#### *Ker Boyce et al.*v. *The Ex'rs. of J. G. Coster.*

*Charleston,*

*Jan. 1850*

A purchaser of the share of one -who, subsequent to its formation, had been let into a copartnership formed for the purchase and improvement of City lots, was *held*to have had sufficient notice of the partnership and its objects to subject his share, on a settlement, to all the equities of the other partners, from the fact of its having been provided in the deed of indenture by which his vendor had been admitted into the firm, that he was “ to hold” with the other partners as “joint tenant,” and “to conform in all respects to the articles of agreement executed between them, bearing date,” &c., “for the improvement and sale of said property.”

*Before*Dargan, Ch., *at*Charleston, *June*Sittings, 1848.

The facts of the case are stated in the following decree :

Dargan, Ch. On the trial of this case, a vast mass of facts was brought to view in the evidence, embracing nearly the entire history of the City Land Company from its formation to the present day. There are, however, but two questions presented for the judgment of the Court: one of fact, and one of law. I shall not complicate or encumber this opinion with the voluminous history of the Company, which has been offered in evidence, but advert only to those facts and circumstances that appear to me to be necessaiy or material to a clear comprehension and adjudication of the questions at issue.

In the year A. D. 1836, an association was formed by Ker Boyce, Leroy M. Wiley, Henry W. Conner and Geo. H. Kelsey, for the purchase and improvement of certain vacant lots in the city of Charleston, known then as “the Burnt District.” This Company was formed as early as the 18th day of March of that year; and the objects in view were the purchase of vacant lots, and the erection of buildings and enclosures thereon, with a view to profits from their rent and resale. A negotiation was entered into with the City Council of Charleston for the purchase of the lots; and the City Council, for the consideration of $246,000, by deed of indenture, dated 4th April, 1836, conveyed the said lots to the four per*26sons above named, “to them and the survivors or survivor of and to the heirs and assigns of such survivor.” And a mortgage, bearing the same date, was duly executed by the said vendees to the City Council, to secure the payment of the purchase money, in four equal instalments; to be paid on the 1st of April, in the years 1849,1851,1853 and 1855, with interest at 5 per cent. On the 16th May, 1836, articles, con-taming the rules and regulations by which the association was to be governed, were severally subscribed by the members, and entered in their journal. These articles contain a positive inhibition against the alienation, by any member, of his share, or any part thereof, without the unanimous assent of the Company, under the penalty of a forfeiture of his interest in the land, &c. alienated. They also contained a provision that no money should be withdrawn from the concern until its affairs were brought to a close, except by unanimous consent; and provided for the addition of further rules and regulations that might afterwards be deemed necessary.

