Under tbe statute, a notice of Us pendens can be filed against real property only in an action affecting its title. G.S. 1-116. Tbe appeal, therefore, presents this primary question: Does tbe complaint state a cause of action affecting tbe title to tbe land beld by tbe defendants as tenants by tbe entirety?
*252In passing on this inquiry, we accept as true the factual averments of tbe complaint. We are not bound, however, by the legal conclusions of the pleader.
When one partner wrongfully takes partnership funds and uses them to buy or improve property, his co-partners may obtain redress in one of these alternative ways:
1. They may compel him to account to the partnership for the funds, and enforce the resulting claim as an equitable lien on the property. Hanna v. McLaughlin, 158 Ind. 292, 63 N.E. 475; Holmes v. Gilman, 138 N.Y. 369, 34 N.E. 205, 34 Am. S. R. 463, 20 L.R.A. 566, 30 Abb. N. Cas. 213; Brown v. Orr, 110 Va. 1, 65 S.E. 499, 135 Am. S. R. 912.
2. They may charge the property with a constructive trust in favor of the partnership to the extent of the partnership funds used in its purchase or improvement. G.S. 59-51; The American Law Institute: Restatement of the Law of Restitution, section 202. See, also, in this connection: Crone v. Crone, 180 Ill. 599, 54 N.E. 605, and 68 C.J.S., Partnership, section 88.
The plaintiff invokes these principles in the case at bar. He concludes as a matter of law that the contract of 1 May, 1947, creates a partnership between him and the male defendant in the business designated as Capitol Motors. Starting with this legal conclusion as a premise, he advances these interdependent arguments to sustain the notice of lis pendens: That the male defendant wrongfully took funds of the partnership existing between him and the plaintiff under the firm name of Capitol Motors, and used them to improve the land and to pay off installments of its purchase price; that by reason thereof the plaintiff is entitled to a decree under the principles invoked by him charging the land with a constructive trust in favor of the partnership to the extent of the funds of the partnership thus misappropriated and used by the male defendant; and that in consequence the action affects the title to the land.
The plaintiff’s position is valid if, and only if, his premise is sound. The contract of 1 May, 1947, is in writing, and the question of whether or not the plaintiff and the male defendant are partners in the business known as Capitol Motors depends upon the legal effect of the written contract under the provisions of the Uniform Partnership Act, which was adopted in North Carolina in 1941.
The Uniform Partnership Act defines a partnership as “an association of two or more persons to carry on as co-owners a business for profit.” G.S. 59-36 (1). When the written agreement is tested by this definition, it is manifest that there is no partnership between the plaintiff and the male defendant in the business designated as Capitol Motors, for the very simple reason that the indispensable requisite of co-ownership of the business is lacking. City of Wheeling v. Chester, 134 F. 2d 759; Spier *253 v. Lang, 4 Cal. 2d 711, 53 P. 2d 138; Cook v. Lanten, 335 Ill. App. 92, 80 N.E. 2d 280; Smith v. Maine, 260 N.Y.S. 409, 145 Misc. 1; Provident Trust Co. of Philadelphia v. Rankin, 333 Pa. 412, 5 A. 2d 214. Under tbe contract, tbe male defendant is tbe sole owner and operator of Capitol Motors. Tbe plaintiff merely made repayable “advances and loans” of money to defendant for use in tbe business. Bankers Mortgage Co. v. Commissioner of Internal Revenue, 142 F. 2d 130; B. J. Carney & Co. v. Murphy, 68 Idaho 376, 195 P. 2d 339. Indeed, all of tbe indicia of .a partnership are wanting in tbe contract except that of sharing profits. It is plain, however, that tbe plaintiff is entitled to receive a share of "the profits simply as compensation or interest for tbe use of bis money by tbe male defendant. In re Mission Farms Dairy, 56 F. 2d 346; Black v. Brandage, 125 Cal. App. 641, 13 P. 2d 999. Consequently, the stipulation as to tbe sharing of profits falls within tbe following provision of tbe Uniform Partnership Act: “In determining whether a partnership exists, these rules shall apply: . . . (4) Tbe receipt by a person of a share of tbe profits of a business is prima facie evidence that be is a partner in tbe business, but no such inference shall be drawn if such profits were received in payment: ... (d) As interest on a loan, though tbe amount of tbe payment vary with tbe profits of tbe business. . . .” O.S. 59-37.
When all is said, tbe relation between tbe plaintiff and tbe male ■defendant under tbe contract is simply that of creditor and debtor. For this reason, tbe plaintiff is not entitled to charge tbe land held by tbe defendants as tenants by tbe entirety with a constructive trust, and this action does not affect tbe title to such land.
This brings us to this secondary and final question: May an unauthorized notice of lis pendens against land held by a husband and wife as tenants by tbe entirety be canceled on motion of tbe wife alone ?
A motion for tbe cancellation of an unauthorized notice of Us pendens must be made by some person aggrieved by tbe continuance of tbe notice on tbe records. Painter v. Gunderson, 123 Minn. 342, 143 N.W. 911. Manifestly tbe owner of tbe property involved is such a person. Faber v. Hanbury, 144 N.Y.S. 381, 159 App. Div. 59. Inasmuch as each tenant by tbe entirety is deemed seized of tbe whole estate ( Winchester-Simmons Co. v. Cutler, 199 N.C. 709, 155 S.E. 611), either of them may move to ■cancel an unauthorized notice of Us pendens against tbe property held by tbe entirety. This conclusion finds substantial support in a well reasoned ■decision of tbe Appellate Court of Indiana, bolding that one tenant by tbe entirety may apply for tbe judicial protection of bis rights in tbe property. Humberd v. Callings, 20 Ind. App. 93, 50 N.E. 314.
Tbe order canceling tbe notice of Us pendens is
Affirmed.
*254Valentine, J., took no part in tbe consideration or decision of tbis case.