Said mares were also to be kept on said | the right to require the jury to return a special leased premises after March 1, 1888. None of said bargains were in writing. Said sale of a half interest in said mares, by said Templeton to said defendant, would not have been made if said Templeton had not at the same time leased said defendant said real estate as aforesaid; but said sale of said half interest in said mares to said defendant, and said lease of said real estate, were in no wise dependent upon said other contract, and would have been made though said other contract had not been made. If, upon the foregoing facts, the law is with! he defendant, then we find for the defendant —that the property in controversy should be returned to him, or, if return thereof cannot be had, that he should have judgment for one half the value of the mares described in the complaint. Thos. S. Lamb, Foreman. But if, upon the foregoing facts, the law is with the plaintiff, then we find for the plantiff, that be keep and retain possession of the property in controversy, and that he recover from the defendant one cent for his damages herein. Thos. S. Lamb, Foreman. The appellant moved the court for judgment in his favor on the special verdict, which was overruled. The court sustained a motion by the appellee for judgment in his favor on this verdict, and rendered judgment for a return of the property. The errors assigned are: 1. That the court erred in overruling appellant's motion for judgment in his favor on the special verdict of the jury. 2. That the court erred in overruling the appellant's motion for a venire de novo. 3. That the court erred in overruling the appellant's motion for a new trial. 4. That the court erred in overruling the appellant's motion to arrest the judgment. verdict without any request from either party. Weatherly v. Higgins, 6 Ind. 73. It is earnestly contended by the appellant, in an able brief, that the contract found by the jury is within the Statute of Frauds, and that it is therefore void. It is found by the jury, as we understand their verdict, that the contract to purchase stock to be fed on the farm has no connection with the other agreements between the parties, and hence that agreement does not call for any consideration at our hands. The contracts under which the question for decision arises are: (1) the contract by which the appellant sold to the appellee a one-half interest in the property in controversy for an agreed price, and delivered to him the possession; (2) the contract by which the appellant leased to the appellee the land described in the verdict for the term of three years; and (3) the contract, by the terms of which the appellee was to keep the mares in controversy and breed them for a period of more than one year. The sale and delivery of a one-half interest in the mares in controversy is not within the Statute of Frauds, because it was fully executed by Templeton. The Statute prohibiting the making of contracts not to be performed within one year has no application to contracts which have been fully performed by one of the parties. Brown, Stat. Fr. § 287: Donellan v. Read, 3 Barn. & Ad. 899; Smith v. Neale, 2 C. B. N. S. 67; Holbrook v. Armstrong, 10 Me. 31; Pell v. Hewitt, 24 Ind. 280; Wolke v. Fleming, 103 Ind. 105, 1 West. Rep. 166. Nor is the lease of the land within the Statute of Frauds, as the Statute expressly exempts leases for a period not exceeding three years. Rev. Stat. 1881, 4904. This is not an action by either party to enforce the contract. A contract within the Statute of Frauds is not void, but merely voidSchierman v. Beckett, 88 Ind. 52; Day v. Wilson, 83 Ind. 463. 5. That the court erred in sustaining the ap-able. pellee's motion for judgment in his favor on the special verdict of the jury. The first objection with which we are met is that the court erred in directing the jury to return a special verdict. It appears by the record that after the close of the evidence in the cause each of the parties requested the court to instruct the jury in writing, and to indicate before the argument, what instructions would be given. After the close of the argument, in the effort to settle on the instruction, but before the court had announced its conclusion, the appellee requested that the jury be required to return a special verdict, which request was granted. It is claimed by the appellant that, by requesting the court to instruct the