Woodward

This is an action on a negotiable promissory note secured by a mortgage given by the defendant McAdam to Shoobert, Beale & Co., and by the latter assigned to this plaintiff. The court below granted a decree of foreclosure as prayed for, and from such decree the defendant Jackson, who is a grantee for value by deed from McAdam given subsequent to the mortgage, has appealed.

The point made is that the mortgagee is a fictitious person—that the mortgage having been made to a partnership doing business under a fictitious name, creates at most only an equity, and as against a subsequent grantee for value of the.mortgagor establishes no lien.

There is no doubt that a partnership is not a person, either natural or artificial, and it cannot at law be the grantee in a deed or hold real estate. Legal title must vest in some person, but if the title be made to all the partners by name they hold the legal title as tenants in common. In equity, however, a different rule prevails. There the real purpose for which the property was acquired is considered, and under the principles of trusts the court will regard real estate held for partnership purposes as personal property, so far as such…