property in which the buyer may not, if he
chooses, insist on an express warranty against
latent defects.

not, by any inspection or examination, at the
time discover; the buyer did not, because in the
nature of things he could not, rely on his own
judgment; and, in view of the circumstances of
the case and the relations of the parties, he
must be deemed to have relied on the judgment
of the Company, which alone of the parties to
the contract had or could have knowledge of the
manner in which the work had been done. The
law, therefore, implies a warranty, that this
false work was reasonably suitable for such use
as was contemplated by both parties. It was
constructed for a particular purpose and was
sold to accomplish that purpose; and it is in-
trinsically just that the Company, which held
itself out as possessing the requisite skill to do
work of that kind and, therefore, as having
special knowledge of its own workmanship,
should be held to indemnify its vendee against
latent defects, arising from the mode of con-
struction, and which the latter, as the Company
well knew, could not, by any inspection, dis-
cover for himself.

For the reasons stated, we are of opinion that
the court did not err in the law of the case, and
the judgment must be affirmed.

arrangement with Hamilton, whereby the latter undertook, among other things, to prepare all necessary false work and, by a day named and in the best manner, to erect the bridge then All the facts are present which, upon any being constructed by the Bridge Company, view of the adjudged cases, must be held essenHamilton to assume and pay for such work and tial in an implied warranty. The transaction materials as that Company had up to that time was, in effect, a sale of this false work, condone and furnished. Manifestly, it was contem-structed by a Company whose business it was to plated by the parties that Hamilton should com- do such work; to be used in the same way the mence where the Company left off. It certainly maker intended to use it, and the latent defects was not expected that he should incur the ex-in which, as the maker knew, the buyer could pense of removing the false work put up by the Company and commence anew. On the contrary, he agreed to assume and pay for, and, therefore, it was expected by the Company that he should use, such false work as it had previously prepared. It is unreasonable to suppose that he would buy that which he did not intend to use, or that the Company would require him to assume and pay for that which it did not expect him to use, or which was unfit for use. It is suggested that, as Hamilton undertook to erect the bridge in a thorough and workmanlike manner, he was not bound to use the false work put up by the Company, and that if he used it in execution of his contract, he did so at his own risk. This is only one mode of saying that, in the absence of an express warranty or fraud upon the part of the Company, the law will not, under any circumstances, imply a warranty as to the quality or sufficiency of this false work. But the answer to this argument is that no question was raised as to its sufficiency; that, while Hamilton must be charged with knowledge of all defects apparent or discernible upon inspection, he could not justly be charged with [118] knowledge of latent defects which no inspection or examination, at or before the sale, could possibly have disclosed. The jury have, in effect, found the false work to have been insufficient, in that the piles were not driven deep enough; that had they been properly driven, the work would have answered the purposes for which Hamilton purchased it; and that he could not have ascertained such defects in advance of an actual test made during the erection of the bridge. It must be assumed that the Company knew, at the time of sale, that Hamilton could not, by inspection, have discovered the latent defects which were subsequently disclosed. And if it be also assumed, as it fairly may be, that Hamilton, being himself a bridge builder, knew that there might be latent defects in this false work, caused by the mode of its construc-in a deed conveying real property, signed and ac1. It is the law in several States, that the grantor tion and beyond his power by mere inspection knowledged, with a blank for the name of the grantto ascertain, it must not be overlooked that he ee, may authorize another party, by parol, to fill up also knew that the Company, by its agents or the blank. servants, were or should have been informed as to the mode in which the work had been done. That he did not exact an express warranty against latent defects, not discoverable by inspection, constitutes, under the circumstances, no reason why a warranty may not be implied against such defects as were caused by the mode in which this false work was constructed. the cases of sales by manufacturers of their own articles for particular purposes, communicated to them at the time, the argument was uniformly pressed that, as the buyer could have required an express warranty, none should be implied. But, plainly, such an argument impeaches the whole doctrine of implied warranty, for there can be no case of a sale of personal

In

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. S.