On the 16th June, 1836, by the unanimous resolution of the association, James Hamilton “ was admitted as a copart-ner to the City Land Company, to the extent of one-fifth, on the same terms and conditions that they purchased *‘the*burnt lands’ from the City Council; the copartnership to take effect from the first day of April last.” And, on the same day, the said James Hamilton signed an instrument in the journal, of the following tenor and effect: “Having been admitted a co-partner in the City Land Company, I do hereby ratify and confirm all that the proprietors have done to this date.” As the consideration of being admitted a partner, the said James Hamilton agreed to pay the other members of the Company the one-fifth of the purchase money due'the City Land Company, to wit, $49,300; and on the 10th day of June, of the same year, executed his bond to the other members, for the said sum of money, to be paid on the same terms and conditions that the purchase money was to be paid to the City Council. ' And, on the same day, the four original members of the Company executed a deed of indenture, in which, after reciting the purchase and conveyance from the City Council, and the consideration to be paid them by the said James Hamilton, they convey to him “one undivided fifth part of . all that lot, piece or parcel of land, commonly called the Burnt Square, bounded,” &c., “together with all the undivided fifth part of all and singular the rights, members,” &c., *“haben-dum,*to the said James Hamilton, his heirs, executors and administrators,” with a. general warranty. This instrument then proceeds: to declare “that it is the true intent and meaning that, the said James Hamilton should be let into the purchase, of the. s.aid Burnt Square, in joint ownership with the *27parties, to tbe extent of one-fifth of the same, and to. hold as joint tenant in all the uses, benefits, rents and profits of the same. It is understood that the mortgage which the said Ker Boyce, Henry W. Conner, Leroy M. Wiley and George H. Kelsey have made and executed for the security of the City Council of Charleston, by reason of their purchase of said Burnt Square, shall stand in full force and effect, without prejudice by this indenture, until the said James Hamilton shall have paid his fifth part of the aforesaid purchase money, of the aforesaid Burnt Square, according to the terms of his bond, as above recited. And I, the said James Hamilton, do bind myself, and each and every of my heirs, executors, administrators and assigns, to pay one-fifth part of all the instalments, principal and interest, according to the tenor and effect of the aforesaid bond,” &c. “And I, the said James Hamilton, do moreover covenant and agree, with the aforesaid parties, to conform in all respects to the articles of agreement executed between them, bearing date the day of , in the year of our Lord, one thousand eight hundred and thirty-six, for the improvement and sale of the said property.” This indenture concludes with a covenant for further assurances *to*the said James Hamilton, but the foregoing is the only title he ever has had. It is signed and sealed by all the parties, and was registered on the 5th June, 1886, but the rules and regulations of the Company were not registered until the 11th day of June, 1842.

On the 21st July, 1837, James Hamilton, for and in consideration of $12,500, paid him by John G. Coster, of New York, conveyed to him one-fourth part of said James Hamilton’s fifth part of the said land. On the 15th January, 1839, in consideration of the said John G. Coster’s bond for $30,900, the said James Hamilton conveyed to him another fourth part of his fifth of the said tract of land, making the one-half of his entire share. These deeds were conveyances in fee, with the usual warranties, and were recorded on the 31st January, 1842. On the 5th May, 1840, James Hamilton mortgaged to John G. Coster the remaining moiety of his share in the land of the Company, on an agreement between them respecting the bond for $30,900, last mentioned; which, by a stipulation at the time of its execution, was to have been assigned to the Charleston Insurance and Trust Company, and was to have been paid by the said James Hamilton. Having failed in the performance of these covenants, John G. Coster instituted a suit for, and obtained a decree of foreclosure of, the said mortgage. And the said John G. Coster having afterwards departed this life, George W. Coster, Henry A. Coster, and Gerard H. Coster, as the executors of his last will and testament, by virtue of the aforesaid decree, and the sale authorized *28thereby, became the purchasers of the said James Hamilton’s remaining half of one-fifth in the said land, and the Master has conveyed to them accordingly. Subsequently, Gerard H. Coster assigned all his interest in the premises to his co-executors, George W. Coster and Henry A. Coster, the defendants in this bill; who, by virtue of the said several deeds, with the dates as above stated, became thus entitled to the rights and interests of the said James Hamilton in the said premises. They, however, claim more than the rights of James Hamilton as they would stand if he were at present a party in interest, as will be seen in the *denouement.*

