the daughters being tenants in common of the mortgage, they were held to be tenants in common of the equity of redemption likewise. See 19 Ves. 444. Another rule laid down by the Master of the Rolls in Lake v. Gibson is, that, in all cases of a joint undertaking or partnership, either in trade or in any other dealing, two or more persons who make a joint purchase will be considered in equity as tenants in common, or the survivors as trustees for the representatives of those who are dead. This was the ground of the decision in Lake v. Gibson, or Lake v. Craddock, which shows that a joint speculation in improving land, on a hazard of profit and loss, is treated, in a court of equity, as in the nature of merchandise, and the jus accrescendi is not allowed. In favor of merchandise it is well known that an exception to the rule of survivorship has been long established. It is thus stated in Co. Litt. 182, a: "An exception is to be made of two joint merchants: for the wares, merchandises, debts, or duties that they have as joint merchants or partners shall not survive, but shall go to the executors of him that deceaseth; and this is per legem mercatoriam, which (as hath been said) is part of the laws of this realm, for the advancement and continuance of commerce and trade, which is pro bono publico; for the rule is, that jus accrescendi inter mercatores pro beneficio commercii locum non habet." The exception in favor of merchants was afterwards extended to all traders ; and courts of equity have extended it to the analogous cases of real property purchased for a joint undertaking or partnership in trade, or in any other dealing. It has been remarked by Sir James Wigram, V. C., that the consequences of the admission of the partnership contract were carried to a great length in Lake v. Craddock; "for," observed his Honor, "five original contractors, who had retired for nearly thirty years, were held bound by a subsequent contract, made by the other four, for the purchase of other lands in aid of the original design;" 5 Hare, 384. In Jeffereys v. Small, 1 Vern. 217, where two persons having jointly stocked a farm, and occupied it as joint tenants, the bill was to be relieved against survivorship, one of them being dead, Lord Keeper North was clearly of opinion that the plaintiff ought to be relieved, and said that, if the farm had been taken jointly by them, and proved a good bargain, then the survivor should have the *benefit of it; but as to a stock employed in the way of trade, that should in no case survive. That the custom of merchants was ex- [*153] tended to all traders, to exclude survivorship; and though it was common for traders in articles of co-partnership to provide against survivorship, yet that was more than was necessary; and he said he took the distinction to be, where two became joint tenants, or jointly interested in a thing by way of gift or the like, there the same shall be subject to all the consequences of law; but as to a joint undertaking in the way of trade or the like, it is otherwise; and decreed for the plaintiff accordingly. Lord Eldon, in commenting upon this case, observed :—“ Jeffereys v. Small, has been approved, with some distinctions, in subsequent cases. It was held in that case, that, if two take a lease of a farm jointly, the lease shall survive, but the stock on the farm, though occupied jointly, shall not survive. I have a note of my own of a case of Elliot v. Brown, upon the 25th of July, 1791, in which another distinction was taken by Lord Thurlow, that the law, with reference to the stock, would be the same as to the lease, provided the lease was taken only upon the same purpose as the stock, and the lease was only the substratum; and Lake v. Gibson, was referred to. The observation upon that was, that the purchase of the land was made to the intent that they might become partners in the improvement; that it was only the substratum for an adventure, in the profits of which it was previously intended they should be concerned:" Jackson v. Jackson, 9 Ves. 596. In Elliot v. Brown, (since reported, 3 Swanst. 489,) there was a lease of a farm to two partners; one partner dying, the other agreed to a division of stock with the representatives of the deceased partner, but insisted on holding the lease by survivorship; Lord Thurlow, however, thought the lease was accessory to the trade in which the parties were embarked, and granted an injunction to restrain the surviving partner from proceeding by ejectment to obtain possession of the farm. From Lord Colchester's MSS. See also 1 Vern. 217, n. (3). So, likewise, in Lyster v. Dolland, 1 Ves. jun. 431, where two persons took a building lease, and laid out money in erecting houses, Lord Thurlow held them to be partners in respect to this property; and the survivor was decreed to be a trustee of a moiety for the representatives of the deceased partner. "Though," observed his Lordship, "if two persons take a farm, the lease will survive, yet has it not been determined that if they lay out money jointly upon it, that turns round the estate at law, and makes it equitable? I allude to the case of a joint lease taken or a fee purchased to carry on a [*154] joint trade; the object being to carry on the trade, the court thought it would convert the joint property for the purposes of trade, and making a common advantage. I am now clearly of opinion, that, if partners purchase leasehold or freehold to carry on trade, that will carry with it all those circumstances." See also Crawshay v. Maule, 1 Swanst. 