The general law of partnership, governing trade property held by the firm, does not apply to real estate owned by copartners, for as to such property the members of the firm are tenants in common, even though the land is used for the purpose of their business.1 As in the case of tenants in common, each partner must demise according to his estate, and there may be separate covenants for the payment of the rent or royalty to each of the lessors, or they may make a joint demise, with but one render of the entire royalty to all, in which case they may all join in an action for the rent, or sue separately at their option. But there may be a partnership in the use of land for mining purposes the same as in ordinary commercial transactions. and although in buying and selling the land each associate is held to contract for himself,3 where the property is purchased for the use of the firm and is used for partnership purposes, the real estate would be considered as property of the partnership.4 One tenant in common may contract with his associates and can lease them his part of the estate, and after the execution of the lease the lessees are entitled

1 Roheburg v. Reed, 57 Mo. 392; Eaton's App., 66 Pa. St. 483; Coles v. Coles, 15 Johns. 159; Palmer v. Sawyer, 114 Mass. 19; Mitchell v. Read, 61 Barb. 310.

2 Taylor's Land & Ten., §§ 115-116. If the royalty is reserved separately to each, however, they must each bring a separate action. Ante, idem. See also Powis v. Smith, 5 B. & A. 850. See Dresser v. Dresser (40 Barb. 300), for lease of one cotenant to his partner of his interest in the common estate. A tenant of one co-owner may sue in trespass for ore removed by him and converted by another co-owner. Blewett v. Coleman, 40 Pa St. 45; McCord v. Oakland I. M. Co., 64 Cal. 134; 49 Amer. Rep. 686; 11 M. M. R. 160.

3 Ante, idem; Cunningham v. Pattee, 99 Mass. 248; see also Dillon v. Brown, 11 Gray, 179.

4 Buchon v. Summer, 2 Barb. 199; Dyer v. Clark, 5 Metc. 562; Howard v. Priest, 5 Metc. 582; s. c. B. & W. L. C. 561.

to all the profits from the land; 1 and in like manner one partner can convey his interest to the remaining members of the firm; 2 but one partner cannot demise the real estate of the firm, and even if the instrument were executed in the firm's name, it would only convey that partner's interest.3 This was the established rule at common law, but it has now been changed by the law merchant, and the deed of one partner will bind the other member of the firm, if such partner has either an express or implied authority to execute

1 Dresser v. Dresser, supra; Reed v. Spicer, 4 M. M. R. 330; Nat. Bank v. Bissell, 11 M. M. R. 546.

2 Ante, idem; Wilde v. Milne, 26 Beav. 504. See in case of partner's death, Clements v. Hall, 24 Beav. 333.

3 Dillon v. Brown, 11 Gray, 179. See for case of one partner handling partnership property, Levi v. Karwick, 13 Iowa, 344; B. & W. L. C. 565. "Where one of the owners of land in common executes a lease of the mineral rights in the entire tract, the conveyance is not void, but passes the interest of the grantor." Harlan et al. v. Central Phosphate Co. et al.; Court of Chancery Appeals of Tennessee, 62 S. W. Rep. 614. In this case the court considered the authorities, at length, on the right of cotenant to execute a lease of the whole tract, and concludes: "Such conveyances or transfers can in no wise interfere with the rights of the parties not participating. The effect of the transaction simply is that the selling tenant divides up his interest into several parcels, but in the subsequent division the nonselling tenant is entitled to his half, if he is a half owner, just as though there had been no such subdivision made by his cotenant." And the following cases, cited, seem to support the holding of the court: Lee Chuck v. Quan Wo Chong, 91 Cal. 593; 28 Pac. 45; Barnum v. Landon, 25 Conn. 137; Harms v. McCormick, 132 Ill. 104; 22 N. E. 511. On the general question, see, also, Paul v. Cragnas (Nev.), 59 Pac. 857; 47 L. R. A. 540; and Mott v. Underwood (N. Y. App.), 42 N. E. 1048; 32 L. R. A. 270-272. But, upon the contrary, many reputable authorities hold that a conveyance by a cotenant of an aliquot part of the estate is void. Adams v. Briggs Iron Co., 7 Cush. (Mass.)361; 13 M. M. R 225; Bartlett v. Harlow, 12 Mass. 348; Varnum v. Abbott, 12 Idem. 474; Blossom v. Brightman, 21 Pick. 383; Benedict v. Torrent (Mich.), 47 N. W. 129; Tainter v. Cole, 120 Mass. 162; Holcomb v. Coryell, 11 N. J. Eq. 548; Smith v. Benson (Vt.), 31 Am. Dec. 614.

4 Dillon v. Brown, supra; Taylor's Land. and Ten., § 117; Harrison v. Jackson, 7 T. R. 207.

such deed, and it has been held that this authority could be implied from the character of the business and the gencral scope of each partner's authority."

