this lot runs to the individual members of the firm of Gardner & Brother, as tenants in common, without describing them as copartners, raises a presumption, in the view of the court of equity, that the property thus bought and used is intended to be kept as the separate property of the respective partners, which stands until some express and even written proof is given to show the contrary intention. A court of equity does not ordinarily, in relation to such a subject, base its presumptions upon mere forms, but rather upon facts which lead to the substantial truth and justice of the case. The well-settled presumption in equity is precisely the other way. As said by Chancellor Walworth in Buchan v. Sumner, 2 Barb. Ch. 198, 199 [47 Am. Dec. 305]: "Where real estate is purchased with partnership funds for the use of the firm, and without any intention of withdrawing the funds from the firm for the use of all or any of the members thereof as individuals, I believe it has never been doubted in England that such real estate was in equity to be considered and treated as the property of the members of the firm collectively; and as liable to all the equitable rights of the partners as between themselves. And for this purpose the holders of the legal title are considered in equity as the mere trustees of those who are beneficially interested in the fund; not only during the existence of the copartnership, but also upon the dissolution thereof by the death of some of the copartners or otherwise." And see the cases cited by him and to same effect, Hoxie v. Carr, 1 Sumn. 181, per Story, J. In this last case Mr. Justice Story says: "But the circumstance that the payment has been made out of the partnership funds, especially if the property purchased be necessary to the operations of the partnership business, and be actually so employed, will afford a very cogent presumption that it was intended to be held as partnership property; and in the absence of all countervailing circumstances, it will be absolutely decisive." "In whosesoever hands the legal title may be placed, whether in one or all of the copartners, and whether the deed describes them as copartners or as tenants in common, if the property be purchased with the funds and for the use of the firm, the decisive presumption, in the absence of proof to the contrary, is that it was intended to be held as partnership property:" Hunt v. Benson, 2 Humph. 459; Buchan v. Sumner, 2 Barb. Ch. 205 [47 Am. Dec. 305]; Smith v. Tarlton, Id. 336, 338; Delmonico v. Guillaume, 2 Sandf. Ch. 366; Dyer v. Clark, 5 Met. 578, 581 [39 Am. Dec. 697]; S. C., 1 Am. Lead. Cas. 488, and cases cited in note; Howard v. Priest,

5 Met. 585; Burnside v. Merrick, 4 Id. 541; Collyer on Part., sec. 154, where see the result of all the authorities stated.

The line of cases cited and relied on by the counsel for the respondent upon this subject will be found to refer to the question whether real estate of a copartnership, upon the death of one of the copartners, and after the debts have been paid and the equities adjusted between the several members of the firm, belongs, in equity, to the executor or administrator of the decedent as a part of his personal property; or whether the beneficial interest, as well as the legal title, in the decedent's share of such real estate descends to his heirs at law. Upon this question of equitable conversion of real into personal estate, as between the heir and personal representative of a deceased partner, Lord Eldon overruled the latest decision of Lord Thurlow, and the decision of Sir William Grant, and held, in Devaynes v. Devaynes, Montague on Part. App. 97, in favor of the conversion, and consequently in favor of the title of the executor or administrator to such surplus. His ruling upon this point seems to have been generally followed by the later chancery judges in England; although two or three recent cases, in which the circumstances were special, have been decided in favor of the heir. The American cases, on the other hand, generally adopt the conclusion that the deceased partner's share of the surplus of the real estate of the copartnership which remains after paying the debts of the copartnership, and adjusting all the equitable claims of the different members of the firm as between themselves, is, as between the heirs at law and personal representative of the deceased partner, to be considered and treated as real estate: Dyer v. Clark, 5 Met. 578, 579 [39 Am. Dec. 697]; S. C., 1 Am. Lead. Cas., Hare & Wallace's Notes, 491, 492, and cases cited; Howard v. Priest, 5 Met. 585, 586; Burnside v. Merrick, 4 Id. 541, 544. The whole subject is, however, so luminously treated by Chancellor Walworth, in Buchan v. Sumner, 2 Barb. Ch. 198 [47 Am. Dec. 305], and onwards, with a full discussion of the cases, English and American, up to the time of his judgment, 1847, that nothing need be added; and indeed, the question of what shall become of any surplus of such property, after the equitable trust under which it is held is satisfied out of it, is so foreign to the case before us that we should not have mentioned it except in answer to the cases with regard to it, cited and relied upon by the counsel for the respondent.

It was noticed, too, by the counsel for the respondent, that in Dyer v. Cla k, Howard v. Priest, supra, and Hoxie v. Carr,

