International Bank of St. Louis v. Franklin County. erroneous view of the subject. * * the bank upon which it is drawn. It appears to us that this is an The orders drawn by the officers of the school board are as much evidence of the indebtedness against the city as an order drawn by the mayor and clerk would be. * ** It is quite true that the law provides that the school fund shall be exclusively applied to the payment of the teachers' salaries and the other necessary expenses of the public schools; but suppose the fund is inadequate and insufficient to met these expenses and discharge the orders of the school board, is there no remedy against the city? We have no doubt about the liability of the city on these school orders. And it is the duty of the city authorities to raise money to pay them, as much as to discharge any other just indebtedness against it. If the city authorities neglect to exercise this power, or fail to levy and collect a revenue sufficient to meet its indebtedness, this is no reason why it should be relieved from all liability to those who have just claims against it for teaching its public schools. It seems to us there can be no doubt about the correctness of these principles of law." * * In Board of Commissioners of Floyd Co. v. Day, 19 Ind. 450, it was held that: "The auditor of the county is authorized by law to audit claims against the county, and to draw his warrant or order upon the treasury for their payment. Such order when drawn is in legal effect the promissory note of the county." In Clark v. Des Moines, 19 Iowa, 199, Judge DILLON, speaking for the court, said: "It is claimed by the city that the warrants issued for road purposes are payable out of a 'particular fund,' and that the obligation to pay depends upon the existence and the sufficiency of the special fund. * * There is nothing in the charter which favors the notion that the liability of the city for road debts is conditioned upon the existence of road funds in the treasury. For road debts the city is absolutely and unconditionally liable as for other debts. This liability cannot be controlled or varied by the form in which warrants may be drawn or worded by the municipal officers." In Campbell v. The County of Polk, 3 Iowa, 467, suit was brought on the county warrants, drawn payable out of any money not otherwise appropriated, and it was claimed on behalf of the county that the creditor in order to recover should allege and show that there was money in the treasury; but the court said: "It is as clear to us as any proposition can be that he should not be held to this. International Bank of St. Louis v. Franklin County. He is obliged to have his claim settled by the county judge; the judge cannot pay the money, but is obliged to draw a warrant on the treasurer for it. Now, is there any reason or justice in saying that the creditor must allege and prove funds to be in the treasury, because he took a warrant, or because he took such a one? Upon a refusal to pay, he might return the warrant and sue on the original consideration, and then he would be relieved from that responsibility. In the opinion of this court these warrants were payable generally, and if there was no money in the treasury the county is answerable. All considerations of justice and of good law require this decision." To the same effect are Lyell v. Supervisors, etc., 6 McL. 446; Savage v. Supervisors, etc., 10 Wis. 49; Paddock v. Symonds, 11 Barb. 117. The soundness of the above doctrine cannot, we think, be successfully questioned. Nor can any good reason be shown why a county having, as in the present instance, given her written acknowledgments of indebtedness, should not occupy precisely the same footing as an individual would under like circumstances. If this be not so, of what avail is it to obtain a warrant at all? None whatever. In Mansfield v. Fuller, 50 Mo. 338, where the pay claimed for certain services would come "from the general revenue of the county," it was held that mandamus would not lie until the claim was first reduced to judgment; and in State ex rel. White v. Clay County, 46 Mo. 231, where the warrants were drawn payable "out of any money in the treasury appropriated for county expenses," it was held that the warrants being given for the ordinary indebtedness of the county, mandamus could not lie till judgment on such warrants was first obtained; and in Howell v. Reynolds Co., 51 Mo. 154, where the warrants sued were of similar form to those in the case at bar, it was held in substance that the plaintiff could not recover without alleging and proving "that there were funds in the treasury out of which the warrants might have been paid, and that the treasurer refused to pay them out of such funds." So that in respect to warrants of this sort, the decidedly unique position is taken by this court, that you cannot have mandamus until you have judgment, and that you cannot have the latter unless there are funds in the treasury. In other words, that a warrant holder has no means of compelling the payment of his warrants, except in those cases where the treasury is full and compulsory process altogether unnecessary. The ruling in the last-mentioned case we regard as erroneous, and disapprove Willet v. Brown. of the same, holding, as we do, that the warrants were due and payable, regardless of the fact whether there was money in the treasury for that purpose or not, and that had plaintiff in its petition, and on trial, showed title in the warrants, we should not reverse the judgment, but because this was not done the judgment is reversed and the cause remanded. All concur. Judgment reversed. WILLET V. BROWN. (65 Mo. 138.) Dower in partnership real estate. A partnership bought and improved lands with the partnership funds, and held and treated them as partnership property. The title was taken in the individual names of the partners. One of the partners died, and the firm being insolvent, the lands were sold to pay the firm debts. Held, that the widow of the deceased partner was not entitled to dower in such lands. (See note, p. 270.) UIT for assignment of dower. The opinion states the