BESSIE ALLEN ET AL.,

v.

THOS. F. WITHROW ET AL.

(See S. C., Reporter's ed., 119-130.)

Authority to fill blank in deed-when and how
may be given-trust, when arises under state
law-how established as to personal property-
partnership lands.

2. But there are two conditions essential to make
a deed thus executed in blank operate as a convey.
ance of the property described in it; the blank must
be filled by the party authorized to fill it, and this
must be done before or at the time of the delivery
of the deed to the grantee named.
3. No trust in relation to real property could be
established under the Statute of Iowa, in force when

NOTE.-Partnership realty; conveyance of; rights
81 U. S., XX., 797.
of partners to convey. See note to Gibson v. Warden,

Deeds executed in blank as to name of grantee.
A valid deed should contain the names of the
Findlay, 25 Cal., 80; Hoffman v. Porter, 2 Brock.,
grantor and grantee. Co. Litt., 3 a; Middleton v.
156; Mus. Val. T. Co. v. Ward, 13 Ohio, 120; Boone
v. Moore, 14 Mo., 420.

not pass the title. Garnett v. Garnett, T. B. Mon.,
A deed which does not designate the grantee can-
545; Newton v. McKay, 20 Mich., 1.

[119]

the deed in question in this action was signed, ex-|
cept by an instrument in writing executed in the
same manner as a deed of conveyance.
4. So far as personal property is concerned, a trust
may be established by parol evidence; but such evi-
dence must be clear and convincing, not doubtful,
uncertain and contradictory. Declarations of a pur-
pose to create a trust not carried out are of no value,
nor are direct promises to that effect unaccompa-
nied with considerations turning them into con-
5. Real property owned by a partnership and pur-
chased with partnership funds is, for the purpose of
settling the debts of the partnership and distribut-
ing its effects, treated in equity as personal prop-
[No. 155.]

tracts.

erty.

Argued Dec. 11, 12, 1883. Decided Jan. 14, 1884.

Bluffs in Iowa, a company was formed, con-
sisting of B. F. Allen of Des Moines, Ebenezer
Cook and John P. Cook, of Davenport, in that
State, to purchase land necessary for the stations
and use of the railroad company between De
Sota and Council Bluffs, and also other lands
adjoining or near the several stations located by
the engineer of the company. The agreement
between the parties was at the time a verbal one,
but in April, 1870, a memorandum was signed
by them, giving its terms and reciting also the
purchases which in the interval had been made.
Among other things, it provided that Allen
should furnish the money to make thepurchases,
and provide for the taxes and expenses; that

ON APPEAL from the U.S. Circuit Court for the title to the property should be taken in his

Iowa.

The history and facts of the case fully appear in the opinion of the court.

Messrs. G.W.Kretzinger and C. C. Cole, for appellants.

Messrs. Geo. G. Wright and Thomas F. Withrow, for appellees.

Mr. Justice Field delivered the opinion of the court:

name as trustee for the joint account of the parties, and that the net proceeds should be divided between them as follows: one undivided half to Ebenezer Cook, one fourth to Allen, and the remaining fourth to John P. Cook. The agreement also provided that Allen should keep an account of the amounts paid out by him, and of the sales, receipts and expenses, so that from his books a statement might at any time be made showing the condition of the property, the In November, 1875, one John F. Tracey, now amount sold and the prices received; that the deceased, executed to the defendant, Thomas F. sales should be made by John P. Cook and AlWithrow, a deed of a large amount of property, len on the best terms they could obtain and by real and personal, of great value, situated in their joint action when practicable; that, from Iowa. It is alleged that this deed, though ab- the proceeds of the sales, Allen should retain solute in form, was made in trust for one Thusie the interest on his advances, the taxes on the M. Allen, also now deceased, and the present property and the expenses incurred, and then suit is brought by her heirs at law to charge pay the advances made for the purchase of the Withrow, as trustee, and compel him to account property; and that the money and property reto them for the property. Withrow denies the maining in his possession, including notes and alleged trust and claims that he owns, in his own contracts, after such payments, should be reright, an undivided half interest in the proper-garded as net profits, and be divided in kind, ty, and that the other undivided half belongs to his co-defendant, Wm. L. Scott, as assignee of Tracey. Scott has filed a cross-bill setting up his title and praying that it may be established. The court below sustained the claims of both defendants and dismissed the bill, and the case is brought here on appeal from its decree.

