alleged that the land was bought with partnership funds, or set up any agreement that it should be sold for partnership debts.

By the Court.

The rule applicable to real estate purchased and held as partnership property, would let in a creditor of the firm upon the land, in preference to a creditor of an individual partner, with notice. Possibly, if we should consider the evidence before *388the court in the original cause, our conclusions might be different from those the court came to which heard the cause; and, on hearing where the proof made out a good case, differing from the one set forth in the bill, might have permitted an amendment to meet the case; but, on a bill of review, where we act as a court of error, our powers are circumscribed. The question nqw is,whether,upon the case which the record exhibits, as made in the pleadings and decree, the court rendering the decree have erred. Unless the evidence is necessarily a part of the record, we cannot look at it on a bill of review. There is some difference of opinion among the members of the court on this point; but we agree that where the case on the record is such as to warrant the decree, though the evidence, if looked at, might sustain a contrary decree, we cannot open the decree, or allow an amendment. In this case, it does not appear in the decree, or in the record, that the purchase was made with partnership funds, or for its use. We should doubt the propriety of showing favor to such a claim as the complainant’s, who dissolved the partnership without securing his own interest. At any rate, the error, if any, is not very apparent, and we are not disposed to interfere. The bill is dismissed.