delivered the opinion of the Court:
Howell Strong and Bobert M. Boe brought their bill of complaint in the Superior Court of Cook county, against Monroe N. Lord and others, to rescind a certain contract of purchase of real estate in Cook county, made by Strong. The land in question was, on October 1, 1872, conveyed to Strong by the deed of Silas C. Stevens, with whom defendants Lord and Bolton, and one Flack, were joint equitable owners, for the consideration of $2750, and the bill alleges that complainant Bobert M. Boe, and one Charles Boe, were jointly interested with Strong as partners in the purchase. The transaction is sought to be avoided on the ground that complainants were induced to purchase through fraud, practiced by defendant Lord. Answers and replications were filed, and the cause heard upon the testimony offered by the complainants. When the complainants had rested their case, counsel for defendant Lord moved the court to dismiss the bill upon the evidence presented by complainants, because they could not place the defendants in statu quo, and so were not entitled to have the contract rescinded, and, after argument, a decree was entered dismissing the bill. The decree was affirmed by the Appellate Court for the First District, and writ of error sued out from this court.
The evidence adduced by complainants before the Superior Court tends to show that Lord was part owner with Bolton, Stevens and Flack, of the land sold and conveyed by Stevens to Strong; that Strong was ignorant of, and Lord did not disclose, this fact to Strong, and offered his services to negotiate the purchase from Stevens, which were accepted by Strong, and Lord did negotiate the purchase for Strong from Stevens. These circumstances, uneontradicted, were sufficient to constitute constructive fraud on the part of Lord, and would entitle Strong to rescind the purchase from Stevens, if Strong were in the situation to reconvey to Stevens the *30title which he received from the latter. There can be no dispute as to the general rule that the party who would rescind a contract on the ground of fraud must restore the other party to the condition in which he stood before the contract was made. We shall, then, confine ourselves, in the present case, to the inquiry whether the plaintiffs in error are able to place the defendants in statu quo.
The proof discloses that Strong, after his purchase from Stevens, and in December, 1872, entered into a written contract with Bobert M. Boe and Charles Boe for the sale and conveyance to them, each, of an undivided one-fourth of the land in question, upon their making payment of the purchase money named; that the said Boes afterward made payment in full of the purchase money, and that in 1876 said Charles Boe died intestate, leaving him surviving Mary Boe, his widow, and Alice, Alma and Elsie Boe, his children and heirs at law. The latter child, Elsie, is an infant. Charles Boe, then, having made full payment for, and being entitled to, a deed from Strong, under the written contract of the latter, of one-fourth of the land, became the owner in equity of such one-fourth, and he dying intestate, the equitable title to one-fourth of the land descended to his heirs. (Smith v. Smith, 55 Ill. 205.) Elsie Boe, one of those heirs, is an infant, and can not therefore make a valid conveyance of his interest. It is apparent, therefore, that plaintiffs are not in the condition that they are able to restore to Stevens, or the parties interested with him in the land, the title to the premises as Strong received it.
It is contended by plaintiffs’ counsel that the contract of sale and conveyance between Strong and the two Boes constituted a partnership between them; that the land to be conveyed,by Strong to the Boes was partnership property, and that on the death of Charles Boe the title vested in plaintiffs as his survivors, and they offer to execute any conveyance of the land the court may direct. The theory *31of a partnership is based upon the following clauses in the contract:
“It is agreed, in case of a sale of any of the lands, the second party shall receive one-fourth of the proceeds. In case the lands do not sell for as much, including taxes, costs, etc., as the first party originally paid said Stévens, then the second party shall bear one-fourth of the loss,—the intent of this instrument being to create a co-partnership in the sale of said lands, the party of the first part to have a three-fourths and the party of the second part a one-fourth interest in the profits, and to share in the same proportion the losses,—in case of a sale, the second party to release his interest in the part sold. ”
The contract is between Strong, of the first part, and Bobert M. Boe in one and Charles Boe in the other contract, of the second part,—there being a separate contract of the same tenor with each of the Boes. The language of the preceding part of the contract is, “the first party, for $687.50, to be paid as hereinafter set forth, agrees to sell the second party an undivided one-fourth” of the land in question. Then follow the terms of payment, and afterward this: “The first party agrees, if above conditions are fulfilled, to deed the second party an undivided one-fourth of the land. ” Bobert and Charles Boe both having made all the required payments under the contract, they were by its terms each entitled to a deed of an undivided fourth of the land, and it might well be disputed whether there was the existence of any partnership after the making of such payment. But conceding the existence of a partnership, as claimed, we can not recognize the right in the survivors, Strong and Bobert M. Boe, after the death of Charles Boe, to sell the interest which the. latter had in the land at the time of his death. Mr. Washburn, in his work on Beal Property, (vol. 1, p. 422,) speaking of estates in partnership in real property, says: “In this country,—and it seems generally in England,—the doctrine *32of survivorship is limited by the extent to which equity stamps the character of personalty upon such estates, and that is, so far as, and no further than, they are required to pay partnership debts. ” And further, on page 423: “And, as would naturally be inferred from the premises above stated, whatever remains of such partnership real estate after the debts of the company shall have been discharged, is held in common, at once subject to dower or curtesy, and goes to the heirs ór devisees accordingly.” All the payments on Strong’s purchase of the real estate in question had been made, and Strong had received from the Roes all payments due him under the contracts with them. There were no debts owing in respect to this matter¡ The supposed partnership was fully wound up, and there was nothing left for the survivors to do, and consequently the equitable title of Charles Roe in the land descended to his heirs.
It is suggested that although there may be inability in the parties to make conveyance of the infant’s interest, it may be conveyed for and on behalf of the infant, under decree of the court to that effect. We know of no warrant of authority for the exercise of such a power on the part of a court,—at 'least where there was no application on behalf of the infant.
We see nothing in the circumstances of the ease which should take it out of the general rule of the necessity, in order to rescind a contract for fraud, of restoring the other party to the condition in which he stood before the contract was made, and that being impossible here, the judgment of the Appellate Court must be affirmed.
Judgment affirmed.