The facts which led to the execution of the deed in question and upon which a trust is sought to be established, collected, so far as practicable, from a mass of conflicting testimony contained in a record of over 850 closely printed pages, are substantially as follows: [121] In the year 1868, when the Chicago, Rock Island and Pacific Railroad Company, a corporation created by the State of Illinois, was about to extend its road from Des Moines to Council

or converted into money and then distributed,
and in either event according to the respective
interests of the parties as mentioned above.

During this time, Tracey was president of the
railroad company, and though he is not named
in the agreement, it is conceded that he was en-
titled to one half of the interest represented by
Ebenezer Cook, and had a right to control and
dispose of it. It appears that he had, previously
to the formation of the land company, suggested [122]
to different parties that in case a litigation, then
pending, affecting the company, should termi-
nate favorably, a good opportunity would be af-
forded to make a successful venture in the pur-
chase and sale of land along the line of the road
west of Des Moines; and that upon this sug-
gestion the land company was formed. It ap-

name. Field v. Stagg, 52 Mo., 534; S. C., 14 Am. Rep.,
435; Burnside v. Wayman, 49 Mo., 356; Inhab. of
South Berwick v. Huntress, 53 Me., 89; Duncan v.
Hodges, 4 McC., 239; Camden Bk. v. Hall, 2 Green,
383; Bk. v. Hammond, 1 Rich., 281; Bridgeport Bk.
v. N. Y. & H. R. R. Co., 30 Conn., 231; Gibbs v. Frost,
4 Ala. (N. S.), 720; Gourdin v. Commander, 6 Rich.,
497; Van Etta v. Evenson, 28 Wis,, 33; S. C., 9 Am.
Rep., 486.

A deed in due form, signed and acknowledged by
the grantor,does not become his deed until the name
of the grantee is inserted therein; an agent cannot
insert the grantee's name, in the absence of the
grantor, unless his authority be in writing. Upton
V. Archer, 41 Cal., 85; S. C., 10 Am. Rep., 266; Cross
v. State Bank, 5 Pike, 525; Williams v. Crutcher, 5
How. (Miss.), 71; S. C., 35 Am. Dec., 422; Cummins
v. Cassily, 5 B. Mon., 435; Mano v. Werthing, 3 Scam.,
26; Wallace v. Harmstad,3 Harr., 468; Bragg v. Fes- Deeds executed in blank by one properly author-
senden, 11 Ill., 544; Burns v. Lynde, 8 Allen, 305;ized and afterwards filled up by the real party in in-
Bashford v. Pearson, 9 Allen, 305; Graham v. Holt, terest constitute a good conveyance. Lamar v.
3 Ired., 300; Ingram v. Little, 11 Ga., 174.
Simpson, 1 Rich. Eq., 71; S. C., 42 Am. Dec., 345.
A blank deed signed, sealed and delivered and aft-
erwards filled up is no deed. Duncan v. Hodges, 4
McCord, 239; S. C., 17 Am. Dec., 734.

A deed in which the name of the grantee is inserted after acknowledgment conveys no title. Viser v. Rice, 33 Tex., 139.

The insertion of part of the grantee's name was held not to invalidate the deed. Devin v. Hiner, 29 Iowa, 297.

It has been held that parol authority to an agent is sufficient to authorize him to fill in the grantee's

In the hands of innocent purchasers for value, deeds in which the grantee's name bas been filled in after execution have been held valid. Ragsdale v. Robinson, 48 Tex., 397; McNabb v. Young, 81 Ill., 11; Pence v. Arbuckle, 22 Minn., 417.

