The opinion of the court was delivered by

The principal question involved in this case is wh.ether the allegations of the answer were necessary to a complete determination of the rights of Mrs. Triekett and Rankin in the property. These allegations are: That at the time of the -purchase of the one-half interest therein by Mrs. Triekett the property was jointly owned by Rankin and Joseph P. Triekett, as partners; that the partnership owed Rankin a debt growing out of the partnership business; and that he *309 was entitled to a lien thereon for the amount of such indebtedness. If the rights of Mrs. Trickett and Rankin, respectively, in the property in controversy could be fully determined without reference to these issues, which were definitely made in the pleadings, then Joseph P. Trickett was not a necessary party defendant and the judgment and order of the court were right; otherwise they were wrong.

It seems to us that the bare statement of the proposition compels the answer that the court erred. Mrs. Trickett could not own an unencumbered one-half interest in the property which she claimed and Rankin own the other half, as she admits, and at the same time Rankin have a lien upon the entire property, as he alleges. To determine whether Rankin had such a lien it was necessary to determine whether there had been a dissolution of the partnership before the commencement of the suit and an accounting and settlement by the firm members of their partnership affairs. The issues were fully made, and the evidence thereon was before the court, and by its order it refused to determine what that evidence proved. This was error. Defendant Rankin had pleaded facts which entitled him “to relief concerning the subject-matter of the action” (Gen. Stat. 1901, § 4528), and if the evidence supported his claim he was entitled to the-relief; otherwise he was not. Section 4846 of the General Statutes of 1901 provides four specific causes for which the court may dismiss an action without the request of the plaintiff, and then provides that in all other cases the trial of the action and the decision must be upon the merits. The next section of the statute insures to the defendant the right to have his set-off or counter-claim tried upon its merits, although the plaintiff may have dismissed his action or failed to appear.

Considerable discussion is found in the briefs as to whether, under the bill of sale from Joseph P. Trickett to Rankin and the written contract of copartnership *310 between them, the abstract outfit became partnership property or each partner severally owned an undivided one-half interest therein. If any doubt existed as to the intention of the partners, after reading the letter from Joseph P. Trickett to Eankin, which formed a part of the negotiations and which was improperly excluded from the evidence, together with the contract to sell, the bill of sale and the partnership contract, it is removed by the evidence of Joseph P. Trickett, as well as by the evidence of Eankin. They each testified that the abstract books lacked about ten years of being written up to date; that both partners were to assist in bringing them up to date; and that when this should be done the books would be greatly increased in value.. We find no difficulty in saying that it was partnership property.

The chattel mortgage to Bryan & Son covered the entire outfit, and other property, and was executed prior to the formation of the partnership and the purchase by Eankin, but Eankin had 'no actual knowledge or notice of the mortgage at the time of his purchase, and it was not recorded until a long time thereafter. The lien of Bryan & Son was therefore subject to Ban-kin’s rights in the property.

The judgment is reversed and the case is remanded for further proceedings in accordance with the views herein expressed.