terest, and therefore is admissible. But no reason is perceived why every declaration accompanying the act of possession, whether in disparagement of the claimant's title or otherwise qualifying his possession, if made in good 36 faith, should not be received as part of the res gestae; leaving its effect to be governed by other rules of evidence."

In 2 Wharton on Evidence, section 1157, the author quotes from Cook v. Harris, 61 N. Y. 448, this statement in regard to the admissibility of such declarations: "The declarations of a party in possession are admissible in evidence against the party making them, or his privies in blood or estate, not to attack or destroy the title, for that is of record and of a higher and stronger nature than to be attacked by parol evidence. They are competent simply to explain the character of the possession in a given case." The rule is thus concisely stated, but with the necessary qualification, in 1 American and English Encyclopedia of Law, second edition, 680: "The admissions of a person in disparagement of his title, but not in contradiction of a record title, are competent evidence against those claiming under or through him so far as there is identity of interests." And see the cases cited in support of the qualification.

In Dodge v. Freeman's Saving etc. Co., 93 U. S. 379, 23 L. ed. 920, it was decided that: "The declarations of a party in possession of land are, as against those claiming under him, competent evidence to show the character of his possession, and the title by which he held it, but not to sustain or destroy the record title."

In the case of Carpenter v. Hollister, 13 Vt. 552, 37 Am. Dec. 612, a very closely analogous question was presented. The issue of fact in the case was as to the competency of a prior grantor in the chain of title to make a deed. The declarations against his interest of the grantee in that deed, a predecessor in title of the defendant, were offered upon that question. The court after reviewing the authorities and calling attention to what in fact had been decided in the cases cited, said: "In this case, the plaintiff insists that the concessions of the grantor made while in possession not explaining or qualifying that possession, are admissible to defeat his title, apparently good of record, even against an innocent, bona fide purchaser, on good consideration. This we think dangerous and unprece dented." In the case cited the person whose declarations were offered was living at the time of the trial, while in this case Catherine Phillips was dead at the time that these declarations

were offered; but in our opinion 37 this in no way affects the question, the objection is to the character of the alleged declarations as bearing upon the validity of a deed apparently sufficient, and it can make no difference as to the admissibility of such declarations whether the declarant is living or dead.

We are therefore satisfied, both upon reason and the great weight of authorities in cases where this question has been considered, that the declarations of Catherine Phillips, made while the record title was in her, as to the validity and genuineness of the deed from John Phillips to her, were not admissible against this defendant.

Motion and exceptions sustained.

That the Declarations of a Grantor anterior to the delivery of the deed are evidence against him and those claiming under him, see Newlin v. Osborne, 4 Jones, 157, 67 Am. Dec. 269; Horton v. Smith, 8 Ala. 73, 42 Am. Dec. 628. See, too, Mobile Sav. Bank v. McDonnell, 89 Ala. 434, 18 Am. St. Rep. 137. But it is held in Carpenter v. Hollister, 13 Vt. 552, 37 Am. Dec. 612, that the declarations of a grantor in possession are not admissible to defeat the grantee's title, where they are not of a character explaining or qualifying the posBession.

WHITE v. FARNHAM.

[99 Me. 100, 58 Atl. 425.]

IN A DORMANT PARTNERSHIP the funds of the visible partner, and those appearing to be his, although actually belonging to the partnership, are, with respect to the rights of innocent third persons, to be regarded as his sole property. (p. 266.)

PARTNERSHIP, DORMANT, Who can Assert Claim Against Property of. If there is a dormant partnership of which the public has no notice, one cannot, under a mortgage purporting to be executed for the partnership by the dormant partner, assert title to property against a trustee in bankruptcy of the other partner, who, without notice of such partnership and without knowledge that the property did not belong wholly to the estate of the bankrupt, sold it as such trustee. (p. 266.)

F. J. Martin, H. M. Cook, W. R. Pattangall and B. C. Additon, for the plaintiff.

P. H. Gillen, T. B. Towle, F. H. Appleton and H. R. Chaplin, for the defendant.

102

SPEAR, J. This is an action of trover brought to recover of the defendant, as trustee in bankruptcy of M. M

Grant, the value of certain personal property which came into the hands of the defendant from the estate of said Grant and was duly sold by him, as trustee, as an asset of said estate.

The plaintiff claims under a mortgage, which, he says at the time of said sale, had vested in him a valid lien upon the whole of the property sold. The facts are as follows: M. M. and Samuel Grant were copartners in the lumber business in the fall of 1894, and as such carried on lumbering operations, extending into 1895. After this year's business was practically concluded, in the fall of 1895, M. M. having become dissatisfied with his business associations with Sam, desired to sever his partnership relations with him, and claims that he did so in full; but the plaintiff contends otherwise and asserts that a qualified partnership between them was continued through all the years covering his transactions with M. M. Grant. His own statement of the interview which established the dormant partnership is this: "They met on the street and Madison says "They are annoying me, Sam's creditors are annoying me every time I am here,' and he says, 'I would like 103 to have his name stricken from the firm and he remain what we call a blind partner.' I thought I understood the law that that could be done." "Well, I says that will be all satisfactory. He told me what he had said to me, that I should have my pay first, and that would be all satisfactory, and it was left in that way, and from that time out everything was between him and I. He used his name in our settlement and that was all there was to that affair." The plaintiff therefore knew of and agreed to Sam's becoming a "blind partner” in the fall of 1895, and thereafter did all his business with M. M. not as a member of the firm but as an individual. January 26, 1898, he took, in a settlement involving these alleged blind partnership transactions, M. M.'s individual note for over eighteen thousand dollars. With respect to the signature on the note he says: "This is signed by Madison Grant. He signed that-all of the papers to me after the first year, after we made the agreement he should be a blind partner, when Sam's name was dropped."