I have thus traced the title of the defendants in the chronological order of the different transactions on which it depends. I must now go back, in point of time, for the purpose of *bringing*to view another class of facts. The quintuple alliance, or association, having been formed, in the manner as before stated, they proceeded to form and execute their plans for carrying on their contemplated speculative improvements. Messrs. Wiley, and Conner were authorized (in Aug. 1837,) “to contract, in New York or elsewhere, for materials, and for building the ten stores agreed upon on the 28th September,” &c. A contract was accordingly made with N. &. J. Potter, of Providence, to build the ten stores complete, for the sum of $80,000. At a meeting of the Company, called 25th March, 1838, for the purpose of devising the ways and means of meeting the payments, agreeably to the contract for building, it was then resolved, “that in order to raise the funds to meet the contract, that each of the Company will give his note, or notes, for the sum of ten thousand dollars, to the treasurer, to be discounted by him, for the use of the Company.” At a subsequent meeting, (17th January, 1839,) it was resolved, “that the notes th it had been drawn by each of the members individually, in favor of the treasurer, for $10,000 each, for the use of the Company, should now become the debt of each of the parties individually, but the treasurer be authorized to endorse the renewals, 25 per cent, being taken off the notes every sixty days,” the notes being all discounted in the Bank of Charleston. On the 3d January, 1839, a note of James Hamilton, bearing that date, and payable to H. W. Conner, treasurer of the City Land Company, (and endorsed by him,) for the sum of $10,000, was discounted by the Bank of Charleston. At the first renewal thereof, on the 1st to 4th March, 1839, 25 per cent, was paid, and the note was renewed for $7,500. It was regularly renewed until 29th June, 1841, when it was renewed for the last time, and made payable 28th to 31st January, 1842, at which time it was paid by H. W. Conner, and is now held and claimed by Ihe City Land Company as the endorser thereof, through their treasurer, H. W. Conner.

*29On the Journal Folio of the Company, (of the date of 27th April, 1839,) James Hamilton stands charged, “Dr. To sun-, dries, $10,000,” and, on the same date and page, he is credited with two notes to the Company, each of the sum of $5,000. Here arises the *first*question, which, I have before said, was a question of fact. From the discrepancy in the date at which the credit was given, as well as on account of the fact that the note of the 3d January, 1839, was for $10,000, and the credit given was for two several notes, each for $5,000, it was contended that the note now produced was not a note of James Hamilton, or a renewal thereof, given by him, under the resolutions of the Company, and endorsed by the treasurer by the authority of those resolutions. The books of the Company were very irregularly kept, and this confusion of dates and irregularity of entries has given rise to a strenuous effort on the question, as to the identity of the note. But I have no difficulty whatever on the subject. The fact that the note was discounted in near conformity with the date of the credit, and was for the sum of $10,000, the precise amount authorized by the resolution, and was made payable to and was endorsed by the treasurer of *the*Company, is satisfactory evidence to my mind, notwithstanding the discrepancy of the dates of the book entries, that this is a renewal of the note, or notes, of James Hamilton, authorized to be given for the use of the Company, under the aforesaid resolutions. But, to make the matter irresistibly clear, by going back to page 38 on the journal, we find, under date of May 22, 1838, the following entries:

Sundries, Dr. To Bills payable—

Cash, proceeds of General Hamilton’s Note,.$4,814 17

Interest, discount on ditto,. 185 83

$5,000 00

Note due 1st to 4th Jan. 1839, discount for 7 mos. 13 days, is.. 185 83

Under date of July 21, 1838, journal, page 41, we find the following entries:

Sundries, Dr. To Bills payable—

Cash, proceeds of General Hamilton’s Note,.$4,863 33

Interest, discount on ditto,. 136 67

$5,000 00

Note due 1st to 4th Jan. 1839, discount for 5 mos. 14 days,.... 136 67

From these entries it appears that the notes of James Hamilton were drawn at an earlier period than was supposed by defendants’ counsel; that the entries that gave him credit for two several notes for $5,000 each, were correct, except as to the time at which the credit should have been given; and *30that these two notes were both due at the same time, to wit, 1st to 4th January, 1839, at which time, I have not a doubt, they were consolidated into one; and that the note of 3d January, 1839, for $10,000, was itself a renewal of the two notes for $5,000 each.

This note, then, and the interest thereon, is due by the said James Hamilton to the Company, as a member thereof, being money due by him on account of the improvements that have been constructed. And the original four members of the Company have filed their bill against the defendants, who represent James Hamilton’s share, for the purpose of setting up this debt against the share of Hamilton in *the*rents, profits, and income of the said property. It would be as well to remark here, that the defendants have been regularly recognized, by an agreement in writing, as the representatives of the Hamilton share in the enterprise, under mutual covenants and conditions; each party reserving their rights, as they stood, *ab initio;*in regard to this claim of the Company on the Hamilton share, for the protested note before mentioned.