508. A deceased partner may, however, have so conducted himself by repudiating a contract, as for instance a lease of ground for a building speculation, as to preclude his executors from claiming a share in the lease: Reilly v. Walsh, 11 Ir. Eq. Rep. 22. And see Norway v. Rowe, 19 Ves. 143. And if the conveyance is taken in the name of one of the partners, having been purchased with partnership funds, it will be part of the partnership property; Smith v. Smith, 5 Ves. 193; Clegg v. Fishwick, 1 Mac. & G. 294. And see Tibbits v. Phillips, 10 Hare, 355. Where, however, property is not purchased by persons for partnership purposes, but is devised to them as joint tenants, although they make use of it for partnership purposes, they will not be held tenants in common in equity, unless by express agreement, or by their course of dealing with it for a long period, it may be inferred that they meant to sever the joint tenancy. In Jackson v. Jackson, 9 Ves. 591, a testator left leasehold and other personal estate embarked in trade to his two sons as joint tenants, who continued to carry on the trade for twelve years, when one of them died. Lord Eldon overruling the decision of Sir W. Grant, M. R. (reported 7 Ves. 535,) held, that, under all the circumstances of the case, the two sons of the testator were to be considered as tenants in common of his property embarked in trade, from the time they were let into possession, including as well the capital as the profits; for, though there might be cases of distinction between them, the course of dealing for so many years ought to be taken as evidence that they meant to sever the joint tenancy. In the case, however, of Morris v. Barrett, 3 Y. & J. 384, in the Exchequer, a testator devised and bequeathed the residue of his real and personal estate to his two sons, their heirs, executors, and administrators. The two sons, after their father's death, during the period of twenty years, carried on the business of farmers with such estate, and kept the moneys arising therefrom in one common stock, and, with part of such moneys, purchased other estates in the name of one of them, but never in any manner entered into any agreement respecting such farming business, or ever accounted with each other. One of the brothers died; and, upon a bill being filed by the legatees and persons beneficially entitled under *his will, it was admitted, by the counsel of the surviving brother, [* 155] that the estates purchased with the profits of the business and the partnership stock were held by the brothers as tenants in common, but they contended that the leasehold estates and the personal estate which the father bequeathed to them were held by them as joint tenants; that where real estates, conveyed to persons as joint tenants, had been adjudged to have been held by them as tenants in common, the estates had been purchased expressly for the purpose of a partnership, or for a joint speculation, as in Lake v. Craddock, and that no case could be cited in which real estate devised had been converted from an estate in joint tenancy to a tenancy in common: Alexander, C. B., held, that the brothers remained joint tenants of all the property that passed by the will of their father, but were tenants in common of the after-purchased lands. In Dale v. Hamilton, 5 Hare, 369, it was held by Sir J. Wigram, V. C., that a partnership agreement between A. and B. that they should be jointly interested in a speculation for buying, improving for sale, and selling hands, might be proved without being evidenced by any writing signed by, or by the authority of, the party to be charged therewith, within the Statute of Frauds : and that such an agreement being proved, A. or B. might establish his interest in the land, the subject of the partnership, without such interest being evidenced by any such writing. See S. C., 2 Ph. 266; and Darby v. Darby, 3 Drew. 495. Where partners hold real estate for partnership purposes, a question arises, which was not decided in Lake v. Gibson, and Lake v. Craddock, (in which case the defendant Craddock, it will be observed, was both heir-at-law and executor of his father,) whether the real estate is not, even in the absence of any expressed intention of the partners, so absolutely converted into personalty as to be held by the surviving partners, not in trust for the heir-at-law, but for the personal representative, of the deceased partner. It is clearly settled, that where real estate is purchased with partnership capital, for the purposes of partnership trade, it will, in the absence of any express agreement, be considered as absolutely converted into personalty; and, upon the death of one of the partners, his share will not go to his heir- Lord Eldon It seems, however, that where real estate belonged to the partners at the time of their entering into partnership, or has been