Sinnott vs. The Chicago & Northwestern R. Co. place, it is no concern of the respondent whether the company has acquired that right as against the owners of those blocks or not. It does not appear that those owners have made any objection to such occupancy, and the respondent cannot make the objection for them. In Trustees v. M. & L. W. R. Co. 77 Wis. 158, an ordinance of the city provided for laying the railroad track in the center of the street. It was laid entirely on one side of the center, and it was claimed for that reason the track was not legally laid. But the claim was negatived because the city had made no complaint. The ruling is in point here. In the second place the railway company showed a prima facie title to blocks 110 and 111. It proved two deeds in due form, one executed by James Blake, and the other by Charles Howard, purporting to convey to the railway company both blocks. These deeds were executed and recorded in 1873 and 1875, respectively. The only attack made upon them is contained in an affidavit of three of the petitioners, in which each of them swears to his opinion that Blake and Howard never owned the blocks, and that the deeds were obtained by the railway company fraudulently, for the purpose of acquiring color of title, in order that it might avail itself of the ten-years statute of limitations. Without stopping to inquire what would be the legal effect of the facts, were they proven, which the affiants say they believe to be true, it is sufficient to say of these affidavits that they prove nothing. No fact or circumstance is stated in support of the opinions therein expressed, and they amount to nothing more than affidavits of the suspicions of the affiants. The deeds in question make good color of title in the railway company, and its actual and uninterrupted adverse possession under them for ten years establishes its right to maintain its tracks in the street as against any person claiming an interest in those blocks. Our conclusion is that the court erred in granting the Clarke vs. McAuliffe. order appointing commissioners. Such order must therefore be reversed, and the circuit court will dismiss the proceedings. By the Court.- Ordered accordingly. CLARKE, Respondent, vs. MCAULIFFE, Appellant. December 17, 1891-January 12, 1892. Statute of frauds: Agreement to purchase lands: Partnership. 1. An oral agreement between two persons to purchase land together, each to pay half of the purchase money, and to take the title in the name of one for their joint use and benefit, is void under the statute of frauds. 2. The fact that such persons were partners in the practice of law, and APPEAL from the Circuit Court for Milwaukee County. For the appellant there was a brief by Winkler, Flanders, Smith, Bottum & Vilas, and oral argument by F. C. Winkler. For the respondent there was a brief by Turner, Sutherland & Timlin, and oral argument by W. H. Timlin. They contended, inter alia, that where there is a parol agreement between two persons to extend their partnership dealings to, and to include the purchase of, real estate, and the funds of the copartnership have been used in the purchase of real property pursuant to such agreement, and the title to said real estate taken in the name of one partner, the other partner may, on proof of these facts, establish his interest in said real estate. Bird v. Morrison, 12 Wis. 138; 2 Story, Eq. Jur. 1207. Clarke vs. McAuliffe. ORTON, J. This action is brought for an adjustment of · the partnership matter between the parties, and for an accounting, and for the dissolution of the copartnership; also for an injunction against the defendant from interfering with or disposing of any of the assets of the copartnership, and for a receiver of the partnership property, credits, and effects; and for an order that the defendant deliver to such receiver the moneys, property, and books of account of the partnership. The partnership between the parties was formed May 11, 1885, for the practice of the law; but outside of the legitimate affairs of said copartnership there is the following allegation in the complaint: "That on or about August 21, 1890, it was agreed by and between the plaintiff and defendant that the said plaintiff and defendant should purchase the north seventy-three acres of the west half of the northwest quarter of section thirty-four, township seven north, of range twenty-one east, from Carl Zuege and Wilhelmina, his wife, for the sum of $36,500, and that this plaintiff should procure the money to make the second payment thereon." This is all there is of the contract. It is followed by these allegations: "That thereupon said defendant took from the funds of said copartnership the sum of $100, to pay the same to the said Carl Zuege for said land, and obtained a land contract, by the terms of which the remainder of the purchase price of said land should be paid, $12,000 on November 15, 1890, and the remainder of the $36,500 in ten years from November 15, 1890, with interest at six per cent.; and that the defendant obtained such land contract, and paid the said sum of $100 therefor, but took the said land contract in his own name for the convenience of said copartnership, but in trust for said copartnership." This is followed by the following subsequent agreement: "The plaintiff talked with the defendant, and proceeded to make arrangements to procure Clarke vs. McAuliffe. money, and it was agreed that the plaintiff and plaintiff's brother should raise the money aforesaid necessary for the first payment of said land by and between said plaintiff and the defendant and the brother of the plaintiff." On or about October 11, 1890, the defendant sold his interest in said land for an advance or profit of $23,000, in the absence of the plaintiff, and concealed it from the plaintiff and from the brother of the plaintiff. The prayer of the complaint is that this $23,000 should also be paid to the receiver by the defendant. The plaintiff, in his affidavit for an injunction and receiver, stated that the first above contract was made "in a conversation in the office of the plaintiff and defendant." It follows, therefore, that this contract was oral, and not in writing. The defendant, in his sworn answer, denied that any such contract was made, and alleged that he was entitled to receive large sums of money, greatly in excess of the sum of $100, from the moneys of said firm, and that at the time of making his contract with said Zuege he took from the funds of the firm the sum of $100, and that he immediately, with the knowledge of the plaintiff, charged the same to himself on the books of the firm. The defendant denied that the plaintiff had any interest in said purchase, and alleged that he made the purchase on his own account, and for his own use and benefit exclusively. In a subsequent affidavit the plaintiff stated that he never knew and never was informed that the defendant had charged the $100 to himself until after his return to the city after the sale of the land by the defendant, and that he has never had possession of any book or seen any book of account wherein such charge is made. The plaintiff does not deny that the defendant did charge himself with the $100 in the books of the firm at the time he received it. So that fact stands admitted, as also the fact that he did not use or pay it as partnership money. Clarke vs. McAuliffe. The order appealed from requires the defendant to pay over to the receiver, to abide the event of the suit, the whole amount of money he received upon the sale of said land, or the proceeds of said sale in any form of securities. The learned counsel of the defendant contends that the agreement set out in the complaint is void by the statute of frauds, it not being in writing. The agreement is that "the plaintiff and defendant" should purchase the land. It is clearly an agreement between two persons to purchase the land together and jointly, each to pay his half of the purchase money, and to take the title in the name of one for their joint use and benefit; and one of the parties repudiated the agreement, and sold the land as his own, and converted the proceeds to his own use, and the other party now seeks to obtain his share of the proceeds on the strength of the agreement. There seems to have been a subsequent oral agreement that the land should be paid for by the plaintiff and his brother and the defendant, and held for their joint benefit. The remedy sought is predicated on the agreement. It will be observed that the contract itself is silent as to this purchase being a partnership matter, and the first $100 payment was most clearly not partnership money. First. This oral contract is void by the statute of frauds, it not being in writing and signed by the party charged. Rasdall's Adm'rs v. Rasdall, 9 Wis. 379; Tucker v. Grover, 60 Wis. 240. In this last case a verbal contract was entered into between the plaintiff and defendant and one McArthur that the plaintiff and McArthur should look up and enter, in the name of the defendant, pine lands, the defendant furnishing the money; and when they had been so entered the defendant was to convey one third of the land to the plaintiff and McArthur, in consideration of |