A. P. Hyde and H. Cornwall, for the appellant.

C. E. Perkins and A. Perkins, for the appellee.

ANDREWS, C. J. The cause of action set forth in this complaint is based upon the breach of an alleged contract between the parties, both of whom resided in this state, to sell certain patents owned by the defendant, for the purpose of paying the plaintiff the advancements which he claims to have made to the defendant in respect to the patents.

The defendant demurred to the complaint and assigned various reasons of demurrer. Most of these point out grounds on which it was claimed that the complaint was multifarious.

The demurrer was overruled. Before the hearing, the plaintiff, by amendments to the complaint, and by changing the prayers for relief, removed the causes for which these reasons of demurrer were assigned. If it be true that the complaint was multifarious at first, and there was error in overruling the demurrer, still, we think, by reason of the amendments, such error did not injuriously affect the defendant, and that under section 1135 of the General Statutes it cannot be considered on appeal.

Another reason of demurrer was, that the superior court, as a state court, had no power to order the sale of the defendant's interest in the patents on the ground that a sale would better promote the interests of the plaintiff and the defendant. Section 1307 of the General Statutes is, that "courts of equitable jurisdiction may, upon the complaint of any person interested, order the sale of any estate, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners; and of any real estate in which, or any portion of which, two or more persons may have different and distinct interests, when, in the opinion of the court, such real estate cannot be conveniently used and occupied by the parties in interest together, and a sale will better promote the interests of the owners." The argument of the defendant is, that this statute applies only to tangible property which is within the jurisdiction of the courts of this state; and that a patent is not property within the jurisdiction of any state court.

The jurisdiction of a court of equity is ordinarily in per sonam, and not in rem. A state court having jurisdiction of all the persons interested in a patent might, perhaps, compel the sale of the patent, in a proper case, for the purpose of con

verting a joint ownership into several ownerships, as well as to compel the sale for any other purpose. The language of the statute is broad enough to confer such power. But we do not decide this. We purposely leave it undecided.

The real ground on which the demurrer should have been placed was, that the case made in the complaint was not one which authorized the court to order a sale under that statute. The object of the statute is to enable any joint owner, or owner in common with another, of real or personal property, to put an end to such joint ownership. "No person can be compelled to remain the owner with another of any real estate, not even if it became such by his own acts. Every owner is entitled to the fullest enjoyment of his property, and that can come only through an ownership free from dictation by others as to the manner in which it shall be exercised. Therefore the law affords to every owner with another relief by way of partition, and this regardless alike of the difficulties attending separation and the consequences to his associate. Rights to the use of running water and rights to dig ores have been declared to be subject to this law. But inasmuch as it might sometimes happen that by a partition the property would be practically sacrificed, the statute has opened the way of escape from such a result. It permits a court of equity to order the sale when, in its opinion, a sale will bettter promote the interests of the owners": Johnson v. Olmsted, 49 Conn. 517. This decision had reference to real estate, but the statute confers equal power on the court to order a sale in cases of the joint ownership of personal property. A series of decisions has shown that this statute applies only in cases of ownership. It does not mean that any person interested in any way in real or personal estate may bring a complaint and that the court must order a sale. But only those interested therein as owners are so entitled: Spencer v. Waterman, 36 Conn. 342; Wilson v. Peck, 39 Conn. 54; Potter v. Munson, 40 Conn. 473; Ford v. Kirk, 41 Conn. 9; Johnson v. Olmsted, 49 Conn. 509.

This statute does not confer any power on the court to order a sale of property for the purpose of paying debts. The plaintiff was not the owner of the patents in this case. He did not claim to be the owner; on the contrary, he asserted that the defendant was the sole owner. He did not seek to be made the owner of them, but only asked that they be sold, in order to pay him a debt. We think, therefore, this averment of the complaint should have been stricken out, either upon the de

murrer or upon a motion to expunge. If, however, the other averments in the complaint require, or fully support, the judg ment that was in fact made, then this averment may be treated as surplusage, and has done the defendant no harm: Sanford v. Thorp, 45 Conn. 241.

Later in the progress of the case, the defendant filed an answer, and there was a hearing. The court found the issues for the plaintiff, and that there was an agreement between the parties that all the patents should be sold, and from the avails of such sales the advances made by the plaintiff, with interest thereon, should be first paid, and the remainder of such avails after such payments should be equally divided between them. The court also found the amount of the advancements made by the plaintiff, that the defendant refused to proceed further under the agreement, or in selling or attempting to sell the patents, and that the plaintiff and defendant were unable to come to any agreement respecting their interest in the property, and thereupon appointed a receiver, ordered the defendant to convey the several patents to the receiver, and directed the receiver to sell the same, and to apply the avails as set forth in the judgment.