jury in writing, and by entering upon the discussion of the questions of law to be embraced in such instructions, that the appellee waived his right to a special verdict, and that the court for that reason erred in granting his request. It is unnecessary to decide whether it would have been error in the court to refuse the request of the appellee for a special verdict, coming at the time it did, but it was certainly not error to grant it. Indeed, the court had 7 L. R. A. In the latter case cited it was held that where a party had paid money on a parol contract for the purchase of land, the money could not be recovered back unless the vendor refused to convey. It being settled that the contract for the sale of the property in controversy was not within the Statute of Frauds, and that it vested the title to the undivided one half of the property in the appellee, the question arises as to what is the effect of the repudiation of the agreement to keep the property for a period of more than one year for breeding purposes, by the appellant, when the appellee is ready and willing to carry out the contract on his part. We think, for the purposes of this case at least, that it must be held that the agreement to keep the mares for breeding purposes until 1891, each party furnishing a part of the feed, with postponement of a settlement to that date, is within the Statute of Frauds, unless it be held that such contract creates a partnership. Stephenson v. Arnold, 89 Ind. 426; Wolke v. Fleming, supra. If the contract between the parties created a partnership, then, according to some of the authorities, it is not within the Statute. Wood, | such case neither party had the power to sell Stat. Fr. 281, p. 500. But conceding that the Statute applies to this contract, did the repudiation of it by Templeton devest the title of the appellee to the property in controversy? We are of the opinion that the contract to keep the mares involved in this suit until 1891 is so far separated from, and independent of, the other contracts found by the jury, that the repudiation of it by the appellant cannot deprive the appellee of the benefits he has acquired under the other contracts, which are not within the Statute of Frauds, without his consent. Where there are a number of contracis made at the same time, and as parts of the same transaction, some of which are within the Statute of Frauds and the others not, and they are of such a nature that they can reasonably be considered as separate, those which are not within the Statute will be enforced though the others may fall within the Statute. Brown, Stat. Fr. § 143 et seq. In such cases it is not so important to ascer tain whether the one contract would not have been entered into without the other, as to ascertain whether they are in their nature separate and distinct. In this case, if the contract bad been for the leasing of the land described in the verdict for the period of three years, coupled with the agreement on the part of Templeton to build a house on the premises during the second year, it could not be reasonably contended that Templeton could defeat the appel lee's tenancy by a refusal to erect the house, though it should plainly appear that the one contract would not have been made without the other. So we think Templeton could not devest the title of the appellee in the mares in controversy by a refusal to carry out the agreement in relation to keeping them until 1891. It is probably true that the appellee could not maintain an action against him for such refusal, but we do not think this fact affects the title which the appellee acquired by a contract which is not affected by the Statute of Frauds. Having reached the conclusion that the appellee is the owner of an undivided interest in the property in controversy, it follows that ap pellant cannot maintain this action unless he acquired the whole title to the same by his purchase from Templeton. Mills v. Malott, 43 Ind. 248; Lucen v. Weaver, 49 Ind. 373; Branch v. Wiseman, 51 Ind. 1; Schenck v. Long, 67 Ind. 579. It is contended by the appellant that Templeton and appellee were partners, and that, as such, either partner had the right to sell the property owned by the firm and confer a good title, and that by his purchase from Templeton he acquired the title to the whole of the prop erty in controversy, and has a right to its possession. We do not deem it recessary to decide whether the contract