The opinion of the Court was by

That partnership creditors have rights, if seasonably asserted and in a proper manner over the partnership funds, superior to the rights of the creditors of the individual partners, is well established. In order to bring this doctrine to bear upon the case under consideration, the counsel for the plaintiff insist that the property in controversy, while held by N. & L. Dana and company, was a part of their partnership funds.

They derived title from Andrew Fernald and Joel Hall, who conveyed to them by deed, on the second of February, 1822. The tenancy, by which they held, depends upon the terms of their deed and of the statute of 1821, c. 35, § 1.- It is therein provided, that lands conveyed to two or more persons, shall be held by them as tenants in common, and not as joint tenants, unless i't is set forth in the conveyance, that they are to hold jointly, or unless it contain other words, clearly and manifestly showing that intention. Their deed contains no terms, indicating such'intention, either expressly, or by any implication whatever. The language of the statute is tod plain and decisive, to render proof of such intention, aliunde, admissible. If the grantees were partners, or if the consideration was paid from partnership funds, these facts do not appear, in the deed.

But if we were at liberty to look elsewhere for these facts, and for the further fact that the purchase was made, and the *19property used, for partnership accommodation, it could not thereby, in contravention of the statute, become a joint estate. Such also is the common law doctrine. Collyer on partnership, 68. No decision at law, laying down a different principle, has been cited. In equity real estate conveyed to grantees, who are partners, or were when conveyed to one of them, if purchased with partnership funds, has been treated as joint property, and as such, subject to the claims of partnership creditors. Edgar v. Donnally & al. 2 Munf. 387, and Sigourney v. Munn & al. 7 Conn. R. 11, cited for the plaintiff, were cases in equity. Hosmcr C. J. who delivered the opinion of the court in the last case, admits, that whore partners purchase real estate, for the accommodation of their partnership business, courts of law, who look at the legal title only, will consider them merely as tenants in common. And in Coles v. Coles, 15 Johns. R. 161, the court say distinctly, that “ the principles and rules applicable to partnerships, and which govern and regulate the disposition of the partnership., property do not apply to real estate. ”

The case of Goodwin v. Richardson, 11 Mass. R. 469, is a strong and direct authority to the same point. That the property in controversy there, was purchased with partnership funds, and was taken in payment for a partnership debt, appeared on the face of the title. If from these facts, a plain and manifest Intention was deducible, that the estate was to be held jointly, it might have been so regarded, consistently with the statute. And yet they were regarded and held as tenants in common. If the doctrine, for which the plaintiff contends, is warranted by law it should have been applied in that case. A stronger one requiring its application, cannot well be imagined.

Whether a different rule should be adopted in equity in this state, the court is not at present called upon to determine. Whenever such a case arises in equity, it will be matter of grave consideration, what effect the express terms of our staute is to have upon the question.

The case before us is not even a conflict between separate and partnership creditors. Thomas Chadwick, under whom *20the plaintiff holds, was a purchaser, not a creditor. The subsequent application of the consideration paid, cannot affect his legal title. It is not easy to discern, upon any principle, why the subsequent deed of Levi Cutter, in connection with the Danas, passes his title in preference to his own prior deed. The levy of the Cumberland Bank has the same effect, as if they had taken a deed from Cutter, on the day of their attachment. And the court is of opinion that the legal title to the part in controversy is in them.

Judgment for defendant.