§ 115. Same Corporation as party. A mining corporation, through its directors, may lease and otherwise dispose of its real estate in like manner as an ordinary partnership or a natural person.3 A majority of the directors are competent to bind the whole.4 At common law corporations could only act by their corporate seal, and hence could not be bound by parol contracts of their agents.5 This doctrine has long since been exploded, however, and corporations, like other principals, are bound by the acts of their authorized agents, whether they contract with or without the corporate seal.6 They are placed upon the same footing in regard to their manner of contracting as natural persons and may likewise be bound by the parol leases of their agents.7

1 Eaton's App., 66 Pa. St. 483; Skinner v. Dayton, 19 Johns. 513; Hart v. Withers, 1 Penn. 285.

2 Butler v. Stocking, 8 N. Y. 408; Taylor's Land and Ten., § 117 and note to page 127. A life-tenant cannot lease land for mineral purposes. Gerkins v. Ky. Co., 100 Ky. 734; 39 S. W. Rep. 444. An oil and gas lease joined in by life tenant and remainderman, grants right to lessee to mine oil. Blakely. Marshall, 174 Pa. St. 425; Wilson v. Youst, 28 S. E. Rep.. 781.

3 Wood Hydraulic H. M. Co. v. King, 45 Ga. 34; Penn. R. R. v. Sly, 65 Pa. St. 85, 205; Ardesco Oil Co. v. N. A. Oil Co., 8 M. M. R. 599. 4 Angell & Ames on Cor., § 291.

5 Taylor's Land. & Ten., § 127; Ang. & A. on Cor., supra.

6 Taylor's Land. & Ten., supra; Durham v. Carbon Co., 15 M. M. R. 380; So. Ireland Co. v. Waddle, 3 M. M. R. 533.

"Under Code

Ante, idem. U. S. Bank v. Danbridge, 12 Wheat. 105. 1858, § 1474, giving to all private corporations the power to hold and purchase and dispose of real and personal property to the extent prescribed by law, and, if not limited by law, to such an amount as the business of the corporation requires, the objection that a lease by a corporation was in excess of its corporate privileges could not be raised by the lessee, but only by the State. Acts 1887, c. 198, entitled 'An act to empower corporations to lease and dispose of their property and fran

But though they can execute parol leases without the use of the seal, in all cases where the seal of an individual would be necessary, the seal of the corporation must also be attached, and in order to authenticate the instrument the corporate seal must be proved in the same manner as the seal of an individual, by one who knows it to be the corporation's seal.1 The seal must also have been affixed by an officer of the corporation who was authorized to execute the instrument,2 in order to make it an act of the corporation; but when a seal has once been affixed to a written instrument the presumption is that it was affixed by an officer of the corporation having the requisite authority to execute the instrument, and the one denying the execution of the same must overcome this presumption by showing that there was a want of authority in the person affixing the seal.3

§ 116. Continued

When executed by agent.

one can do himself he can also do through the

What

agency

of

chises,' and by its terms applying to 'all corporations now or hereafter existing under the laws of the State,' and requiring leases to be made only by vote of the majority of stock at a meeting, of which 60 days' notice had been published, and exacting the same formalities on the part of the lessee if it was a corporation, even if applicable to private corporations, applied only to leases of property essential to corporate integrity or existence, and to the exercise of the functions for which the corporation was chartered; and a failure to comply therewith did not render void a lease of 2,800 acres of land by a coal company owning 75,000 acres, only 16,000 of which were covered by other leases." "Private corporations possess the power, under the common law, to lease and sell property by a majority of its stockholders." Coal Creek Min. & Mfg. Co. v. Tennessee Coal, Iron & R. Co. (Supreme Court of Tennessee, March 26, 1903), 62 S. W. Rep. 162.

1 Derby Canal Co. v. Wilmot, 9 East, 360. But a seal is not required in the case of trading corporations, contracting for the purposes for which they are formed. South of Ireland C. Co. v. Waddle, L. R. 4 C. P., affirming s. c. 3 Id. 463.

2 Jackson v. Campbell, 5 Wend. 572; Derby Canal Co. v. Wilmot, supra.

3 Clarke v. Improvement Gas Co., 4 B. & Ad. 315.

others. If one has such an estate in land as will enable him to execute a lease of the same, he can delegate that authority to an agent and the lease would be equally binding as though executed by the principal himself. But in all cases where one is charged upon a written instrument not executed by himself, the law will strictly regard the execution of the instrument,2 and before a lease executed by an agent will be valid, he must either have the authority necessary to enable him to perform such an act, or it must be subsequently ratified by his principal.3 He must execute the lease in the name of his principal, in order to charge the principal, and if the lease is executed in the name of the agent alone, he alone will be liable on the covenants. All that is necessary, however, is that he should have the lawful authority to execute the lease, and it is not necessary that this authority should be given in writing, for his appointment may either be directly proved by a verbal or written authority, or it may be indirectly established by showing the nature of the employment and the relative situation of the parties, as well as by a subsequent ratification by the principal.5 But a parol authority would not be sufficient to enable an agent to execute an instrument under seal for his principal, for in such cases the authority must be of as high a character as the instru

1 See generally for agent's authority to execute lease, Taylor's Land. & Ten., §§ 137-142.

2 Ante, idem; Long v. Colburn, 11 Mass. 97; Townsend v. Hubbard, 4 Hill, 357.

3 See, as to authority, Shep. Touch. 270; cited in Taylor's Land. & Ten., § 137. Knowledge by the principal is generally a sufficient ratification to bind him. Kingman v. Pierce, 17 Mass. 247.

4 And if executed in agent's name, the mere addition of the word "agent" or "atty." is descriptio personam. Seyfert v. Bean, 83 Pa. St. 450.

5 McLain v. Doe, 5 Ind. 237; Kingman v. Pearce, supra; Wilks v. Back, 2 East, 142; Brehn v. Jersey City F. Co., 38 N. J. 74.