between the parties was one of partnership or not, as the appellant had no power to sell the entire property, whether it was held as partnership property or other wise. The partnership, if one existed, was not one in which the parties contemplated a sale of the property here involved, but it was one in which this property was to be kept for the pur pose of carrying on a particular business. In L. R. A. the entire property. Bates, Partn. § 401; Hewitt v. Sturderant, 4 B. Mon. 453; Cayton v. Hardy, 27 Mo. 536; Mussey v. Holt, 24 N. H. 24S; Hudson v. McKenzie, 1 E. D. Smith, 358. Mr. Bates, in his valuable work on Partnerships, in treating the subject in the section above cited, says: "But I have no doubt but that the power of sale must be confined to those things held for sale, and that the scope of the business does not include the sale of the property held for the purposes of business and to make a profit out of it, and that this only is the true rule." It follows from what we have said that the court did not err in overruling the motion of the appellant for judgment in his favor on the special verdict of the jury, nor did the court err in sustaining the motion of the appellee for judgment in his favor on said verdict. It is contended that the special verdict before us does not find on all the issues in the case, and for that reason the court erred in overrul ing the motion for a venire de novo; but we think the verdict covers all the issues presented by the pleadings in the cause, and that it is not subject to the objection urged against it. The court, over the objection of the appellant, permitted the appellee to prove certain declarations, made by himself, in relation to the ownership of the property in controversy. But these declarations were made while in possession of the property, and under the rule as settled in the cases of Bunnell v. Studebaker, 88 Ind. 338; Kuhns v. Gates, 92 Ind. 66; McConnell v. Hannah, 96 Ind. 102, and Creighton v. Hoppis, 99 Ind. 369, it was admissible as part of the res gesta. Durham v. Shannon, 116 Ind. 403. Finally it is contended by the appellant that the verdict of the jury is not supported by the evidence. We have read the evidence carefully, and while it is conflicting, there is evidence in the record fairly tending to support the verdict. Its weight was for the jury. We cannot disturb the verdict on the weight of the evidence. We find no error in the record for which the judgment should be reversed. Judgment affirmed. Petition for rehearing overruled June 20, 1890. Emily E. VALENTINE et al., Appts., v. Jacob II. WYSOR. 1. Although heirs of a deceased partner cannot maintain an action to compel the surviving partner to account in the absence NOTE.-Dissolution of partnership by death. As a general rule the death of a partner dissolves the firm. First Nat. Bank v. Farmers Deposit Nat. Bank (Pa. 5 Cent. Rep. 505; Scudder v. Ames, 4 West. Rep. 848, 89 Mo. 496; Weise v. Moore, 5 West. Rep. 58, 22 Mo. App. 530. The death of a partner dissolves the partnership, unless in the life of the deceased provision was made for its continuance. Suipe's App. 5 Cent Rep. 149, 114 Pa. 205. of special circumstances, yet such circumstances may exist as to make it proper for equity to entertain such action on their behalf. 2. Heirs of a deceased partner cannot call the surviving partner to account, although they have shown that he has paid all the partnership debts, where it also appears that the estate of the decedent was indebted to him, unless they further make it appear that he has in his hands partnership property in excess of the amount required to reimburse himself. 8. A sale of land by executors under a will giving them power to sell and convey it, either at public or private sale, with or without appraisement, on such terms as to them shall seem best, is not affected by a statute regulating the conduct of sales of land directed by will to be sold, and prescribing the manner of giving notice, conveying, etc.. "unless by the terms of the will different directions are given." 4. The sale of a deceased partner's interest in partnership real estate is authorized by a will giving power to settle, adjust and compromise all debts owing by the testator, to make settlements with his former partners and to sell and convey any or all of his real estate in order to pay and satisfy debts against his estate. 