This claim is resisted by the defendants, on the question of fact, which I have just disposed of; and also on the ground that the complainants have not, in law, from the character of their joint undertaking, and the subject matter of their speculative operations, a *lien*on the share of James Hamilton, for their debt against their rights; they occupying the position of *bona fide*purchasers, for a valuable consideration, without notice. And this brings up the second question in this controversy.

'Winslow v. ChafFeiioj arJ25.S q"

Partners in trade are, at law, joint tenants of the partnership stock and effects, with the rights of survivorship and its incidents. But in equity the joint estate of partners is subject to the maxim or exception, *jus accrescendi in mercatores locum non habet;*and subject also to the jurisdiction of this Court, to enforce an account between the parties, based upon the equities growing out of the business in which they have been engaged. As a general rule, real estate, bought with the partnership funds, or for partnership purposes, is regarded i*1 Court as personal estate, and is administered and disposed of as if such was its character. Another rule is, that the share, of each member in thé joint stock and effects is subject to a *lien*in favor of the others for any indebtedness arising out of the partnership operations, which may exist on a final settlement of the accounts. Under this rule, the alienation by one of his interest, would be subject to the equities of the other partners on a settlement. This unquestionably may be said to be a general rule in equity. But whether, in reference to real estate, it will be applied in this Court, under all circumstances, and without regard to the rights' of third per*31sons, has been a much controverted question, and the authorities are discordant upon the subject. It would seem that there *are*cases where the decisions are the other way. If two or more, being tenants in common of an estate, by an agreement among themselves, not registered, contract to improve the estate at a joint expense, with a view to speculation, which is accordingly done, and one of the tenants were, under these circumstances, to alienate his share to a stranger, for a valuable consideration, and without notice of the latent equity, would not the equity of the stranger be superior to that of the copartners? The case would not be different if the agreement of copartnership was made first, and afterwards the parties purchased the real estate, and took a deed to them as tenants in common, which did not contain the terms of copart-nership or any allusion thereto.

The deed of the City Council to Ker Boyce and his associates is to them and the survivors or survivor, and the heirs of the survivor. The indenture of these joint tenants to Jas. Hamilton, conveys to him one-fifth of the land, to him, his heirs, executors, administrators and *assigns.*The instrm ment, after conveying one undivided fifth to James Hamilton, *his heirs and assigns,*proceeds very inconsistently to declare that it is the true intent and meaning to let him into the purchase of the Burnt Square, in joint ownership with them, (the original vendees,) to the extent of one-fifth of the same, and to hold, as joint tenant, in all the uses and profits of the same. Whether the subsequent provisions may not be considered repugnant to the previous grant, might very well create a doubt; but the estate conveyed to James Hamilton-wants two of the unities of a joint tenancy — that of title and that of time. He neither holds by the same act or instrument with a 1 the other tenants, or under a title commencing at the same time. The estate which James Hamilton held in “the Burnt District,” under the deed of Ker Boyce and his associates, must, in my view, be regarded as a tenancy in common. Indeed there are many cases where joint tenancies (at law) in real estate, purchased with partnership capital, have been held in equity as tenancies in common, and as constituting only a portion of the partnership fund. And there is both reason and authority for the proposition, that one who is tenant in common in real estale, and possessed of a legal title, which bears upon its face no evidence of its being encumbered with equities, may convey, by valid assignment, his share to a stranger, and that such an assignment would prevail against the equities of the co-tenants, provided it was *bona fide,*and for valuable consideration. This is harmonious with the principle, that the alienation, by a trustee, of the trust estate, involving a breach of the trust, is valid *32to a purchaser for valuable consideration, without notice. And, in regard to real estate, partners are considered in equity as trustees, and as seized in trust for the whole firm, and. for him or them who may be entitled on a final settlement. But if partners, dealing in real estate, and taking title deeds, which make them tenants in common, and which contain on their face no evidence of the trust, are not bound by the assignments of each other, for valuable consideration, and without notice, they put it in the power of each other to circumvent innocent persons, by the exhibition of titles, clear upon their face, but encumbered with secret equities.

