delivered the opinion of the Court.

The bill in this case was brought to establish a copartnership in certain lands, held by 1. H. Ancrum and T. P: Chiffelle, on which they erected a mill for the sawing of lumber. It was proved that the mill was always called “Ancrum & Chiffelle’s;” that bills of lumber were sawed and sold by them in the name of Ancrum &i Chiffelle; that they sued and were sued, and their accounts were kept in that name. The question made in the case is, whether the lands so used in the business of the mill, were copartnership property or not.

There can be no doubt that land may be the subject of a partnership concern. This has been repeatedly decided. In Lake, vs. Craddock, 3 P. W. 158, several persons purchased a *30tract of land, with intent to drain it, aud the purchase was made by them as joint tenants in fee; bufas they had contributed rateably to the purchase, they were held to be tenants in common, by reason of the partnership. The master of the rolls declared “that an undertaking upon the hazard of profit or loss, was in the nature of merchandizing.”'

So in the case of Foster, vs. Hale, 3 Ves. 696, and 5 Ves. 508, in which there was a lease to three persons of a colliery. The court held that as the partnership was established, the premises necessary for the purposes of that partnership were, by operation of law, held for those purposes. In Thornton, vs. Dixon, 3 Bro. c. r. 199, Lord Thurlow said, he had always understood where partners bought land for the purpose of a partnership concern, it was to be considered as part of the partnership fund, and he was at first disposed to think that this would make it distributable as personal estate; he determined however afterwards, that it should result to- the heir at law, as the agreement of the partners was not sufficiently expressed to change its legal nature. But whether land assumes the character of real or personal estate in becoming partnership property, is immaterial, as it affects the right of the joint creditors of a partnership; for if land under either character becomes partnership property, it must, upon principle, be necessarily liable to partnership debts. The rule on this subject has been fully settled. Where there are different classes of creditors, witli respect to the joint and separate estate of copartners, each estate shall be applied exclusively in the first instance to the payment of its own creditors, and neither the joint creditors shall come upon the separate estate, nor the separate upon the joint, but only upon the surplus of each that shall remain, after each has fully satisfied its own creditors.

It is only necessary then, in the present case, to enquire whether the lands used for the purposes of the mill became a partnership fund; and this fact appears to be fully established. It is admitted by the answer of Mr. Chiffelle, the surviving partner, and both the partners have declared it by a written instrument, executed after they had both become insolvent, which re*31moves all objection to it on the ground of interest. But this evidence would otherwise be properly admissible. In Foster, vs. Hale, before cited, it was iield that under a lease for a term of years to one partner in his own name, a trust would be raised by implication in favor of copartners,'from letters and a paper referred to by them, in the hand writing of the partner, though not signed or dated; and the partner in whose name the lease was taken, was decreed to hold the premises for himself and his co-partners in equal'shares. In that case too, great stress was laid on the circumstance that the land was necessary for carrying on the colliery,_ and the lease was held to be an incident to the partnership for that reason. So in the present case, the lands must be •regarded as partnership property, although not so declared in the conveyances. But the partners have declared that they were brought into the partnership fund for the erection and use of the mill, and it is evident that they were necessary for those purposes; the notes also which have been given to the complainant, Winslow, manifest very strongly the joint interest of the partners in the transaction. The creditors then of the partnership have a right to be paid out of this fund, in preference to the separate creditors of the partners; but they cannot exclude the prior liens of the separate creditors of the copartner, Ancrum, who bad obtained judgments against him before he conveyed his share of the land to the use of the partnership. It is just however that these creditors should first resort .to his seprate estate, before they are allowed to come on the partnership fund.

