The Minnesotian. [volume] (St. Paul, Minn. Territory) 1851-1852, 1852-03-27

distribution as personal estate; and the
case would have been the same, if so
purchased with partnership property, if
the conveyance had been to one of the
parties instead of both. 3, Kent's Com.
81, 80. Bisset on Partnership, no.
Burnside VS.. Merrick, 4 Metcalf's Rep.
Sal. Dyer VS.. Clark, 5 id. 562. Howard
VS.. Priest, id. 582. Divine VS.. Mitchum,
4, B. Monroe, 48s. Collyer on Partner
ship, 76.
AT the time of the original contract for
the purchase, Brawley and Symonds were
in partnership, in the business of making
brick. By that contract, the land was to
be paid for in brick. 1t was so paid for
out of the partnership property, and q
conveyance taken to both partners. The
land was covered with wood, convenient
if not needed for the partnership business.
These circumstances unexplained, and
uncontradicted, would be sufficient to
raise presumption that the purchase was
for partnership use. They are not con-
tradicted, but it is denied by the answers
that they were purchased for that pur-
pose. This is not denial of the whole,
but an attack upon single link in the
chain of facts, on which the complainant
rests his equity.
The defendant, Fuller, has not brought
himself within the description of bona
fide purchaser for valuable considera-
ton without notice. If the land was
partnership property, knowledge of the
circumstances above mentioned was sufi-
cient notice to him Of the fact. Again,
he has not paid the purchase money, and
bona fide purchaser must have paid his
purchase money before notice, otherwise
he will not be protected. Story's Eq
rs, 5 ga, C. 2, id. 958, 5 1902. Six
hundred dollars of the purchase money
was applied to the discharge of the prior
obligations of Brawley individually, and
for the remaining four hundred, a due
bill was given payable in goods out Of
Fuller's store. 1t is a well settled prin-
ciple in equity, that the application of
partnership property, to the payment Of a
debt Of an Individual partner will be
treated as a nullity, if the creditor had
notice of the circumstances. ! Story's
Eq. 1877. And the burden of proof, where
partnership property has been taken to
pay a private debt, is on the creditor re-
ceiving it, to show the transaction fair
and free from any faint Of fraud. id. POP.
1t is true that joint creditors have no lien
on the partnership effects their equity
for the distribution of such effects, is
worked out through the rights of the part
ners to require that the partnership funds
shall be applied to the partnership debts,
and the residue distributed according to
their respective shares. Bisset on PART,
1O6. But that is the very right the COM
plainant is seeking to enforce in this suit
The equitable right Of the complainant to
have the partnership property applied to
the partnership debts, and to his share Of
the residue, is at least equal TO that of the
defendant, Fuller, to have it applied on
the individual obligations Of Brawley, and
prior in point Of time. 1t does not APP
pear that the due bill has been paid,
and if the conveyance to Fuller should be
set aside, he would be no worse off than
he was before. The Indebtedness charg-
ed in the bill, is in some measure denied.
but not positively, as is required for the
purposes of dissolving an Injunction. l
Paige Rep. 100, 5 id. ll2, 2 &c. R.
2O4, Hopk. l4S, Sumner 10, 8 Dam
iel's Oh. Pr. l83l-note. That the COM
plainant has the books is not an excuse.
The defendants might have obtained an
order for their production, if necessary
to enable them to frame their answers.
The sale and conveyance to Fuller are
not entirely free from suspicion. There
was no money passed. So large due
bill given in exchange for goods, is out Of
the usual course Of business. Fuller may
have acted in good faith, but the circum-
stances look as if Brawley, for some rea-
son or other, was anxious to get rid of
his share Of the real estate. They are
susceptible of explanation, perhaps, but
need some further explanation before the
injunction can be dissolved on the ground
of bona fide sale for valuable consid-
Grafton to an innocent purchaser.
This brings us back to the naked deni-
al that the land was purchased for part
nership purposes. as the sole ground for
dissolving the injunction, with some sus-
piclon cast upon that denial, by the cir
cumstances Of the transfer of his interest
by Brawley.
do not think the whole equity of the
bill is sufficiently negatived in this case.
On the coming in of an answer denying
the whole equity of a bill, it is not al
ways Of course to dissolve an injunction
In Ioor VS.. Carlton, 3 Sumner IS and 10,
Mr.. Justice Story says, The true rule
seems to be, that the question of the dis
solution of special injunction, is one
which, after the answer comes in, is adj
dressed to the sound discretion oc the
court" And see 3 Daniels Oh. Pr.
1832-note and cases there cited. A
principal object Of this suit, is to reach
the real estate in the hands of the defend
ant, Fuller, which will probably be de-
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