Ebbert's Appeal , 1872 Pa. LEXIS 6 ( 1872 )

The opinion of the court was delivered, May 13th 1872, by

Agnew, J.

We are pressed by the able argument for the appellant, and also by the doubt intimated by the auditor, to reverse this decree. But we cannot, without overruling a number of decisions heretofore made. The principle of stare decisis is too valuable, and the equity set up to overturn it too subtle to induce us to override so many cases. It is certainly determined, in a long train of decisions, that as to purchasers of the title and creditors having liens on it, a deed to persons who are in fact partners, but who take the title to themselves as tenants in common, must stand as the'foundation of their rights, and govern in the distribution of the proceeds of a sale of the title. Partnership creditors cannot by parol evidence change the effect of the deed, and convert lands so individually held into assets of the partnership, and thereby dislodge and postpone the otherwise preferred liens of individual creditors. The following decisions sustain these propositions : Hale v. Henrie, 2 Watts 143; McDermot v. Laurence, 7 S. & R. 438; Ridgway, Budd & Co.’s Appeal, 3 Harris 177; Kramer v. Arthurs, 7 Barr 170; Lancaster Bank v. Myley, 1 Harris 544; Cumming’s Appeal, 1 Casey 268; Erwin’s Appeal, 3 Wright 535. Reliance has been placed upon Abbott’s Appeal, 14 Id. 234. But in that case our Brother Read cites these cases without disapprobation, and distinguishes them from the case before him on the ground|that they related to pur-chasers and creditors, while the case he was determining was one between the partners themselves. The distinction is just, and was fitly taken in Abbott’s Appeal. As between the partners themselves, it is perfectly proper to infer a resulting trust for the firm, and to treat the, proceeds of the land as assets of the partnership, where it is clearly shown that they so regarded the title themselves, and had paid for it out of the partnership funds. But partners who take a deed in their individual right as tenants in common, stand in a very different relation to the public. Their act tends to mislead both purchasers and creditors trusting the apparent state of the title. It is unlike a resulting trust for* a third party, whom it would be a fraud to deprive of his estate. Hence the trust for him, if valid, will be protected against all persons, except when affected by the recording acts, or a want of notice. But partners being the owners of the money which pays for the title, have the power of directing its application to suit their own purposes, and can, if they choose, always secure the identity of its character in the kind of title they take for it. If, therefore, they take the title to themselves as tenants in common, instead of as partners, they by their own election stamp the character of the title taken as to those who afterwards deal with them. Hence it is that Judge Sergeant, in Hale v. Henrie, puts the case in part on the ground that it would be contrary to the Statute of Frauds, in stamping a character on the title inconsistent with that appearing on the deed and record, to the prejudice of third persons. He refers to the recording acts also, but evidently in view only of their spirit, which forbids secret conveyances. It is contended by the appellant that a creditor is not within the recording acts, and not entitled to notice of the true character of the title, and cites for this Rodgers v. Gibson, 4 Yeates 111; Lessee of Heister v. Fortner, 2 Binn. 46; Cover v. Black, 1 Barr 498, and Beilton’s Appeal, 9 Wright 176. It is true, that the recording acts extend only to purchasers and mortgagees, and their effect is to defeat an unrecorded deed as to subsequent purchasers and mortgagees without notice of it, while [a creditor is not protected against the unrecorded deed, but must stand on the title as it was in fact when his lien attached. This is very different, however, from the use of parol evidence to alter the effect of the deed itself which displays the title. To alter a deed so as to make it of different import, offends against the spirit of all those laws made to protect the public against fraud and secret titles, and prevent a change of right to the prejudice of those who deal upon the apparent legal operation of the instrument. The covinous character of the change in the title in such case is of a kind with that forbidden by the statutes of 13 and 27 Elizabeth, and the Statute against Frauds and Perjuries. Of the merits of the debts of the respective claimants in this case we know nothing ; but it is very clear that honest creditors, who are led to give credit to the individual partners on the apparent state of the title in them individually, ought not to be met afterwards by a uhange of face in the deed by which it takes a partnership aspect contrary to its terms.

Before leaving this ease, we must express our disapprobation of the omission to give us a paper-book on part of the appellee. Under the influence of the able argument and array of authorities presented by the appellant, the appellee was in danger of a reversal of his decree. The pressure of business upon this bench demands all the aid we can receive from counsel, who owe a duty to their client and to the court to furnish an argument and all the authorities within reach.

Decree affirmed, with costs.