[123]

pears, also, that in a conversation with Withrow,
one of his counsel in the litigation referred to,
upon the subject of a venture of this kind, Tra-
cey had expressed a desire that his friends should
be benefited by the venture; and that he, With-
row, should participate in it, advising him to
bear this in mind in making out his bill for
legal services. After the land company was
formed and the agreement made had been acted
upon, Tracey was reminded by Withrow of this
conversation, and of the understanding he had
from it, that he was to have an interest in the
venture. Tracey not only admitted a similar
understanding on his part, but declared that
Withrow had an interest in it, and in March,
1871, obtained from Ebenezer Cook a statement
in writing to that effect. This statement, after
referring to the agreement of the land company
and the provision, that one half of the profits
arising from the purchase and sale of real es-
tate under it were to be his property; and recit-
ing that it was understood that Withrow and one
Johnson should have an interest in the profits
of the venture, the amounts of which had not
been specified, but were to be thereafter fixed
by Tracey and himself, and that the remainder
of said profits (if any) should be equally divided
between Tracey and himself, declares that he,
Cook, holds the interest specified in the agree-
ment and all amounts to be received thereon, in
trust for the uses and purposes mentioned; that
is to say, to pay from such receipts to Withrow
and Johnson such amounts, respectively, as
should be agreed upon as aforesaid, and to hold
the one half of the remainder in trust for Tracey,
his heirs and assigns.

Subsequently, in October, 1872, Withrow,
for the nominal consideration of $1.00, exe-
cuted to Tracey a transfer of his interest in this
contract and declaration of trust. In Decem-
ber following, Johnson executed to Tracey a
similar transfer upon a like consideration.

Withrow testifies that this transfer was made by him not for the purpose of conveying the ownership of his interest to Tracy absolutely, but to facilitate a settlement with Allen of the affairs of the land company, which were embarrassed by improvident expenditures, and with an understanding that if Tracey realized anything out of the venture he should give Withrow his share. This testimony is corroborated by the statement contained in the deed subsequently executed by Tracey to Scott, that the transfer by Withrow was inade upon an agreement that his interest should be protected for his benefit.

the contracts, declaration of trust and assign-
ments mentioned.

Previously to the execution of this deed to
Withrow, Allen had become bankrupt, and in
due course of proceedings his property had been
transferred to Hoyt Sherman, as assignee in
bankruptcy. Subsequently a suit was com-
menced in the Circuit Court of the United States
involving the title to the whole of the property
of Allen in the land company. In that suit,
the Charter Oak Life Insurance Company and
others were complainants; and Allen, and Sher-
man, his assignee in bankruptcy, were defend-
ants. Withrow intervened and filed a cross-bill,
claiming partition of the interest of Tracey held
by him under the deed of November, 1875. By
the decree of the court, entered in the fall Term
of 1877, which appears to have been made upon
a compromise settlement, Withrow's title to an
interest of one fourth in the property of the
land company was recognized, and set apart to
him in severalty. The value of this interest had
been previously appraised by competent par-
ties, acting under the authority of the court, at
$80,000.

Tracey died in February, 1878. In December previously he addressed a communication to the defendant, William L. Scott, in which, after reciting that there had been reserved to him and parties interested with him a one fourth interest in the land company, which he had deeded to Withrow, he says as follows: "I hereby acknowledge that of the interest so belonging to me, you (William L. Scott) were the original owner of one eighth of the entire company, or one half owner of the interest standing in my name, and I hereby authorize T. F. Withrow to transfer and deed to you one half of the interest conveyed by me to him, you paying Mr. Withrow one half of all expenses and charges the interest held by me may be liable for."