*31Ford v. Her-ron, 4 Mum. 3^jt rence, 7 Serg. & Rawles, 438‘

*32But it is not necessary for me to express a positive opinion whether the joint tenancies of partners in real estate are, in equity, to be regarded as tenancies in common, and as only a portion of the partnership fund. And whether the deed of Ker Boyce and his associates, of the 10th of June, 1834, (to which James Hamilton was also a party,) conveyed to the said James Hamilton an estate in common, ór in joint tenancy, it is unnecessary for me to decide, under the governing view which I take of the case. For regarding him in the position most favorable to the case of the defendant, to wit, as a tenant in common, and conceding that the principle of law is well established, that a *bona fide*purchaser from him, of his share and interest, would have a good title against the equities of his copartners in the enterprise, still there are circumstances which, in my opinion, upon the most reasonable and admitted distinctions, make the rights of the copartners paramount in equity, and their claim upon the protection of this Court irresistible. A purchaser, occupying the attitude of the defendants against the complainants, asserting their claim in the title of (we will say) a tenant in common, against the equities of the copartners, must, by universal consent, be a *bona fide*purchaser, and one who has laid out his money in the purchase, *without notice of those equities.*And I will go further and say, he must be without notice of such circumstances as would have put him upon his guard, and the possession of which, by a reasonably diligent research, would have enabled him to discover the subsisting and just incum-brances in behalf of other persons. If he has a knowledge of the pre-existent equities of other persons, or of facts upon which, by a reasonable degree of diligence, he may have acquired such knowledge, and still lays out his money, (though he may have done it with purity of purpose, in a moral point of view,) he is not a *bona fide*purchaser, either in law or equity. It is not in behalf of such a purchaser as this, that this Court will supersede the high and prior equities of copartners. Were there any circumstances in the case amounting to notice, on the part of John Gr. Coster, when he *33made the purchase of a part, and advanced his money on a mortgage of the remaining part, of General Hamilton’s interest in this land ? In my opinion, there .are; and the evidence' is to be found in the fact, that in the indenture of 6th June, 1836, (which is the only title he ever possessed,) there are the most abundant indications of his partnership relations with his associates. The condition expressed therein, that he was to hold with them, as a joint tenant, (though perhaps repugnant to the grant, and to the nature of the estate which' he took,) contains pretty clear indications that he was a partner with Boyce and his associates. The provisions of the indenture expressly recognize the mortgage to the City Council, and General Hamilton covenants and agrees with the parties' to that instrument (who were previously partners,) “ to conform in all respects to the articles of agreement executed between them, bearing date,” &c., “for the improvement of said propertythat is to say, of the property therein conveyed to him. Here, then, there was, upon the face of the only title he held, and by which alone he could sell, an explicit declaration of the existence of a partnership, and that he was a member thereof; that there were written articles of agreement, constituting the terms and conditions of their association, and that the partnership was for the improvement and sale of the land, one-fifth of which was sold to James Hamilton. When he applied to the defendant’s testator, to become the purchaser, he exhibited his title, with the foregoing .information spread upon the face, of it. If Coster did not call for the title, it was his own reckless imprudence, against the consequences of which this Court is in no wise bound to protect him. If -he had bought on a legal title, clear on the face of it, the case might have been different. But here was clear and explicit notice of the partnership and its objects, and that they related to the improvement and sale of the very land—and, consequently, that the share of James Hamilton was subject to the equities of the other partners on a settlement. They assert, in their answer, that their testator was positively assured, by the vendor, that there was no *lien*or incumbrance upon his title, and that, upon this assurance, their testator advanced his money. However this may be, he had the means of finding out the truth, which, having omitted to do, those who represent him have no right to complain.

