of the parties, without any adjudication as to the rights of the other parties, or as to who is entitled to the balance of the land, must be made by motion to modify it. Vandevender v. Moore, 146 Ind. 44 (44 N. E. Rep. 3). Where a decree in partition declares that each of the parties is entitled "to have, hold, use, occupy, possess, and enjoy in severalty" the share allotted to him, the court may, in the execution of its decree, issue an injunction to prevent any of the parties to the suit from interfering with or molesting any other party in the possession of his share. N. J. Revision, p. 115, § 64, applied. King v. Wilson, 54 N. J. Eq. 247 (34 Atl. Rep. 394). A decree setting forth the several interests of the parties and directing a sale for a division of the proceeds is interlocutory and may be modified even after term. Aull v. Day, 133 Mo. 337 (34 S. W. Rep. 578). Alabama Code, 1886, § 3262, construed and applied-jurisdiction of chancery court in proceedings to procure partition sale. Davis v. Bingham, 111 Ala. 292 (18 So. Rep. 660). Ala. Code, 1852, §§ 2677-2690; Code 1886, §§ 3237-3252, 3253-3259, construed and appliedsale for distribution-adverse claims. Hillens v. Brinsfield, 108 Ala. 605 (18 So. Rep. 604). See also Davis v. Bingham, 111 Ala. 292 (18 So. Rep. 660); Sherer v. Garrison, 111 Ala. 228 (19 So. Rep. 228).

A tres

Sec. 626. Parties to actions for partition. passing railroad company which has taken possession of, and used for railroad purposes, a portion of a tract of land owned by tenants in common is not a necessary party to an action between them for partition. Tucker v. Chicago, St. P., M. &O. Ry. Co., 91 Wis. 576 (65 N. W. Rep. 515). When a bill seeks to have land sold for partition, the safer practice is to bring in as parties the personal representatives of deceased tenants in common, unless averment and proof are made that the estate owes no debts. Davis v. Bingham, 111 Ala. 292 (18 So. Rep. 660). In case of the death of a party to a partition proceedings during the pendency of the action it is necessary that his heirs or devisees be made parties before proceeding with the partition; and where it is not shown by the will that the executors of the deceased are invested with and authorized to represent the title, they are not proper parties

to represent the heir or devisee in partition proceedings. Lyon v. Register, 36 Fla. 273 (18 So. Rep. 589). The sale of his interest by one of the parties to a partition proceedings does not necessitate a change of parties or affect the title of a purchaser at a partition sale. Griel v. Randolph, 108 Ala. 601 (18 So. Rep. 609).

Under Ohio

Sec. 627. Allowance of attorneys' fees. Rev. Stat., § 5778, authorizing the court in partition proceed. ings to allow a reasonable fee to plaintiff's counsel, to be taxed as costs in the case, the power conferred is limited to such services as are rendered for the common benefit of all the parties. For services rendered in litigation between parties to the suit, no allowance can be made by the court under this section. Where an attorney makes an agreement with the plaintiff in partition proceedings, whereby he is to receive a certain compensation for his services in the matter, he necessarily waives any right he might otherwise have had to be awarded compensation by the court under the statute. In such case the contract fixes his rights and the measure of the relief to which he may be entitled. Young v. Stone, 55 O. St. 125 (45 N. E. Rep. 57). Ill. Rev. Stat., ch. 106, § 40, applied—allowance of attorney's fees. Hartwell v. De Vault, 159 Ill. 325 (42 N. E. Rep. 789).

Sec. 628. Improvements by co-tenants-Allotment to party making. When a co-tenant has in good faith enhanced the value of part of the premises held in co-tenancy, by making improvements thereon, the fruits of such expenditure and industry will be secured to the one making the improvements in a partition of the common property by allotting to him the parcel so enhanced in value, or as much thereof as represents his share of the whole tract, provided it can be done consistently with an equitable partition of the estate. The good faith required in making the improvements on part of the estate is that they should be honestly made, for the purpose of improving the property, and not of embarrassing another co-tenant, or incumbering the estate, or hindering partition. In directing a partition of real estate, the court may assign to the parties, respectively, such parts of the estate

as will best accommodate them, and be of most value to them, with reference to their respective situations in relation to the property before partition, if it can be done consistently with an equitable partition. Boley v. Skinner, 38 Fla. 291 (20 So. Rep. 1017).

Sec. 629. Trial of title in actions for partition. The adverse claim of title of one who is not a tenant in common can not be litigated in partition proceedings brought to procure a sale of land for distribution. Hillens v. Brinsfield, 108 Ala. 605 (18 So. Rep. 604). In Alabama, when the complainant's bill shows a legal title to an undivided portion of the land and an adverse claim is asserted by a defendant, the court will not adjudicate the conflicting claims, but stay proceedings until they are determined by a suit at law. Harrison v. Taylor, 111 Ala. 817 (19 So. Rep. 986).