The defendant insists that the judgment goes beyond the allegations of the complaint. He does not deny that the judgment, so far as it directs a sale of the patents for the purpose of repaying to the plaintiff the advancements he has made, is warranted by the averments of the complaint. But, he says, the court has gone further, and has found that the whole of the patents were to be sold, not merely enough to repay the plaintiff, but the whole of the patents, and the proceeds divided; and in this respect, he says, the finding is not authorized by the allegations of the complaint, and is a finding of matter not in issue.

This objection must be answered by a reference to the complaint. The first and the third paragraphs contain the averments necessary to be considered. The first is important in this respect only because it is by reference made a part of the third. The first paragraph alleges that the plaintiff was the owner of certain pistols and parts of pistols; that the defendant was a mechanic and inventor of skill and experience, and that they agreed that the defendant should devise some plan to convert such pistols and parts of pistols into sporting-rifles, and that the plaintiff should advance all sums of money necessary for expenses and materials and for the hiring of

other workmen. "And it was further agreed that all such sums so advanced by said Vail, with interest thereon, should be first repaid to him from the sales of such rifles and pistols, and that the remainder of such rifles and pistols, after such reimbursement, should belong equally to said Hammond and said Vail, and the net returns arising from the sales thereof should be divided equally between them." This was an agreement concerning property which was valuable, not to hold, but only to sell, and the agreement was made for the purpose of putting the property into a condition more convenient for sale, and so it became plain that the agreement alleged is one for the sale of the property, and not for a holding of it in joint ownership.

The third paragraph alleges that "it was agreed by and between said Vail and said Hammond that said Vail should engage in obtaining the pending and other patents for such improvements then made or to be made relating to said system, on the same terms as said agreement (the one mentioned in the first paragraph) had been entered into; that is to say, that said Vail should advance all needed moneys for perfecting said improved system and method of making axes, and procuring letters patent therefor, and making the same available for use or sale, and that all such advancements should be first repaid to said Vail from the use or sale of said patented inventions or improvements and letters patent, and thereafter all such inventions or improvements so made by said Hammand, and the letters patent obtained therefor, and the tools, machinery, and other property proper for the carrying out of said agreement, should be and become the joint property of said Vail and said Hammond equally, and all moneys and property arising from the sale or use of the same should be equally divided between them." It is impossible to read this paragraph without perceiving that the pleader had in mind, and intended to state, a contract between the parties that included as one of its terms the sale of the entire patents, and the division of so much of the avails as exceeded the amount of the advancements that had been made by the plaintiff. The answer denied any agreement whatever to sell the patents, either in part or in whole. It averred that the defendant was to convey a one-half interest in the patents to Vail in payment for the advancements he had made, and that they were to own and hold them together. If the defendant had then had any doubts as to the claim the plaintiff intended to make in re

gard to a sale of the patents, he might have asked and obtained an order for a more specific statement. He did not do so. He makes no claim that the finding of the court was not based upon sufficient and competent evidence. According to his claim now, this evidence would not have been admissible. But he did not object to it. It seems to us that the finding and the judgment of the court in respect to the sale of the patents was fairly within the issue, and we are unable to see that the defendant was in any wise misled.

In this view of the complaint (and laying out of it, as already indicated, the averment that a sale would better promote the interests of the parties), it is a creditor's bill seeking to apply these patents in payment of the defendant's debt to the plaintiff. It alleges the agreement between the parties pursuant to which the indebtedness arose, states the debt, and the fact that these patents were agreed to be sold for its payment, the refusal of the defendant so to do, and that the defendant is without other property or estate from which the debt can be secured, and prays for a sale of the patents, through an officer of the court, to the end that the indebtedness may be paid.

A creditor's bill strictly exists only in those jurisdictions where law and equity are administered by separate tribunals. A creditor first obtains a judgment in a court of law, and then seeks the aid of a court of equity to apply in payment of the judgment some property which could not be attached or taken on execution in the action at law. But in this state, where the same court administers both law and equity, and where legal and equitable remedies can be granted in the same action, a creditor can in the same complaint have judgment for his debt, and also the necessary equitable aid to obtain payment out of any property of the debtor which the law court could not reach. The allegations of the complaint as summarized above are sufficient, in substance and in form, to sustain such a decree. No want of power in the court is suggested, and there was full jurisdiction over the parties.

It is settled by abundant authority that the right acquired by the patentee by the issue of a valid patent is property which is subject to the claims of a creditor, and may be reached by a proper proceeding in equity and applied to the payment of his debts: Gillett v. Bate, 86 N. Y. 87; Wilson v. Martin-Wilson etc. Fire Alarm Co., 149 Mass. 24; 151 Mass. 515; Barnes v. Morgan, 3 Hun, 703; Pacific Bank v. Robinson,