AM. DEC. VOL. LXVII-34

1 Sumn. 181, the respective deeds under which the partners in those cases held the real estates there in question described them as copartners, as if that were the ground of decision in either of those cases. That the deed did describe the grantees as copartners is true of the case of Dyer v. Clark, supra; but it is true only of one of the two parcels of land in question in Priest v. Howard, 5 Met. 583, which were conveyed by separate deeds; the land and store in Moon street, Boston, being conveyed to the two partners as tenants in common, and not describing them as copartners. In Burnside v. Merrick, 4 Id. 537, decided at the same time, the deed does not seem to have described the grantees as copartners, as is shown by the mode in which the court state the question on page 541. It is evident, therefore, that the absence of such a description in the deeds was not deemed controlling in either of those decisions. In Hoxie v. Carr, supra, Judge Story notices that one of the deeds from a former proprietor to the copartners, Reynolds & Hoxie, of his interest in the thirty-seven acres of land thereby conveyed, bounds it on one side on a three-acre lot, stated to belong to the West Greenwich Manufacturing Company, and which formed part of the premises in dispute, and that the deed from Reynolds to Carr spoke of the whole as formerly belonging to the same company. No doubt a chancellor would seize hold of such a feature in a case before him, for the purpose of strengthening the presumption raised by the substantial fact that the estate was purchased with the copartnership funds, for the copartnership use; but we have already seen that Judge Story put the latter as the main ground of presumption, and not the former fact; liable to be rebutted, of course, by any controlling agreement or act of the copartners. This feature, deemed so controlling, exists in very few of the American cases, and in none of the English cases that we recollect. In Delmonico v. Guillaume, 2 Sandf. Ch. 366, the deed of the farm adjudged by the chancellor to be copartnership property, was origi nally executed to John Delmonico, who subsequently executed to Peter Delmonico a deed conveying to him an undivided half. But without taking more time in commenting on particular cases, all of which have of course their peculiar features more or less marked, and more or less controlling the judgment of the courts before which they were heard, it is clear from them that the trust in favor of the firm is held to result from the fact that the consideration was paid by it, as in other cases of resulting trusts; and the implication of this trust is held

to be confirmed by the fact that the property was bought for the use of the firm and actually used in its business, when no agreement, or conduct implying such an agreement, prior or subsequent to or at the time of the purchase, is proved, to indicate an intention on the part of the copartners to hold the real estate thus purchased by them in undivided shares as their separate property.

The other question involved in this cause, that is, whether the title to the property in question acquired by the respondent Champlin is, under the circumstances, held by him subject to or exonerated from the trust with which it was clothed in the hands of his grantee, remains to be considered.

Beyond doubt, a bona fide purchaser or mortgagee of partnership lands, who obtains the legal title from the person in whom it is vested, without notice of the equitable rights of others in the property as a part of the funds of the copartnership, is entitled to protection in courts of equity as well as in courts of law: Per Walworth, chancellor, Buchan v. Sumner, 2 Barb. Ch. 198 [48 Am. Dec. 305]. To this extent, and no further, go the decisions in the cases of Mc Dermot v. Lawrence, 7 Serg. & R. 438 [10 Am. Dec. 468]; Forde v. Herron, 4 Munf. 316; Hole v. Henrie, 2 Watts, 143 [37 Am. Dec. 289]; Ridgway's Appeal, 15 Pa. St. 177 [53 Am. Dec. 586]; and the remark of the court in Sigourney v. Mann, 7 Conn. 11, relied upon by the counsel for the respondent. Holding as we do, that this real estate was copartnership property, the legal title to the undivided half was held by the surviving partner, according to every authority on this subject, English and American, cited on either side, in trust for the payment of the debts of the firm, and of any balance that might be due to the estate of the deceased copartner upon the settlement of the partnership accounts. For the purpose of executing this trust, though but half of the legal title was vested in him, the surviving partner had the right in equity to sell the whole beneficial interest in the estate; and a court of equity would assist the purchaser by contract to get in the legal title to the other half from the heirs at law of the deceased copartner, even though they were infants: Delmonico v. Guillaume, 2 Sandf. Ch. 366-368, and cases cited; Dyer v. Clark, 5 Met. 576 [39 Am. Dec. 697]; S. C., 1 Am. Lead. Cas. 488; Howard v. Priest, 5 Mot. 585; Burnside v. Merrick, 4 Id. 540, 541, 545; Andrews v. Brown, 21 Ala. 437 [56 Am. Dec. 252]; McAlister v. Montgomery, 3 Hayw. 91.

On the other hand, the surviving partner, though he may be

clothed with the whole legal title, has no right or power to divert the trust property to his own private uses, in derogation of the rights of the creditors of the firm, or of those entitled to the estate of his deceased copartner. If he were to attempt it, a court of equity would, upon proper application, restrain him from so doing, remove him from the trust he was violating, and appoint a receiver in his stead. If he convey the trust estate for such a purpose to any one cognizant of the trust with actual, . or under such circumstances or in such form or mode as to give constructive, notice of his design to violate it, the person taking the conveyance, though a purchaser for full value, takes it subject to the same trust, though the consequence may be to deprive him of the whole benefit of his purchase. It is only the bona fide purchaser for value who, as in the cases already cited, purchases it in ignorance that it is copartnership or trust property, or, as in cases that might be supposed, knowing that it was copartnership property, takes the title in such form and under such circumstances as to indicate to him that it is sold and conveyed for the purpose of applying the proceeds to the proper uses of the trust, that can hold the title exonerated from the trust. Such a purchaser does not stand in equity merely upon the derivative title of his grantor. Invested with the legal title, he securely rests upon his own equities as an honest purchaser, without notice and for value-always protected, always a favorite, so to speak, in a court of equity. We agree with the counsel for the respondent, that it will not do to say, as taking the language of the courts away from the connection in which it is used in some of the cases that have been cited, and especially in the case of Horie v. Carr, 1 Sumn. 181, it has been said before us, that, under all circumstances, he who purchases the real estate of a copartnership from the surviving partner, knowing it to be such, and knowing that there are copartnership debts, will take the estate subject to those debts. Much less is it true, as it has been contended, that such an estate can be administered, and a title to it given, only through the intervention of a court of equity. Such a partner, certainly, and each partner of a dissolved firm, unless deprived of it by contract, has in equity precisely the same power to deal with the copartnership property as during the continuance of the copartnership, though liable in proper cases to be deprived of that power by the appointment of a receiver: Per Turner, lord justice, Butchart v. Dresser, 31 Eng. L. & Eq. 121.

If the legal title in copartnership lands be in him, he may dis