5. A surviving partner may purchase the interest of his deceased partner in the partnersnip business, including partnership real estate, from his properly authorized legal representative, where the transaction is fairly entered into. 6. An executor may convey his testator's interest in partnership real estate to his surviving partner in consideration of an agreeProvision for continuance in copartnership articles. A provision that, in the event of the death of either partner, it is to be optional with the survivor whether the copartnership shall continue, is not an agreement binding on both parties, and cannot be enforced against the heirs of one. Hart v. Anger, 38 La. Ann. 341. Where articles of partnership provide that, on the death of a partner during the partnership term, his executor shall be entitled to the place of the deceased partner in the firm, with the capital of the deceased partner in the firm business, if he elects to come in, he comes in with all the rights and liabilities of a partner, and is personally liable as a partner for debts contracted in the business. Wild v. Davenport, 5 Cent. Rep. 76, 48 N. J. L. 129. Articles which simply provide that his capital shall be left in the business until the end of the partnership term do not require the admission of the executor of a deceased partner in the management or control of the business; and if he does not personally engage in the business he will not be personally liable for debts, though he leaves the testator's capital in the business. Ibid. A stipulation that if either of the partners should die before the expiration of the stipulated period, “the surviving partner shall continue the business for the unexpired term," gives the survivor the power to employ all the partnership effects without material change in the business for the residue of the term, but confers on him no authority to fasten any new debt or liability on the estate of the deceased partner. Vincent v. Martin, 79 Ala. 540. Agreement that survivor shall take decedent's interest. Under an agreement between partners that the survivor should have the right to take the other's interest at his option, the interest of the deceased ment by the latter to pay the partnership debts, where the will authorized him to make settlements with testator's partners of all matters pertaining to the partnership business, to adjust, settle and compromise all debts, claims and demands against the estate and in his discretion to sell and convey so much of testator's real estate as should be deemed necessary to satisfy his debts. 7. A court of equity will not disturb a settlement and final accounting of partnership matters, actually consummate I between a surviving partner and the executor of the deceased partner duly empowered to that end, until it is impeached as fraudulent or unfair or unless collusion between the executor and surviving partner is shown, although the latter thereby became the purchaser of the deceased partner's share. 8. After the unexplained lapse of fourteen years a settlement and accounting in regard to partnership matters between the surviv ing partner and the deceased partner's executor will not be opened up, although the settlement was irregularly made. (March 22, 1890.) APPEAL by plaintiffs from a judgment of the Circuit Court for Delaware County in favor of defendant in a suit to compel an acCounting by defendant for certain property which had belonged to a partnership existing between detendant and plaintiffs' ancestor. Afirmed. The facts sufficiently appear in the opinion. Messrs. O. T. Boaz, W. W. Herod and F. Winter, for appellants: partner ends on notice of an election to take it. Harbster's App. 125 P.. 1. A bill for an account against a surviving member of the firm, to ascertain the value of the testator's interest, may be maintained in the name of the executor as plaintiff; and this valuation will include profits on the share until its purchase, although the share was taken at an appraisement previously made. DeHaven v. Anjer (Pa.) 5 Cent. Rep. 550. Agreement that survivor shall continue the business. Under a partnership agreement that upon the death of either partner the business shall be conducted by the survivor, the estate of a deceased partner is not liable for the debts thereafter contracted. Butcher v. Hepworth, 115 N. Y. 339. In such case the executors of a deceased partner do not become partners in their representative capacity. Ibid. Continuance of business under provisions of the