Soon afterwards Tracey made a formal deed to
Scott conveying to him an undivided half of the
lands, notes, contracts and mortgages awarded
and set apart to Withrow by the decree of the
Circuit Court of the United States under the
deed of Tracey to him of November 16, 1875,
and instructing Withrow to transfer that inter-
est to Scott. This deed recites, among other
things, that Withrow had transferred his inter-
est to Tracey under an agreement between them
that the saine should be protected by Tracey
for his (Withrow's) benefit; that one half of
Tracey's interest in the lands and assets con-
veyed by his deed to Withrow was for the use
of Withrow in his own right; that the other
In November, 1875, Tracey executed to With-half was in trust for Tracey, his heirs and as-
row a deed of all the interest which he then
had, or which might thereafter accrue to him
in the lands, notes and bills receivable arising
from the contracts, declarations of trust and
assignments mentioned. This deed recites the
original agreement between Allen and the two
Cooks, the subsequent declaration by Ebenezer
Cook, of the interest of Withrow, Johnson and
Tracey in the proceeds of the venture and the
transfers executed in 1872 by Withrow and
Johnson to Tracey and, in addition to convey-
ing the property, authorizes the grantee, in his
own name, to enforce a proper partition of it,
and to collect for his own use any sums of
money which might accrue to the grantor under

signs; and that Withrow was "entitled, in his
own right, to one half, in value, of all lands,
contracts, notes and mortgages which have been
awarded and set apart to him, and holds the
other one half thereof in trust for the said John
F. Tracey, his heirs, executors and assigns."

[124]

Upon these deeds of Tracey-the one to him of November 16, 1875, and the deed to Scott of December 12, 1877-the defendant, Withrow, [125] relies to defeat the suit of the complainants. Their ground for charging him as trustee is the alleged purpose of Tracey to give to Mrs. Allen the beneficial interest in the property held by him in the land company, and its execution by his deed to Withrow. Their story of this

[126]

purpose and its supposed execution is this: that
sometime in June, 1875, Allen and his eldest
daughter accompanied him, by his invitation,
on an excursion to St. Paul, Minnesota, given
by the directors of the Northwesten Railway
Company; that during the excursion Tracey
had several conversations respecting Allen's cir-
cumstances since his bankruptcy, and especially
as to its effect upon the property and affairs of
the land company, and that they resulted in
Tracey's promising to give his interest in the
property of that company to Mrs. Allen, with
whom he was well acquainted, and of whom he
had pleasant recollections; that after the return
of Allen to Chicago he went to the office of
Withrow and engaged him to prepare the deed
for Tracey to sign; that Withrow accordingly
drew a deed of transfer of Tracey's interest, speci-
fying it to be one undivided fourth of the net
profits arising from the joint account under the
contracts and declaration of trust; that the name
of the grantee was left in blank; that Allen
went to New York, taking this deed with him,
and that Tracey there, on the 11th day of Oc-
tober, 1875, signed and acknowledged it and
delivered it to Allen; that Allen returned to Subsequently, according to the testimony of
Des Moines and delivered the deed to his wife; Withrow, the deed was shown to Ransom, who
and that the reason why the name of the grantee advised that the interest of Tracey in the prop-
was left in blank was because he feared the im-erty of the land company was one half instead
portunities of his creditors to obtain the prop-of one fourth; and who, at the request of Al-
erty, and that Tracey authorized him to insert len, drew another deed for Tracey to sign simi-
her name in the blank, or the name of any other lar to the one in blank, except that it represent-
person that might be deemed best.
ed Tracey's interest to be one half of the prop-
erty, and made Withrow the grantee.

Tracey; and that he has ever since maintained
this position.

The statement that the deed with a blank for
the name of the grantee was drawn to trans-
fer an interest to Mrs. Allen, or to create a trust
in her favor, is contradicted by the testimony
of Withrow, who says that it was a substitute
for one drawn to Schuyler R. Ingham, recom-
mended by him as a proper person to take charge
and dispose of the interest of Tracey in the
property of the land company; that the execu-
tion of the deed to Ingham having been delayed
for a long time, Allen suggested that a new
deed with the name of the grantee in blank
should be sent to Tracey so that some other per-
son, if Ingham was not acceptable to him,
might be inserted, stating that Tracey had prom-
ised to convey his interest to Withrow, and that
if, in winding up the affairs of the company,
there was anything left of it, he would give it
to Mrs. Allen. The deed itself shows, by its
use of the masculine pronoun, in all places
where reference to the grantee is made, that the [127]
draftsman never contemplated its execution to
a woman.

