The Minnesotian. [volume] (St. Paul, Minn. Territory) 1851-1852, 1852-03-27
In Chancery--1st District.

In Chancery-1st District.
Ar CHAMBERS, March is, 1882.
Charles vs. s."'n''' sxo,,on to dissolve Injunction
Daniel F. Brawley and on bill and
Alpheus C. Fuller.
This motion is made upon the ground
that the whole equity of the bill is denied
by the answer.
The bill is filed for the double purpose
of settling and winding up the partner
ship affairs, and paying the debts of the
late firm of Brawley s. Symonds, and also
Of reaching the undivided half of sixty
three and 40-lO0 acres of land, conveyed
by the defendant, Brawley, to the defend
ant, Fuller, on the thirteenth day of
January, 1852, claimed by the com plain
ant to be partnership property, and to
have been transferred in fraud of his
rights, and having the same applied to the
partnership debts and liabilities.
Before commencing the argument, the
compliments counsel offered to read affi-
davits in support Of the statements of the
bill, which was objected to by the defend
ants counsel, and the question reserved.
After taking time to look into the mat
ter, do not think the afidavits admissi-
BILE. The general rule is, that upon such
motion, afidavits in support Of the bill,
or in contradiction of the answer, are not
receivable. 8 Daniels, Oh. Pr. 1861,
note. There are some exceptions to the
rule, and these are for the most part re-
solvable into the principle of irreparable
mischief, as in the case of an injunction
to stay waste. l, ]. c. R., l44, village of
Seneca Falls VS.. Matthews, 8, Paige SOL,
3 Daniels Oh. Pr. 1927, note. 1t would
be straining the point to hold that this case
is within the principle Of the exceptions.
Should the complainant fail to reach the
real estate in the hands of the defendant,
Fuller, the mischief would not be ire
parable.
There is no ground for dissolving the
injunction as against the defendant Braw-
ley. The equity of the bill is not denied
as 10 him. He admits the partnership,
the dissolution, and that he and the COM
plainant cannot agree as to the settlement
of the partnership business and DISPOSE
ton of the joint property. This being So
there is no other convenient mode of clos
ing up the affairs of the concern, except
by the aid of court of equity. Under
such circumstances, it is a matter oil
course to entertain bill for that purpose
to appoint receiver, and grant an in
junction. Marten VS.. Van Setback, 4
Paige's C. r. 479, Story's Eq. u.s.
The complainant, however, should apply
for the appointment of receiver within
reasonable time after the filing of his bill
or at least after the coming in of the ans.
wer, r. S. 466, s "a, and if he neglect
to do SO, the injunction will be dissolved
to enable the defendant to take care of tn,
Joint property, if necessary. But in thi:
case, the defendant, Brawley, cannot com
plain that receiver has not been applied
for while this motion was pending.
The application for dissolution of The
injunction on the part of the defendant
Fuller, stands upon different footing
He does not deny the partnership, bu
with Brawley, he denies that the land or
account of which he is made party, wa.
partnership property, and sets up that il
it was, he is bona fide purchaser for
valuable consideration without notice, ant
denies that he purchased it in fraud of tn,
complainant's rights. As to five acres
parcel of the land in question, he ais,
sets up, that he paid Brawley one hundred
and fifty dollars for it, and took his bono
for deed, while Brawley was in posses
sion, under a contract to purchase thu
land from Henry H. Sibley, the grantol
of Brawley and Symonds, and before Sy
H.. .nyo fol With pro,,,1o,, =.
the purchase. AS TO this parcel, he ha
clear, equitable title, prior to that of Sy
monds, and which would entitle him to
conveyance of the other undivided hal
from the latter, if the answers are true
The injunction must therefore be dissolv
ed SO far as the five acres is concerned.
The defendant, Fuller, does not den,
that the residue of the sixty-three 40 lOl
was PAID Tor out OF the partnership ef.
ects, nor that ne knew it was SO paid for
nor is this denied in the answer of Draw
ley. 1t does not follow, because it wa.
SO paid for, that it became partnershi,
property. The payment may have beef
division of the partnership effects pr
tanto. ii Mass. R. 40. Whether
was so, depended on the intention of tn
parties. At law, by the purchase an
conveyance, they took an estate in tn
land and tenants in common, although GU
Revised Statutes, pol, sec. A, were no
IN force at the time; Pitts VS.. Waugh, .
Mass: X: 424, ii id. 40, Coles VS.. Coles
10, ). X. l59; and whether it wa
bought for partnership purposes or not
But In equity, il bought for partnershi,
purposes, they held it jointly and in trus