will. A partner may, by his will, provide that the partnership shall continue notwithstanding his death; and if it is consented to by the surviving partner, it becomes obligatory. Burwell v. Cawood, 43 U. S. 2 How. 560 (11 L. ed. 378). The testator may bind his general assets for all the debts of the partnership contracted after his death, or he may limit the liability to funds already embarked, or to any specific investments, and release his general assets from liability to credit ors. Ibid. Nothing but the most clear and unambiguous language, that the testator intended that his general assets be liable for all debt contracted in the continued trade after his death, will justify the court in arriving at such conclusion. lbid. Appellants had an interest in the real estate in controversy as heirs at-law of John Jack, deceased, and they have the right to maintain an action for the protection of such interest. As between the personal representatives and the heirs of a deceased partner, his share of the surplus of the real estate of the partnership, after all its debts are paid, and the equitable claims of the members are adjusted, will be considered and treated as real estate. 1 Parsons, Cont. 5th ed. p. 150 and note; Ilale v. Plummer, 6 Ind. 121. Where the object sought to be recovered is the deceased partner's interest in the partnership real estate, then the heirs-at-law, to whom alone that interest belongs, must sue for the accounting which is necessary to the ascertainment and recovery of such interest. Rev. Stat. 1070. The power given in the will to sell the testator's real estate cannot be extended to embrace partnership real estate in which bis interest was unascertained and indefinite and contingent. Anderson v. Anderson, 31 N. J. Eq. 560; Kistner v. Sindlinger, 33 Ind. 114. The transaction between the executors and the surviving partner, by which it was attempted to transfer to the latter the entire interest of the decedent in all the real estate of Wysor & Jack, was not a sale. Bouvier, L. Dict. Sale; Russell v. Russell, 36 N. Y. 581; Allen v. De Witt, 3 N. Y. 276; Briggs v. Davis, 20 N. Y. 15; Roome v. Philips, 27 N. Y. 357. A power to sell will not authorize an exchange for other property. Where he declares that his capital shall be chargeable, but not his other property, such other property will not be chargeable with the partnership debts. Jones v. Walker, 103 U. S. 444 (26 L. ed. 404). Taylor v. Calloway, 1 Ohio, 232; Ringgold v. Ringgold, 1 Harr. & G. 11; King v. Whiton, 15 Wis. 684; Cleveland v. State bank, 16 Ohio St. 236. That notice of the sale has been given as required by law is a jurisdictional matter. Rev. Stat. 1876, § 588. The absence of notice will invalidate the proceedings. McKeever v. Ball, 71 Ind. 398. The sale to the appellee is voidable by ap pellants, for the reason that the appellee could not become the purchaser of the property. Parsons, Parth. *442; Ccse v. Abeel, 1 Paige, 393; Sigourney v. Munn, 7 Conn. 11; Jones v. Dexter, 130 Mass. 380, 39 Am. Rep. 459, and notes; Martin v. Wyncoop, 12 Ind. 266; Hunsucker v. Smith, 49 Ind. 118; Murphy v. Teter, 56 Ind. 545. Mr. C. E. Shipley, for appellee: Heirs and devisees of a deceased partner have no interest in the partnership estate until the partnership liabilities have all been paid, and then only in such surplus as shall remain. See Deeter v. Seliers, 102 Ind. 458; Thompson v. Lowe, 9 West. Rep. 671, 111 Ind. 972; Lewis v. Harrison, 81 Ind. 278; Jewett v. Meech, 101 Ind. 289; Henry v. Anderson, 77 Ind. 361. Separate creditors, legatees or next of kin of a deceased partner have no locus standi against his surviving partners. There are some exceptions to this rule. But no circumstances have been stated bringing this case within any of the exceptions. See Rossum v. Sinker, 12 Cent. L. J. 202, Editor's note; ld. 241; 2 Lindley, Partn. 