It is ordered and decreed, that the complainants, as copart-ners of James Hamilton,, have a *lien*on the share of the said James Hamilton, in the stock, rents and profits of the City Land Company, for the amount of his note for $7,500, (and •interest thereon,) discounted in the Bank of Charleston, on •the 3d January, 1839, and endorsed by the Treasurer-of the Company in behalf of the Company; and that the share of *34the said James Hamilton, in the hands of the defendants, as assignees, is subject to said lien.

And it is further ordered and decreed, that it be referred to the Master (Laurens) to report the amount due on said note.

COPY OP INDENTURE.

*The State of South Carolina.*

This indenture, made and executed this tenth day of June, in the year of our Lord one thousand eight hundred and thirty-six, between Ker Boyce, Henry W. Conner, Leroy M. Wiley, and George H. Kelsey, of the one part, and James Hamilton, of. the other, all of the City of Charleston, and State aforesaid, wilnesseth—

That whereas we, the said Ker Boyce, Henry W. Conner, Leroy M. Wiley, and George H. Kelsey, did, on the first day of April, in the year of our Lord one thousand eight hundred and thirty-six, purchase and buy, of the Corporation of the City Council of Charleston, certain lots or parcels of land, commonly known as the Burnt Square, which will more fully appear by reference to certain deeds of conveyance executed by the City Council of Charleston to the aforesaid Ker Boyce, Henry W. Conner, Leroy M. Wiley, and George H. Kelsey, and which have been made of record in the office of the Register of Mesne Conveyances for Charleston, in Book-, page-.

Now, know ye, That for and in consideration of the sum of five dollars, to us in hand paid before the sealing and delivery of these presents, and a certain bond or obligation of the said James Hamilton, bearing even date with this indenture, in which he binds himself, and each and every of his heirs, executors, administrators and assigns, to pay us the sum'of ninety-eight thousand six hundred dollars, conditioned for the payment of forty-nine thousand three hundred dollars, in the like instalments of principal, and at the same rate of interest, as we are jointly and respectively bound in our bond and obligation to the City Council of Charleston— have granted, bargained, sold and released, and by these presents we, the said Ker Boyce, Henry W. Conner, Leroy M. Wiley, and George H. Kelsey, do grant, bargain, sell and. release unto the said James Hamilton one undivided fifth part of all that lot, piece or parcel of land, commonly called the *Burnt*Square, bounded ón the west on Meeting street, on. the south on north Market street, on the east on Anson street, on the north on Pinckney street, having such dimensions, divisions in lots, and such buttings from the intersections of the new streets proposed to be laid out, as will more *35fully appear by reference to the survey hereunto annexed, marked A. which call for feet front on Meeting street, hundred feet on Pinckney street, hundred1 feet on Anson street, and feet on north Market street.

Together with all the undivided fifth part of all and singular the rights, members, hereditaments and appurtenances to the said premises belonging, or in any wise incident or appertaining : to have and to hold all and singular the one undivided fifth part of the said premises unto the said Jas. Hamilton, his heirs, executors and administrators, to warrant and forever defend the said James Hamilton, and his heirs and assigns, against us and our heirs, or all persons whatsoever lawfully claiming or to claim the same or any part thereof.

Now, know ye, That it is the true intent and meaning that the said James Hamilton should be let into the purchase of the said Burnt Square in joint ownership with the parties, to the extent of one-fifth of the same, and to hold as joint tenant in all the uses, benefits, rents and profits of the same. It is understood that the mortgage which the said Ker Boyce, H. W. Conner, Leroy M. Wiley and George H. Kelsey have made and executed, for the security of the City Council of Charleston, by reason of their purchase of the said Burnt Square, shall stand in full force and effect, without prejudice by this indenture, until the said James Hamilton shall have paid his fifth part of the aforesaid purchase money of the aforesaid Burnt Square, according to the terms of his bond, as above recited.