The statement that Withrow consented to act as trustee of Mrs. Allen, or that the deed of Tracey to him was executed upon any trust for her, is also denied by Withrow; and it is inconsistent with the declarations and conduct of both himself and Tracey. Immediately upon the request of Allen for the property, and under date of December 8,1877, he wrote to Tracey, informing him of the decree of the Circuit Court, and the request of Allen and the refusal to comply with it in the absence of instructions from him. "You will remember," he writes, "that one eighth interest of the entire speculation was awarded to me. The other eighth of the property recovered by me I hold subject to your order. I have understood from Mr. Ransom and have inferred from your conversation with me, that before the commencement of this suit you intended to be liberal to Mrs. Allen in disposing of your share; and Mr. Allen relying upon this, has requested me to convey the one eighth interest which I hold for you to him. In view of the fact that I have never received definite instructions from you to make any disposition of it, and the further fact that Mrs. Allen is now dead, I have not felt at liberty to make any conveyance without instructions from you in writing."

The story further is, that, afterwards, Allen consulted Charles T. Ransom, an attorney at law at the time in Des Moines respecting the insertion of the name of a grantee and, whilst in consultation, another lawyer by the name of Edmunds came into his room and the whole matter of Tracey's rights in the property of the land company being discussed, it was the opinion of both Edmunds and Ransom that his interest was one half; and for that reason it was resolved to procure a new deed specifying such to be his interest instead of one fourth; that the question of a proper person to whom such new conveyance should be made, was discussed, and the name of Withrow was finally settled upon as trustee; that Withrow was advised of this fact and assented to it; that thereupon another deed, substantially like the first, except that its recital showed Tracey's interest to be one half, was prepared by Ransom and taken by him to New York, and was there executed by Tracey, to whom the reason for changing the form of the deed was explained; that Ransom brought this second deed to Iowa and handed it to Allen, who delivered it to his wife, and it was kept by them until February 24, 1876, when it was sent to Ransom for his use in preparing a petition of intervention, and other pleadings, in the case of the Charter Oak Life Insurance Company and others against Allen, and Sherman, his assignee, then pending in the circuit court; that it was not delivered to Withrow until about the time the decree was rendered in 1877; that, after that decree, Allen called upon Withrow to turn the property over to the heirs of his deceased wife; and that Withrow, then, for the first time, claimed to own one eighth of the property, or one half of what had been recov-fit of Mrs. Allen. ered, in his own right, and refused to convey the other half except upon the written order of asserts a right to one eighth interest in the en- [128]

No answer was made to this letter, nor was any instruction given by Tracey as to his wishes or intentions on the subject, except such as are found in the paper addressed to William L. Scott, under date of December 12,1877, and in the deed executed to him soon afterwards; and these, as already seen, negative the idea that Withrow was to hold the property for the bene

In this communication, it is seen, Withrow

[129]

But if we admit the statement of the complainants as to the alleged promise of Tracey to give his interest in the property of the land company to Mrs. Allen and as to the execution of the two deeds, the one in blank and the one to Withrow, there is no case shown for the relief prayed by the bill.

The promise alleged to have been made in conversation with Allen and his daughter on the trip to St. Paul was without consideration, good or valuable; there was no relationship, by blood or marriage, between Mrs. Allen and Tracey. It was the promise of a pure donation to be subsequently made; and, until executed, it was, in a legal view, valueless.

