majority">Richardson, Judge,

delivered the opinion of the court.

Henry Chouteau, in October, 1853, by an indenture of lease demised to the four defendants and Eugene Fribourg, a lot of land in the city of St. Louis for the term of fifteen years from the first of January, 1851. The instrument is signed and sealed by all the parties to it, and on its face is made to the lessees in their individual names, and not as partners. By virtue of judgments recovered against Fri-bourg, all his interest in the premises was sold by the sheriff and purchased by S. A. Bennett,- who conveyed to the plaintiff. The plaintiff then filed his petition for partition, in which he claimed that he was a tenant in common with the defendants of the demised premises for the remainder of the unexpired term, and was entitled to one-fifth part thereof. There is not an affirmative allegation in the answer, and the defendants did not in their answer set up any special matter as a defence, but only denied in general terms that the plaintiff had any right or interest in the premises, or that Fribourg had any at the date of the judgment and sale under which the plaintiff claimed.

*474The plaintiff at the trial proved every averment in his petition and on the pleadings was entitled to judgment, for the evidence given by the defendants, by which they sought to show that the lot was leased, improved, used and held as partnership property for the manufacturing of soda, and that Fribourg in equity had no interest in it at the date of the judgment and sale, was inadmissible against the plaintiff’s objection, as no ground was laid in the answer for the introduction of such proof. (Winston v. Taylor, 28 Mo. 82.) As the lease was made to the defendants and Fribourg in their individual names, it must be regarded at law according to the legal title, and, prima facie, they held the estate conveyed by it as tenants in common. If, however, the lease was granted to the partners for partnership purposes and was treated and considered by them as a part of their partnership stock, it would be regarded for many purposes as personalty. But the doctrine that converts real estate into chattels is a creature of equity; (3 Kent, 68; Hoxie v. Carr, 1 Sum. 178 ;) and parties seeking to avail themselves of it are bound to set up the facts out of which the equity arises. (Magwire v. Vice, 20 Mo. 431.)

Although as between Fribourg and the defendants the leasehold might be considered a part of their partnership property, yet as there is nothing on the face of the lease to show that they held it in any other manner than as tenants in common, or to impress upon it any other character than such as the law imputes to it, the plaintiff will be entitled to Fribourg’s apparent interest at the time of the judgment, unless it is shown that he had notice of the defendant’s equity or circumstances from which notice might be fairly inferred. (Ford v. Herron, 4 Munf. 316 ; McDermott v. Lawrence, 7 Serg. & R. 438 ; Colly, on Part. § 135.)

Enough has been said to reverse the judgment, and it is therefore not necessary to consider whether the leasing of a small piece of land by five persons - and the erection of a manufactory upon it, or what state of facts, would be sufficient to put a purchaser on inquiry and charge him with *475constructive notice. The question may arise in another trial under a proper state of pleading, and it may be observed that many of the principles that belong to the whole subject will be found ably discussed by Mr. Justice Story in the case of Hoxie v. Carr, cited above.

The other judges concurring, the judgment will be reversed and the cause remanded.

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