And I, the said James Hamilton, do bind myself, and each and -every of my heirs, executors, administrators and assigns, to pay one-fifth part of all the’instalments, principal and interest, according to the tenor and effect of my aforesaid bond, which, in its covenants and stipulations, correspond with the bond and obligations given to the City Council by the said Ker Boyce, Henry W. Conner, Leroy M. Wiley and George H. Kelsey. And I, the said James Hamilton, do moreover covenant and agree, with the aforesaid parties, to conform in all respects to the articles of agreement executed between them, bearing date the day of , in the year of our Lord one thousand eight hundred and thirty-six, for the improvement and sale of said property.

And the parties to this indenture mutually covenant and agree with each other to make such further titles and assurances as they may be advised to execute by their counsel learned in the law, not only for the security of this title of the said James Hamilton, but the perfecting the retrospective rights, interests and benefits of all and each of the parties to this indenture. .

Witness our hands and-seals at Charleston, on this tenth *36day of June, in the year of our Lord one thousand eight hundred and thirty-six, and in the year of the Independence of the United States of America.

KEit BOYCE, *(Seal.)*

H. W. CONNER, *(Seal.)*

L. M. WILEY, *(Seal.)*

GEO. H. KELSEY, *(Seal.)*

JAMES HAMILTON, *(Seal.)*

From this decree the defendants appealed, on the following grounds:

1. Because the complainants were, with James Hamilton) tenants in common, and not copartners.

2. That this tenancy in common was not intended as a copartnership in lands, inasmuch as the share of each of the individuals was ascertained, and became a charge on him, exclusively, and not on those who were connected with him; and this was particularly the case with James Hamilton, who gave his separate bond for the one-fifth conveyed to him.

3. That the same principle was applied *to*contracts for improvements. Each became bound for his proportion, and the contracts for the buildings and other improvements were made with a direct reference to the individual liability of each of the parties for his proportion, and all liability for the nonpayment of this proportion was excluded by the others.

4. That advances thus made between those who were tenants in common of land, cannot be held as advances made by one copartner to another, but merely constitute an indebtedness from one individual to another.

5. That the articles of association were not recorded until after James Hamilton had conveyed to J. G. Coster, and therefore were no notice to the purchaser. And if J. G. Coster is affected with notice of such articles from what appeared on the title deeds *to*James Hamilton, nevertheless it is submitted that he is entitled to the protection of that portion of the agreement between the parties which provides that each shall be held exclusively liable for his share of the debt.

6. That the title of the said John G. Coster became perfect, as to a portion of the property, by the title deeds of James Hamilton to him — and to the other portion, the said J. G. Coster had acquired a *lien*by virtue of the mortgage to him, from the said James Hamilton. And these having been executed prior to the date of the note claimed to be set up against the property, did vest in the said J. G. Coster an absolute title as to one portion, and a valid *lien*as to the residue, which *37could not be divested by any transactions between the said James Hamilton and the complainants.

7. Because the note was barred by lapse of time, and could not be set up against third persons, without proof of a promise to pay it: and inasmuch as the said J. G. Coster was a fair and *bona fide*purchaser without notice, no decree should have been made against his estate in the hands of his representatives, in proceedings for an account of an alleged copart-nership, until James Hamilton had been made a party to the proceedings.

8. Because the original consideration, for which the note was given, was not a debt of any copartnership, but a debt of James Hamilton to the contractors for the buildings on the lands owned by him and his cotenants; that the contractors could have no equity to divest the title which J. G. Coster had acquired, nor can the complainants, who, having paid a private debt, are not entitled to claim against a *bona fide*purchaser without notice, any higher equity than attached to the original debt.

9. Because there was no evidence to show that the note claimed to be set up as a charge on the share in the hands of the representatives, was in any manner connected with the business of the City Land Company, or that the proceeds thereof were either required or intended for the payment of improvements made on the land.

*A. G.*& *E.*Magrath, for the motion.

*Petigru*& *Lesesne,*contra.

*Per Curiam.*

This Court concur in the judgment of the Circuit Court, and the appeal is dismissed.

Johnston, Ch., absent at the hearing.

*Decree affirmed.*