this limited interest will often be held to pass under a conveyance by which he has attempted to transfer a greater right.89

§ 147. The transfer of his interest, however, does not operate to introduce the grantee into the firm, but, if complete and final, it is ordinarily said to dissolve the partnership,90 leaving to the grantee the right to the value of the share acquired as determined by the final accounting.

An exception to this rule of dissolution exists in joint-stock companies, mining partnerships, and others in which, by statute or agreement, the shares of the members are transferable.

The Uniform Partnership Act declares that an assignment by a partner of his interest in the partnership does not per se dissolve the partnership, or, as against the other partners in the absence of agreement, entitle the assignee to interfere in management or administration, or to require information or inspect the books, but merely gives him the right to receive the assigning partner's share of the profits. If dissolution does ensue, the assignee may then receive his assignor's share, and may require an account since the date of the last accounting agreed to by all of the partners.91

§ 148. Seizure of partner's share by his individual creditor.Notwithstanding this rather intangible nature ascribed to the partner's interest in the partnership property, it is in most States still regarded by the law courts as so far tangible that it may be seized and sold upon a common law writ of execution at the suit of his individual creditor,92—a thing not permitted,

89 See Carrie v. Cloverdale Co. (1891), 90 Cal. 84, 27 Pa. 58.

90 See post, §§ 363, 364. 91 Sec. 27, Appendix.

92 See, în general, Newhall v. Buckingham (1853), 14 Ill. 405, Mechem's Cas. 788; Hershfield v. Claflin (1881), 25 Kan. 166, 37 Am. Rep. 237, Mechem's Cas. 792; Johnson v. Wingfield (1897), 42 S. W. 203 (Tenn. Ch.), Gilm. Cas. 515, Burd. Cas. 406; Williams v. Lewis Mech. Part.-9

129

(1888), 115 Ind. 45, 17 N. E. 262, 7 Am. St. R. 403; Nixon v. Nash (1861), 12 Ohio St. 647, 80 Am. Dec. 390; Morrison v. Blodgett (1836), 8 N. H. 238, 29 Am. Dec. 653; Hutchinson v. Dubois (1881), 45 Mich. 143, 7 N. W. 714; Whigham's Appeal (1869), 63 Pa. St. 194; Moody v. Payne (1817), 2 Johns. Ch. (N. Y) 548, Ames' Cas. 296; Johnson v. Evans (1844), 7 Man. & G. 240, Ames' Cas. 286;

in the absence of a statute, in the somewhat similar case of the interest of a corporator in a corporation. Though the right to do so in some way is thus generally recognized, the greatest conflict exists as to the method of making the right available, while complete uncertainty usually exists as to the extent and value of the interest so seized and offered for sale. In a few States, the levy is only upon the general interest of the partner, and tangible property is not disturbed.98 In a few States, the creditor may levy upon and sell the partner's interest in specific items of partnership property; 4 but usually where any actual seizure is permitted, while the creditor may seize the whole property for the sake of reaching the partner's interest therein, he may not levy upon and sell specific portions of the property.95 In view of the uncertainty of the interest sold, and

Filley v. Phelps (1847), 18 Conn. 294.

In a few States the creditor, having made a levy, may have the aid of equity to ascertain the extent of the interest. See Place v. Sweetzer (1847), 16 Ohio 142, Gilm. Cas. 511.

One partner may buy his copartner's interest at such a sale: Baird v. Baird (1837), 21 N. Car. (1 Dev. & Bat. Eq.) 524, 31 Am. Dec. 399; but not if there was any unfairness: Perens v. Johnson (1857), 3 Smale & Gif. 419.

Of course, a levy upon the partnership property to reach a single partner's interest must give way before a later levy at the suit of a partnership creditor if there is not enough for both, Eighth Nat. Bank v. Fitch (1872), 49 N. Y. 539, Burd. Cas. 403; Walter v. Herman (1901), 110 Ky. 800, 62 S. W. 857, Gilm. Cas. 575; although, as will be seen, post, § 463, a prior levy by a partnership creditor upon individual property does not give way to a later levy by an individual creditor:

See Meech v. Allen (1858), 17 N. Y. 300, 72 Am. Dec. 465, Mechem's Cas. 677, Ames' Cas. 326, Gilm. Cas. 499; In re Sandusky (1878), 17 Nat. Bank. Reg. 452, Burd. Cas. 421.

93 See Hutchinson v. Dubois, supra; Blumenfeld v. Seward (1893), 71 Miss. 342, 14 So. 442 (by statute); Sanborn v. Royce (1882), 132 Mass. 594, Gilm. Cas. 510; Daniel v. Owens (1881), 70 Ala. 297; Richard v. Allen (1887), 117 Pa. 199, 11 Atl. 552, 2 Am. St. R. 652.

It will be observed that if the partner's interest was merely that of a cotenant subject to a lien, the property could be seized, subject to that lien.

94 See Fogg v. Lawry (1878), 68 Me. 78, 28 Am. Rep. 19; Randall v. Johnson (1881), 13 R. I. 338, Gilm. Cas. 508; Trafford V. Hubbard (1886), 15 R. I. 326, 4 Atl. 762, 8 Atl. 690; Johnson v. Wingfield, supra; Hershfield v. Claflin, supra (dictum).