It is therefore ordered and adjudged, that the decree of the circuit court be reversed, and that the proceeds of the sale of the mill, establishment of Ancriim &. Chiffelle, be paid to the complainants in rateable proportions to their demands, as creditors of the partnership of A. & C. subject however as to the moiety of Ancrum, to the legal liens which his separate creditors may have obtained thereon, before his conveyance of the same to the use of the said partnership: provided that the said creditors shall have first exhausted the separaté estate of the 'said Ancrum, which may be liable to their demands.

dissenting. There is no doubt that Mr. Ancrum and Mr. Chiffelle made purchases of lumber, and that, after it was sawed, it was sold on their joint account. They sued and were sued as “ Ancrum & Chiffelle,” in 1819 and 1820, and as the mill was erected soon after the execution of the deed'in 1816, from Ancrum to Chiffelle, of half of a lot he (Ancrum) owned, it is probable that some understanding between them existed at that time respecting the business of sawing and selling lumber in which' they were to be concerned; and if the certificate signed by Ancrum 8c Chiffelle, dated on the 22d of April 1822, containing a declaration that they held as partners the land, as well that part of which was sold by Ancrum to Chiffelle in December, 1816, as the adjoining lot conveyed to them by Winslow and wife, in April 1817, be admitted as evidence, it is still more probable; for the land conveyed by Winslow and wife was occupied with the land in the deed of 1815, as part of the mill establishment, the two lots being under one fence and used for one purpose. But I do not consider this certificate as evidence, as it is brought to contradict the deeds; on the face of which the land conveyed appeared to be private and not partnership property, and to divest the private creditors of Mr. Ancrum and Mr. Chiffelle of their legal liens on their separate estates, acquired between December, 1816, the date of the first deed, and the date of the certificate.

There were unsatisfied judgments against Mr. Ancrum» prior to his deed of 1816, and another judgment was obtained against him, between the date of this deed and that of 1817, from Winslow and wife; and soon after the date of the latter deed, other judgments were entered up against him, to considerable amount. It is not shewn how the private affairs of Mr. Chiffelle stood at these respective periods; but it is admitted that Mr. Chiffelle is insolvent, and that the estate of Mr. An-crum is so also. .The contest in this case is entirely between the mill creditors of Ancrum & Chiffelle and their private creditors, and it is important to fix the time from which the partnership in the sawing business commenced. Ancrum’s deed to *33Chiffelle, in December, 181G, affords no evidence of the existence of a partnership between them of any kind at that time; the mill was erected afterwards, and Ancrum fa Chiffelle in 1819 and 1S20, sued and were sued as Ancrum fa Chiffelle. The public had no means of knowing at the date of the deed of December, 1816, that Mr. Ancrum and Mr. Chiffelle had entered into a partnership, and the deed itself, which is merely a conveyance of half of a lot of land by Ancrum to Chiffelle in fee simple, furnishes a contrary inference. In Foster & Hale, in 3 Ves. jun. which is much relied on, a lease obtained by one partner In his own name, of land necessary to carry on a colliery, was declared to go as an incident; but the partnership was first established, and there appeared reason to believe that the money for the land was paid from the partnership funds. The letters of Burdon, the partner vvho took the lease in his ■own name, were admitted as evidence, as they might be in a question entirely between copartners. Many undertakings are carried on by partners in which the use of land is necessary, and where a purchase of land is made by one partner and a title taken for it in his individual name, but it is paid for out of the partnership funds, a trust is raised by implication, in favor of the copartners. The half of the lot conveyed by Ancrum to Chiffslle in 1816, on which the mill is built, was nert bought with partnership funds; the other lot is not yet paid for, nor is there any thing to shew that it was to he paid for out of the partnership funds. Upon the face of the deeds, the land is the private property of Mr. Ancrum and Mr. Chiffelle, and it is too much to say that the mere use of it for the partnership in sawing, is sufficient to convert them into partnership property-against the private creditors of Ancrum fa Chiffelle; more especially as the land might well continue private property and the business of sawing go on notwithstanding. If it were intended that the lot which Mr. Ancrum owned, in December, 1816, and on which the mill w-as to he erected, should be partnership property, is it not reasonable to suppose that some de* claration in writing to that effect would have been made by í>im. instead of conveying, as he did then, the half of it to Mr». *34Chiffelle? I- doubt much whether they intended to hold these lands as partnership property; but whether they did or not, as the land on the face of the deeds is private property, I am of opinion it cannot be declared otherwise without infringing on the statute of frauds.