tire property of the land company, as having | veyed to Withrow, "lands, lots, notes, conbeen awarded to him. If this claim of an in- tracts and mortgages" are specified as awarded terest in the property had been a false and fraud- and set apart to him. So far as the real propulent one, set up to defraud others, we should erty is concerned, no trust in relation to it could expect some denial of it from Tracey; but in- be established under the Statute of Frauds of stead of that we find its correctness affirmed by Iowa in force when the deed of Tracey was him. It is difficult to believe that a claim for signed, except by an instrument in writing exeproperty, estimated at the time to be worth cuted in the same manner as a deed of convey$40,000, would have received recognition from ance. The language of the statute is “Declaraone who, if the claim was fraudulent, knew it tions, or creations of trust, or powers in relation to be so. On the contrary, we should expect to real estate, must be executed in the same that it would meet with instant and indignant manner as deeds of conveyance, but this prorepudiation. vision does not apply to trusts resulting from the operation or construction of law." The statute also enumerates, among the contracts in reference to which no evidence is competent unless it be in writing and signed by the party or his lawfully authorized agents, those for the creation or transfer of any interest in lands, except leases for a time not exceeding one year." So far as the personal property conveyed to Withrow is concerned, it must be admitted that a trust may be established by parol evidence; [130] but such evidence must be clear and convincing; not doubtful, uncertain and contradictory, as in this case. The evidence must consist of something more than loose conversations with third parties. The declarations of the grantor The deed in blank passed no interest, for it relied upon must be made at the time of his had no grantee. The blank intended for the conveyance or whilst he retains an interest in name of the grantee was never filled, and until the property, and be so connected with the confilled the deed had no operation as a convey-veyance as to justify the conclusion that it was ance. It may be and probably is the law in made or is held in execution of the purposes Iowa, as it is in several States, that the grantor declared. Declarations of a purpose to create in a deed conveying real property, signed and a trust not carried out are of no value, nor are acknowledged, with a blank for the name of the direct promises to that effect unaccompanied grantee, may authorize another party, by parol, with considerations turning them into conto fill up the blank. Swartz v. Ballou, 47 Iowa, tracts. 188; Van Etta v. Evenson, 28 Wis., 33; Field v. Stagg, 52 Mo., 534. As said by this court in Drury v. Foster, 2 Wall., 33 [69 U. S., XVII., 781]: "Although it was at one time doubted whether a parol authority was adequate to authorize an alteration or addition to a sealed instrument, the better opinion at this day is, that the power is sufficient." But there are two conditions essential to make a deed thus executed in blank operate as a conveyance of the property described in it; the blank must be filled by the party authorized to fill it, and this must be done before or at the time of the delivery of the deed to the grantee named. Allen, to whom it is stated the deed was handed, with authority to fill the blank and then deliver the deed, gave it to his wife without filling the blank, and she died with the blank unfilled.

The deed of Tracey to Withrow embraced
real as well as personal property. It was for the
purchase and sale of real property that the land
company was formed, and by the terms of the
contract of association all the property of the
company remaining after payment of taxes, ex-
penses and advances, was to be deemed profits,
and divided in kind or converted into money
and then distributed. Though the declaration
of trust by Ebenezer Cook speaks of the inter-
est of Tracey in the land company as an inter-
est in its "profits," that term is used with refer-
ence to its meaning as declared in the contract
of association, to which that declaration of trust
refers, and to which it is annexed.

In the partition by the decree of the Circuit
Court of the United States of the interest con-

The deed of November 16 was handed to Ransom to be delivered to Withrow without any declaration from Tracy as to the purpose for which it was made or the considerations by which it was supported. Nothing was said at that time which could change the absolute character of the instrument, nor is there any evidence of any declarations subsequently made by parol or in writing, by the grantor with respect to that deed, except such as are found in the communication to Scott and the deed to him.

It does not affect the conclusion, therefore, whether we treat the whole property conveyed to Withrow as real or personal property or as consisting of both. Real property owned by a partnership and purchased with partnership funds is, for the purpose of settling the debts of the partnership and distributing its effects, treated in equity as personal property. It matters not whether it be so treated here. In any view, no legal trust was created with respect to the property in favor of Mrs. Allen which she could have enforced had she been living, or which can now be enforced by her heirs in law. Decree affirmed.

True copy. Test:

James H. McKenney, Clerk, Sup. Court, U. 8.