Sec. 630. Partition sales. Where it is more advantageous to the parties concerned in a proceeding for an equitable partition, the court may order a sale of the whole property for the purpose of making division. Williams v. Coombs, 88 Me. 183 (33 Atl. Rep. 1073). Water power may be partitioned among tenants in common, but where such partition for any reason is impracticable there should be a sale of the power and a division of the proceeds. Brown v. Cooper, 98 Ia. 444 (67 N. W. Rep. 378; 33 L. R. A. 61; 60 Am. St. Rep. 190). An order in a partition suit, that the property be resold at the risk of the purchaser at the first sale who refused to comply with his bid, is binding on him, it being recited that he had notice and was represented by counsel. A referee, who, in making a sale, enters into a written contract with the purchaser, to furnish a good title within a certain time, cannot, upon failure to do so, and in an action to recover purchase money, deny the whole of his contract to be part of the terms and conditions of the sale, for the purpose of preventing the purchaser from showing the terms of a resale to have been different. Hammond Fr. v. Cailleand, 111 Cal. 206 (43 Pac. Rep. 607; 52 Am. St. Rep. 167). Citing, Boggs v. Hargrave, 16 Cal. 560 (75 Am. Dec. 561).

Sec. 631.

Miscellaneous notes. Where the object of a conveyance purporting to be made by several tenants in common is to effect a partition of land which they hold in common, it must be binding upon all of the parties in order to bind any of them. Center v. Davis, 113 Cal. 307 (45 Pac. Rep. 468: 54 Am. St. Rep. 352). Parties to a partition have the right to insist that the property shall be viewed in its existing physical condition, and if it presents insurmountable objections to a partition in kind the consent of some of the owners that they will relinquish all advantages which might accrue from the particular condition of the property, or be willing to make restitution for parts falling to others for inconvenience to them, cannot compel the other owners to consent to a division in kind. Soniat v. Supple, 48 La. 296 (19 So. Rep. 128). In West Virginia it is held that in partition of land a warranty is implied, because of the privity of the estate. Upon partition the parties are in æquali jure. There is supposed to be mutual confidence, by reason of the privity of estate, and, if the common fund is not so large as the parties suppose, either from defect of title, or of unsoundness as to part, the loss should be borne equally. It is the duty of the court, through its commissioners, to ascertain what estate exists, before proceeding to make a partition of the same, or confirming such partition. Dingess v. Marcum, 41 W. Va. 757 (21 S. E. Rep. 624).

PARTNERSHIP REAL ESTATE.

EPITOME OF CASES.

Sec. 632. As to what constitutes partnership real estate-When treated as personalty. If real estate is bought with partnership funds and for partnership purposes it is partnership property, notwithstanding the deed may be made to individuals of whom the firm is composed. Hayes v. Treat, 178 Pa. St. 310 (35 Atl. Rep. 987). Where tenants in common in a mine form a partnership for the operation of the mine, without the mining property being brought into the

Partnership real is required to pay

partnership as a portion of its capital stock, the property does not, for payment of partnership debts, become partnership property, as between a purchaser of one partner's interest in the mine and the remaining partners. Patrick et al v. Weston, 22 Colo. 45 (43 Pac. Rep. 446). estate is regarded as personalty, so far as it firm debts. As a general rule there can be no partition of firm realty so long as there are firm debts outstanding. This rule is to secure the right of each partner to have firm property applied to the payment of firm debts, in order that he may be discharged from personal liability for them. Therefore, if it appears that the realty will not be called upon to pay firm debts, a partition of the same may be decreed. Molineaux v. Raynolds, 54 N. J. Eq. 559 (35 Atl. Rep. 536).

Sec. 633. Miscellaneous notes. A homestead right in partnership realty cannot be acquired by one partner taking possession and using it as a residence. Brady v. Kreuger, 8 S. Dak. 464 (66 N. W. Rep. 1083; 59 Am. St. Rep. 771). In a conveyance of partnership realty, the partners are treated as tenants in common and all must join; and so long as the interest of a partner remains in him unconveyed, he holds it for the benefit of firm creditors. Alabama Marble & Stone Co. v. Chattanooga Marble & Stone Co., Tenn. (37 S. W. Rep. 1004). Upon the dissolution of a partnership, the assets are applicable to the payment-First, of firm debts due to nonpartners; second, of advances made to the firm by partners; third, of capital contributed by each partner. The residue is divisible, as profits, equally between the partners, unless a different method of division is stipulated for. When by agreement each partner had the privilege of leaving in the business of the firm, as contributions of capital, all or a part of his share of the profits set apart to him at the end of each year, then, upon dissolution, such portions of profits undrawn will be payable as capital. When upon dissolution the partners agree upon a valuation of the firm assets at a sum not in excess of the entire amount of the capital which has been contributed, and the personal property is turned over to a new firm upon the basis of such valuation, and the real estate is retained by the members of the old firm, their respective inter