4th ed. pp. 1067-1069; Harrison v. Righter, 11 N. of the effects of the concern for the benefit of himself and the estate of his deceased partner. Clothed with the legal authority to dispose of the partnership effects, it follows that the exercise of that authority will be sustained in equity, if the disposi Dividends and profits fairly made cannot be tion be for the common benefit of himself and the called on to pay firm debts. Ibid. The authority of an executor to continue a specifically designated existing interest in a firm does not extend to the use in its business of any other funds of the estate, or to the use of any property which he received in his official character, to raise funds for that purpose. Smith v. Ayer, 101 U. S. 320 (25 L. ed. 955). Under a will by which the testator provides that his executors shall manage and carry on his business for a certain time for the benefit of his wife estate of his deceased partner. Beste v. Burger, 17 Abb. N. C. 169; White v. Union Ins. Co. 1 Nott & McC. 556. On general principles a surviving partner is the owner of the partnership assets; he has the legal title, and it is only in a court of equity that he is treated as trustee. Re Sauls, 5 Fed. Rep. 717; Stanford v. Lockwood, 95 N. Y. 588; Nehrboss v. Bliss, 88 N. Y. 600; Hoyt v. Sprague, 103 U. S. 613 (26 L. ed. 585); Palmer v. Myers, 43 Barb. 513. He holds the assets as quasi trustee, first for the and children, and the only executor who qualifies partnership creditors, and afterwards for the peris a son, who, after the execution of the will, had sonal representatives of the deceased partner, and become a partner of the testator, interested simply a court of equity may intervene to afford relief in a share of the profits, he is entitled to an inter- against waste, negligence, misconduct or other vioest in the profits, as well as to the salary pro-lation of duty on his part. Farley v. Moog, 79 Ala. vided by the will, for the time during which he 148. continues the business as the will requires. Allen's App. 125 Pa. 544. Continuance of business by consent of beneficiaries. Where the legal representatives and all the beneficiaries consent to a continuance of the business by the surviving partners, they cease to have a lien upon the property as against the subsequent creditors of the concern. Hoyt v. Sprague, 103 U. S. 613 (26 L. ed. 585). Surviving partner; duties of. In equity the surviving partner is considered a trustee to pay the partnership debts, and to dispose On the dissolution of a partnership by the death of one of its members, the surviving partner is alone suable at law for partnership debts, and is entitled to the possession and control of the firm assets to enable him to discharge the debts and to settle the affairs of the partnership. Kirkpatrick v. McElroy, 5 Cent. Rep. 68, 41 N. J. Eq. 539; 3 Kent, Com. 64; 2 Lind. Partn. 665; Murray v. Mumford, 6 Cow. 441. It is the right of the representatives of a deceased or bankrupt partner to share in the profits of all business unfinished at the dissolution but completed afterwards, and a valuation of such business as of the time of the dissolution will not be re There are none of the elements of the cotrusteeship between the surviving partner and the executor of the deceased partner. Kimball v. Lincoln, 99 Ill, 578. The conveyance to Wysor was valid. J. Eq. 389; Huston v. Neil, 41 Ind. 504; Stain- | *490, § 15, note 1; Rossum v. Sinker, 12 Cent. ton v. Carron Co. 18 Beav. 146; Hyer v. Bur- L. J. 202, editorial notes and citations, 241. dett, 1 Edw. Ch. 325; 2 Lindley, Partn. 2d Lon- A trustee under a power of sale may ex. don ed. p. 1060; Miles v. Wheeler, 43 11. 123; change the property for other property. Davies v. Daries, 2 Keen, 534; 1 Collyer, Partn. Rossum v. Sinker, supra; Perry, Tr. 4th ed. 444, 288; Ludlow v. Cooper, 4 Ohio St. 1; Roys 769. v. Vilas, 18 Wis. 169; Willson v. Nicholson, 61 Ind. 241; Brown v. Slee, 103 U. S. 828 (26 L. ed. 618); Pfeffer v. Steiner, 27 Mich. 537; Kimball v. Lincoln, 99 Ill. 578; Chambers v. Howell, 12 Jur. 905, 11 Beav. 6; Nelson v. Hayner, 66 Ill. 487; Merritt v. Dickey, 38 Mich. 41; Baird v. Baird, 1 Dev. & B. Eq. 524, 31 Am. Dec. 399; Shanks v. Klein, 104 U. S. 18 (26 L. ed. 635), 13 Cent. L. J. 369; Barry v. Briggs, 22 Mich. 201; Skillen v. Jones, 44 Ind. 136; Rusk v. Gray, 83 Ind. 589; Hinkle v. Reid, 43 Ind. 390; Cobble v. Tomlinson, 50 Ind. 550; 2 Wms. Exrs. 6th Am. ed. 814. An account and settlement by the executor of a deceased partner with the surviving partner of the partnership affairs are binding as between the surviving partner and the persons interested in the estate of the deceased partner, and cannot be impeached save on the ground of fraud. 2 Lindley, Partn. 1070, 1409, 2d London ed. 1060; 1 Collyer, Partn. 