Thus it appears from the plaintiff, himself, that after 1895, he not only knew it, but entered into an agreement with the Grants, that Sam should be continued as a blind or dormant partner, and that M. M. should be held out to the community as doing business alone. Not only did the plaintiff agree to this, but all of his own business transactions with M. M. were

entirely consistent with the agreement, and calculated to present M. M. to the public as the only visible partner. This alleged business arrangement between the plaintiff and the Grants continued until November 12, 1898, when M. M. Grant went into voluntary bankruptcy. In the meantime the mortgage, under which the plaintiff claims, was executed on the eighteenth day of October, 1898, by Samuel Grant, the alleged "blind partner" without the knowledge or consent of M. M. Grant. It is signed "M. M. and Sam Grant by Sam Grant," and covers all the horses, sleds, harnesses and other utensils employed by M. M. in his lumbering operations. All of this property whenever acquired was ostensibly the sole property of M. M., and he appeared to all the world to be the only owner.

104 For the purposes of this case, we have assumed that the plaintiff's statement of facts, as above given, is true. This was not, however, admitted at the trial, nor do we wish to be understood as finding that Sam Grant was a "blind partner." Wə concede it to be so for the purpose, only, of considering the issues in the light of the plaintiff's own contention with respect to the facts, and one which, if true, is decisive of this case.

Plaintiff's counsel in their brief state the issue to be "in order to prove his own title the plaintiff must satisfy the court that on October 18th, at the time the mortgage was given, Sam Grant was a partner of Madison M. Grant." If counsel use the term "partner" in the ordinary sense, their position, as a matter of legal statement, is undoubtedly correct; but if, by thə use of the term, they mean such a qualified relation to M. M. as the plaintiff has described by the phrase "blind partner," such relation, if existing, would not authorize Sam Grant to so dispose of the partnership property as to conclude the rights of an innocent third party, dealing in good faith with the ostensible partner as an individual and without knowledge to the contrary.

Neither upon authority nor reason does the law permit a transaction so manifestly calculated to work an injury as that claimed by the plaintiff. What was attempted in this case clearly illustrates the pernicious operation of a law which would allow it. M. M. Grant was ostensibly doing business as an individual. As such he established his credit. Parties trusting him had a right to rely upon his ability and honesty, as well as his property, for their security. But having given credit and acted upon the assumption that they were dealing with the

visible partner only, then Sam Grant, who had never before been heard of in connection with M. M., except by the plaintiff, suddenly discloses his blind relationship and, within the time sufficient to enable him to sign two names to a mortgage, conveys to the man, who was in the "blind partner" secret, every vestige of the operating property of which M. M. Grant was ostensibly or actually possessed. Those who had given credit to M. M., upon his apparent and declared ownership of this property, were, by the stroke of Sam's pen, abruptly informed that they had based their 105 credit upon a shifting sand. Such a transaction cannot be permitted to stand. The law will not allow it. The question involving the rights of parties in their dealings with silent or dormant partnerships was, at an early day, considered by both our own court and that of Massachusetts.

In French v. Chase, 6 Me. 166, the plaintiff in replevin claimed title to the goods in question under a sale of them by Walter Brown. The defendant pleaded property in Brown and Quimby, as partners, and that he as a deputy sheriff attached the goods by virtue of a writ against them, issued upon a partnership note, signed by Quimby only. It was admitted that Brown and Quimby were partners and that the firm was insolvent. The partnership, however, was a secret one and at one time was carried on in the name of Quimby, and afterward by Brown in his own name, Quimby having no apparent interest in it. Such was the case when the plaintiffs made the purchase. The defendant contended that he had a right to the goods by virtue of the attachment, on the ground that the note was given for a partnership debt, and came within the well-known principle that partnership funds must first be applied to partnership debts, and that, until such debts are satisfied, a creditor of one of the firm cannot appropriate any portion of them. But the court says (page 169): "The question here is, whether this principle is applicable in the present case, when Brown alone was the ostensible owner, and the existence of any partnership was wholly unknown to the plaintiffs. To extend the principle thus far would be unreasonable and unjust, and further, we apprehend, than it has ever been carried by any judicial decision. The reason upon which the doctrine is founded cannot exist where the business of a secret partnership is all transacted by and in the name of one of the partners, who appears to all the world as the sole owner."