facts. SUIT A. Cornings, N. M. Givan and D. K. Hall, for plaintiff in error. Wooldridge & Daniel, for defendant in error. NORTON, J. This is a suit instituted by plaintiff, Mary E. Willet, as the former wife of one Silas Price, for the assignment of dower in certain lots in the town of Harrison ville, in Cass county, and for the recovery of damages for the deforcement thereof. It is alleged that her former husband, Silas Price, was seized of an estate of inheritance in said lots, during their marriage, and that defendant by virtue of a sale of the same, made after the death of said Price, by him, as the administrator of the partnership estate of S. Price & Co., conveyed said lots by administrator's deed, in February, 1861, to Alexander Feely, who afterward conveyed the same to Barton Holderman, who afterward conveyed to Alexander McLorky, who afterward, in July, 1867, conveyed to Lititia Jones, who afterward, in December, 1867, sold and conveyed the lots in question to the defendant Robert A. Brown. VOL. XXVII - 34 Willet v. Brown. Defendant, in his answer, alleged that the lots in which dower is demanded by plaintiff were purchased by the firm of S. Price & Co., a partnership composed of Silas Price and Charles Keller, with partnership funds for the purpose of said partnership. That they were treated, held, owned and considered by said firm as partnership property, and that after the death of said Silas Price, they were sold as stated in the petition by defendant as the administrator of the partnership estate of said Price & Company, for the purpose of paying partnership debts, and that said partnership estate was insolvent and insufficient to pay the debts said firm. The replication denies all the averments of the answer except the one charging the insolvency of the firm of S. Price & Co., and on charging that the lots were sold to pay partnership debts. Upon a trial of the cause, the court rendered judgment for the defendant from which plaintiffs have appealed. of As the error complained of is based upon the action of the court in giving and refusing instructions, we copy them herein. First. If the court, sitting as a jury, shall find from the evidence that the real estate in the petition described was purchased by the firm of Silas Price & Co., and conveyed to Silas Price and Charles Keller; that they composed the firm of Silas Price & Co.; that said real estate was paid for by said partners with partnership funds, then said Price and Keller thereby became the owners of, and held said real estate as tenants in common. Second. If the court, sitting as a jury, further finds that said Price has departed this life, that plaintiff, Mary Willet, was the wife of said Price, the court, sitting as a jury, will find the issues for the plaintiffs, notwithstanding it may appear that said real estate was purchased by said firm and paid for out of the partnership funds, unless it shall further appear that it was purchased by said firm for its use in carrying on and transacting its partnership business. The first of these instructions was given, the second was refused, and the court, of its own motion, gave the following: The court, sitting as a jury, declares the law to be, that, though the said Silas Price and Charles Keller, composing the partnership firm of Price & Co., purchased the real estate described in the petition, with partnership funds, and by reason of such purchase held the same as tenants in common; yet they held the same in trust for the payment of partnership debts and liabilities; and if the Willet v. Brown. court finds from the evidence and the admissions in the pleadings that said property was purchased out of the partnership funds, to be used and applied to partnership purposes, and that the same was treated by said partners as a part of said partnership stock, and that said partnership was insolvent at the time of the death of said Price, and that it became necessary to sell said property, and the same was sold for the purpose of paying the partnership debts, then the plaintiff is not entitled to dower in the same, and the finding will be for the defendant. The instruction given by the court of its own motion seems to be fully warranted by the cases of Carlisle, Admr., v. Mulhern & Keyser, 19 Mo. 56; Duhring v. Duhring, 20 id. 174. In the former case the question before the court was identical in principle with the one presented here. The contest was between the administrator of Carlisle, and Keyser, the administrator of the partnership estate of Carlisle & Keyser, as to the disposition of a fund, the proceeds of the sale of a leasehold interest in real estate which had been acquired with partnership funds of the firm of Carlisle & Keyser. GAMBLE, Judge, who delivered the opinion, observes: “It is insisted that, as the lease in this case was made to David Carlisle and Rufus Keyser, in their individual names, it was not partnership property. It appears sufficiently that these partners, being brick-makers and brick-layers, acquired their interest in the property by the advance of partnership money as an investment of so much of their partnership funds, to be held for their joint benefit. There has been some contrariety of decision in the English and American courts upon the question, of whether freehold estates in land purchased by a partnership with their joint funds became partnership property to be treated as a fund for the payment of partnership debts. Without a labored examination of these decisions, the result of the authorities may be stated to be that real estate purchased out of partnership funds to be used and applied to partnership purposes, and treated and considered by the partners as partnership stock, is to be deemed and considered, so far as the legal title is concerned, as estate held in common and not in joint tenancy; but as to the beneficial interest it is held in trust, each holding his property in trust for the partnership until the partnership account is settled and the partnership debts are paid. It is a trust arising from actual or implied agreement of the parties, and from the mutual relation in which they stand to each |