95 See Gerard v. Bates (1888), 124

the hardship to the other partners which must inevitably result from seizing the firm property in order to reach an interest which may ultimately prove of little value to the purchaser, it is a case pre-eminently calling for legislation providing a more appropriate method,96 and a few States have statutes regulating it.97

§ 149. The Uniform Partnership Act provides that a partner's interest in specific partnership property is not subject to attachment or execution, except on a claim against the partnership, but it provides that a judgment creditor of a partner may have an order of court charging the partner's interest with the payment of the judgment and that a receiver

Ill. 150, 16 N. E. 258, 7 Am. St. R. 350; Branch v. Wiseman (1875), 51

Ind. 1.

96 See the remarks, on this subject, in Sanborn v. Royce, supra.

97 Thus, for example, see Iowa Code, 1897, § 3977; Aultman v. Fuller (1880), 53 Iowa 60, 4 N. W. 809, Gilm. Cas. 526

In Kentucky, see Holmes v. Miller (1897), 41 S. W. 432, 19 Ky. L. R. 660, Burd. Cas. 417.

In Georgia, by special statute (Code, 1911, § 3190), the partner's interest may be reached by garnishment of the partnership. See Willis v. Henderson (1871), 43 Ga. 325, Ames' Cas. 311, Burd. Cas. 418.

The individual creditor of one partner cannot reach his interest by garnishment of the partnership, under the ordinary statute.

Neither can such a creditor reach by garnishment the interest of one partner in the debts due to the partnership. Peoples Bank v. Shryock (1877), 48 Md. 427, 30 Am. Rep. 476, Gilm. Cas. 513; Johnson v. King (1845), 6 Humph. (Tenn.)

233, Ames' Cas. 306; Hoaglin v. Henderson (1903), 119 Iowa 720, 94 N. W. 247, 97 Am. St. R. 335, 61 L. R. A. 756.

The partnership cannot be subjected to bankruptcy procedure on the bankruptcy of one partner only. Sec. 5h. Same rule ordinarily applies under State insolvency proceedings. See Dearborn v. Keith (1849), 5 Cush. (Mass.) 224; Hanson v. Paige (1855), 3 Gray (Mass.)

239.

An action in equity, e. g., a creditor's bill would not ordinarily be an appropriate method of reaching one partner's interest in the partnership as there is this legal remedy; but where it was alleged that there was collusion between the debtor and his partner to transfer and cover up his interest a creditor's bill to set aside the transfer and subject the interest to the claim of the creditor was sustained. Henderson 7. Farley Nat. Bank (1898), 123 Ala. 547, 26 So. 226, 82 Am. St. R. 140.

98 See Sec. 25, Subd. C, Appendix.

of such interest may be appointed through whom the order may be made effectual.99

That Act also provides that "the interest charged may be redeemed at any time before foreclosure, or, in case of a sale being directed by the court, may be purchased without thereby causing a dissolution:

(a) With separate property, by any one or more of the partners, or

(b) With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold."1

It is obvious that these provisions raise some new and interesting questions, not yet settled by the authorities.

2. Of the Title to Personal Property.

§150. May be held in firm name. As has been already stated, the title to personal property may be acquired, held and disposed of by the partnership in the firm name, whether the name be a personal or a purely artificial one, and this is the proper and appropriate manner in which the title to such property should be taken, held and transferred. Bills of sale and chattel mortgages may therefore be made to or by the partnership in the firm name, subject to the disabilities, hereafter to be noticed, attaching to the execution of instruments under seal. Choses in action, as well as choses in possession, may be acquired or transferred in the name of the firm

§ 151. May be held in the name of one partner for the firm.— But personal property may be partnership property although the title is taken or held in the name of one partner only. It may have been so taken and held with the consent of all of the

99 Sec. 28, Appendix. Compare Brown v. Hutchinson [1895], 2 Q. B. 126, Burd. Cas. 419 under English Act.

1 Sec. 28 (2), Appendix.

2 Henderson v. Gates (1889), 52 Ark. 371, 12 S. W. 780; Hendren v.

Wing (1895), 60 Ark. 561, 31 S. W. 149, 46 Am. St. R. 218, Mechem's Cas. 797, Burd. Cas. 161; Chicago Lumber Co. v. Ashworth (1881), 26 Kan. 212; Kellogg v. Olsen (1885), 34 Minn. 103, 24 N. W. 364.

partners, in which case their rights to it, as between themselves, are clear; but it may also have been so taken or held by one partner in violation of his duty to the firm, but in this case also, as has been seen, equity regards it as partnership property and will protect the rights of the other partners in it.

§ 152. Title is in partners collectively.-Whether, however, the title taken be in the firm name or in that of one partner for the firm, the beneficial ownership of the property is not in the partners as so many separate individuals, but in the partners collectively and as such. The partners are, as has been seen, neither mere joint tenants nor tenants in common, but tenants in partnership, while each partner is merely the possessor of that peculiar interest already described, known as the partner's share. One partner, therefore, as has been already noted, acting merely in his individual capacity, can, while the partnership purposes remain unsatisfied, neither sell, assign nor mortgage any specific chattel, but simply all or part of his residuary interest in the whole assets.

It will be observed that the authority of one partner to sell partnership property, as a partnership act, is not here in question.

3. Of the Title to Real Estate.

§ 153. Older rule-Legal title to real property cannot ordinarily be taken in firm name.-Partnership real estate stands upon peculiar footing. It was the common law conception that title to real estate could vest only in some person, either natural or artificial (like a corporation), which could be identified by a particular name. A partnership was not a person, but merely a group of individuals, each having his individual name. The group or partnership, not being a distinct legal person, could have no distinctive group name. While, therefore, a partnership might have the beneficial ownership of land or might deal in land, it could not take title to land by a conveyance to it merely in the firm name. An attempted conveyance to the firm

3 See ante, §§ 146, 147.