382, 249; Barry v. Briggs, 22 Mich. 201; Davies v. Davies, 2 Keen, 534; Smith v. Eterett, 27 Beav. 446; Yeatman v. Yeatman, L. R. 7 Ch. Div. 210; Ludlow v. Cooper, 4 Ohio St. 1. The executors could sell to the surviving partner, and the surviving partner could buy from the executors. Chambers v. Howell, 12 Jur. 905; 1 Lewin, Tr. quired unless peculiar circumstances, exempting the particular case in equity from the operation of the general rules, exist. King v. Leighton, 1 Cent. Rep. 761, 100 N. Y. 392; Wedderburn v. Wedderburn, 22 Beav. 84; Simpson v. Chapman, 4 DeG. M. & G. 154; Murray v. Mumford, supra. The remaining members become trustees of the assets for the purpose of winding up its affairs and distributing its effects, and they will not be allowed to reap a profit made by the use of the partnership assets after dissolution. King v. Leighton, supra; Williams v. Whedon, 39 Hun, 101; Egberts v. Wood, 3 Paige, 517; Skidmore v. Collier, 8 Hun, 50; Hooley v. Gieve, 7 Abb. N. C. 271. As a general rule surviving or solvent partners cannot take the assets of the firm at a valuation as of the time of the dissolution. They have a right to the possession and control of the assets, but it is for the purpose only of satisfying the liabilities of the firm and turning the effects into money in the manner most advantageous to the interests of all concerned. King v. Leighton, supra; McClean v. Kennard, L. R. 9 Ch. App. 342. Where the surviving partner of a firm becomes insolvent and his individual creditors levy attachments on the partnership property, the partnership creditors may come into equity to enforce their right to priority of payment out of the partnership Farley v. Moog, 79 Ala. 148, 58 Am. Rep. assets. 586. The trust relation in fact which imposes the duty of payment of the partnership debts is between the survivor and the representatives of the deceased partner. Williams v. Whedon, Skidmore v. Collier and Hooley v. Gieve, supra; Case v. Abeel, 1 Paige, 893. Rossum v. Sinker, supra. See Parsons, Partn. 1st ed. p. 442, citing Chambers v. Howell, 11 Beav. 6, 12 Jur. 905; Kimball v. Lincoln, su pra; Boaz v. McChesney, 53 Ind. 193; Roys v. Vilas, 18 Wis. 169; Nelson v. Hayner, 66 Ill. 487; Brown v. Slee, 103 U. S. 828 (26 L. ed. 618); Baird v. Baird, 1 Dev. & B. Eq. 524, 31 Am. Dec. 399; Shanks v. Klein, 104 U. S. 18 (26 L. ed. 635), 13 Cent. L. J. 369; Ludlow v. Cooper, 4 Ohio St. 1. Mitchell, Ch. J., delivered the opinion of the court: This suit was instituted by Emily E. Valentine, Martha M. Little, Parmelia R. Gilbert, Mary E. Wood and Florence T. Howe, the children and heirs at-law of John Jack, late of Delaware County, deceased, against Jacob H. Wysor. The questions for decision arise upon the complaint, from which we summarize the fol lowing facts: John Jack, father of the plaintiff below, died testate in the month of October, 1859. At and before that date he was in partnership with the Rights and liabilities of. See note to Patton v. Leftwich (Va.) 6 L. R. A. 569. Application of property to payment of partnership debts. See notes to Darby v. Gilligan (W. Va.) 6 L. R. A. 740. Accounting by. See note to Walling v. Burgess, supra. Equitable rule as to partnership assets. The partnership property of the firm shall be applied to the payment of the partnership debts, to the exclusion of creditors of the individual members of the firm. Fassett v. Tallmadge, 18 Abb. Pr. 53; Bowen v. Billings, 13 Neb. 444; Hutchinson v. Smith, 7 Paige, 26; Story, Eq. § 675. And creditors of the latter are to be first paid out of the separate effects of their debtor, before the partnership creditors can claim anything therefrom. Bowen v. Billings, 13 Neb. 444; Jackson v. Cornell, 1 Sandf. Ch. 350, 3 N. Y. Legal Obs. 90; Fassett v. Tallmadge, 18 Abb. Pr. 53; Wilder v. Keeler, 3 Paige, 167; Payne v. Matthews, 6 Paige, 19; North River Bank v. Stewart. 4 Bradf. 257, 4 Abb. Pr. 409; Butts v. Genung, 5 Paige, 256. Partnership property is a trust fund to the extent of partnership liabilities to be applied in satisfaction of the same. Roop v. Herron, 15 Neb. 80; Innes v. Lansing, 7 Paige, 583; Whitewright v. Stimpson, 2 Barb. 379. But it has never been supposed that the creditors could resort to equity to reach the property, when there has been a wrongful disposition of the assets, until the remedy at law has been exhausted. Walser v. Seligman, 21 Blatchf. 132, 13 Fed. Rep. 416; Dunlevy v. Tallmadge, 32 N. Y. 457. The creditors of a partnership come in through Surviving partners; duties of. See note to Walling the medium of the partner and his equities. Robb v. Burgess (Ind.) 7 L. R. A. 481. 7 L. R. A. v. Stevens, Clarke, Ch. 197. |