subsequently acquired by them out of their own private moneys, or by gift, conversion will not, unless by express agreement, take place, although the real estate has been used for the partnership purposes in trade. In Thornton v. Dixon, 3 Bro. C. C. 199, three persons, seised in fee of some land called Broadmoor, entered into partnership for twenty-one years as paper-makers, and mills were erected upon the land, and they declared the uses of the land to themselves in fee, as tenants in common. They afterwards entered into a new partnership for twenty-one years, by deed, taking in four new partners interested in different proportions; and in the partnership deed there was a covenant from the three original partners to stand seised of the land in trust for the co-partnership, in the proportions in which they were respectively interested therein; and a proviso, that, in case any of the partners wished to dispose of his or their shares, he or they might do so, giving notice to the other partners, in order that they might have an opportunity of purchasing. The partnership term expired, and they went on afterwards without any new agreement. During the second partnership they bought a freehold messuage with a little land adjoining, called Low Meerbeck, for the better carrying on the trade, which was enjoyed by the partners as joint tenants. Upon the death of one of the partners, who by purchase from the others had acquired one-half of the whole [*157] the question arose, whether his share *was to be considered as real or personal property. Lord Thurlow, when the cause was first heard, said, he "had always understood that, where partners bought lands for the purpose of a partnership concern, it was to be considered as part of the concern, 3 1 partnership fund, and that, consequently Broadmoor and Meerbeck must be considered as personal estate, and distributable as such." However, when the cause came on again, his Lordship said, he "thought that, had the agreement been that the mills should be valued and sold, it would have converted them into personalty of the partnership; but that the agreement in this case was not sufficient to vary the nature of the property; therefore, that, after the dissolution, the property would result according to its respective nature, the real as real, the personal as personal estate." It does not appear whether Low Meerbeck was purchased out of the partnership or private funds of the partners; if the former was the case, this part of the decision cannot be supported, as it is opposed to the doctrine laid down, Phillips v. Phillips. In Balmain v. Shore, 9 Ves. 500, three persons agreed to enter into partnership for ninetynine years in the business of potters; and it was covenanted by the articles, that, in case of the decease of any of the co-partners, his share should belong to his widow for her life, and that, after her decease, her share of the joint trade should go to her children, and if there was no child, to her executors. Afterwards a china and pot manufactory, and other premises, were purchased by the partners, and conveyed to them as tenants in common in fee. The conveyance then recited the partnership, and declared that the premises should continue to be used in the partnership trade during the continuance of the partnership, and each of the partners covenanted that he would not, during the continuance of the partnership, sell his share, or sue out a writ or file a bill of partition. Sir William Grant, M. R., observed, "Here the parties have limited and defined the extent of the interest the partnership was to have in the real property. Considering themselves as owners of the real estate, as tenants in common, they stipulate that the partnership shall have a certain ownership, notwithstanding that interest in them as tenants in fee. The premises are to be continued to be used in the trade as long as the partnership lasts. They can claim nothing as partners, except through the covenants; subject to the covenants, it goes as real estate. Whether the heir can derive any benefit is another question. The question for my decision is only, whether I can declare this real estate to be personal property, to go as the shares of the partnership. That, I am *of opinion, I cannot declare." [*158] It was stated in the answers, that the purchase-money of the freehold premises was paid, not out of the partnership effects, but out of the separate property of each partner. In Cookson v. Cookson, 8 Sim. 529, A. carried on trade upon land of which he was seised in fee. Afterwards he took one of his sons into partnership for twenty-four years, and conveyed to him in fee certain shares in the land; and, by their articles of partnership, they covenanted that the land should at all times thereafter be held as partnership property, and be considered and treated as part of the joint stock of the trade; and it was provided that, if either partner died or retired during the twenty-four years, his co-partner might purchase his share, at the sum stated to be its value in the last yearly accounts. In the course of the twenty-four years 17007. was expended out of the partnership funds in building on the land. After the expiration of the |