Ejectment will not lie to settle the rights between copartners to their personal property. It is, therefore, not necessary to consider whether the firm was composed of general or limited partners, nor whether it would lie to recover a gross sum agreed to be paid for real and personal estate so blended together as to give no indication of the sum to be paid for the land.

Company, to be held by them as partnership settled. The interest of the two Reeses does not property, according to their respective interest appear to have been divested. The land still in the firm, which was stated to be as follows: continues a portion of the assets. McMath one-fourth; the three Alberts jointly one-fourth; each Reese and each Hammond one-eighth. The deed was duly recorded within ten days thereafter. In July, 1872, the two Hammonds, who thus owned one-fourth of the firm property, conveyed an undivided fourth of the land to McMath, one of their copartners. In October, 1872, the latter agreed to sell a onefourth interest in all the property of the firm to Du Bree & Kessler, which was followed by deed for the land in question in June, 1876. Title thus acquired was what professed to be sold by the aforesaid agreement of 1st of June, 1874.

The law is well settled that when a firm holds land, by deed expressed on its face to be the partnership property of the firm, it is stamped, so far as the partners are concerned, with all the attributes of personalty. It continues to be personalty until the partnership is dissolved, the business of the firm settled and its debts paid. Until that time it is held like other assets of the firm, and the extent of each partner's interest therein is to be ascertained on a final settlement. In the meantime, even a judgment against one partner will not be a lien on his interest in the land: Lucas v. Laws, 3 Casey, 211; Erwin's Appeal, 3 Wright, 535; Meily v. Wood, 21 P. F. Smith, 448; Foster's Appeal, 24 Id., 391; West Hickory Mining Association v. Reed, 30 Id., 38; Foster v. Barnes, 31 Id., 377.

It follows the learned judge was clearly right in entering judgment in favor of the defendants non obstante veredicto.

Judgment afirmed.

For plaintiff in error, Messrs. Frank Fielding,
George A. Jenks and William D. Bigler.
Contra, Messrs. McEnally & McCurdy and
Wallace & Krebs.

BRADISH v. McCLELLAN.

A testator made a will dated November 20, 1871. On January 13, 1873, he executed another will, and on January, 1873, he executed a codicil to the last dated will, wherein he referred to each will distinctly, and declared that if he should die before a certain date the earlier will was to be taken as his last will and testament. He died before the date he had provided for, and upon the question whether the codicil attached to the later will became inoperative and fell with the will, or did it become a supplement to the prior will. Held, that as there was no intimation that the codicil should not take effect, the clear intent was that it should attach itself to whichever writing became operative, and that it should have full effect.

Bradish's Appeal, 24 P. F. Smith, 69, distinguished.

Error to the Court of Common Pleas of Cumberland county.

Opinion by MERCUR, J. Filed October 2, 1882.
This contention relates to the will of James

As MeMath, the three Alberts and the two Hammonds were all members of the firm to which the land was conveyed as personalty, the former purchased the interest of the two Hammonds, with both actual and record notice that it was so held. His memorandum of agreement was to sell to Du Bree and Kessler "one-fourth | Hamilton, who died January 23, 1873. On the interest in the Woodland Fire Brick Company's 20th of November, 1871, he executed a writing works, including real estate, personal property, purporting to be his last will and testament. book accounts, notes, cash and everything else On the 13th of January, 1873, he executed thereto belonging. The said Du Bree and Kess- another will of similar import, in which he ler to pay three-fourths of all the debts against made a charitable bequest differing from one in said firmi." Thus Du Bree and Kessler pur- the first will. On the day of January, 1873, chased an interest in the land as partnership he executed a third writing, purporting to be a property. The fact that a deed free from all "codicil to be my last will and testament." It incumbrance was to be made afterwards did not was not written on the same piece of paper on change its character. It still remained partner- which either of the former was written, nor was ship property. A change was made of some it attached thereto. It gave bequests and demembers of the firm; but the firm continued, vises to persons not named in either of the and this land remained a portion of its assets. former writings, and, inter alia, devised the When they made the agreement on which spe- land in question to the defendant. It proceeded cific performance is now sought, they unmis- to recite and declare, “whereas there is an Act takably treated it as the property of the firm, of Assembly rendering void all elemosynary and the Alberts agreed to buy it as such. The bequests and devises if not executed in a certain firm is not yet dissolved. Its business is not yet | number of days before the decease of the testa

tor, and whereas, I executed a will dated the 20th of November, 1871, now I, James Hamilton, the testator, declare said will of 20th of November, 1871, marked A, to be my last will and testament, should I die before the 1st of March, 1873, otherwise the will of the 13th of January, 1873, shall be and is hereby declared to be my last will."

After the death of the testator the three writings were connected together, and all of them admitted to probate. As he died before the first of March, the writing of 13th of January did not take effect as a will: Bradish's Appeal, 24 P. F. Smith, 69. The question now is, did the codicil become inoperative and fall with that writing, or did it become a supplement to the will of November 20, 1871. Although a subsequent will, without a revoking clause, will repeal a prior will, yet it does not preclude a testator by appropriate writing from reinstating the prior one. A codicil may revoke by implication the posterior of two wills, by expressly referring to and recognizing the prior one, as the actually subsisting will of the testator: 1 Jarman, 189. Here the codicil does not stop with an implica- | tion. With both wills in his mind he refers to each distinctly, and in unmistakable language the testator declares in a certain contingency the earlier one to be his last will and testament. That contingency occurred.

cient to defeat the title which we think the defendant so clearly took under the codicil to the | land in question.

The learned judge correctly held that the plaintiff could not recover.

Judgment affirmed. For plaintiff in error, Messrs. John Hays and Stuart & Stuart.

Contra, S. Hepburn, Jr., Esq.

UMBENHOWER v. MILLER.

A deed absolute on its face may be shown to be a mortgage by proof that the transaction was intended as a mortgage, and proof of a separate written defeasance, and parol evidence that the deed and defeasance were but one transaction. If the defeasance bears a later date than the deed, it is a question for the jury whether, under the parol evidence, the conveyance was a mortgage.

Error to the Court of Common Pleas of Berks county.

Opinion by MERCUR, J. Filed October 2, 1882.

It is well recognized law in Pennsylvania that a deed absolute on its face may be proved by parol to have been intended as a mortgage: | Paige v. Wheeler, 11 Norris, 282.

In this case both parties claimed title under one Hine. The defendant in error under deed from him, and the plaintiff in error by purchase at sheriff's sale as the property of Hine. The plaintiff in error claims, although the deed to the former was absolute on its face, yet, in fact, it was intended as a mortgage. He, therefore, offered in evidence a separate defeasance, to be followed by parol evidence that the deed and defeasance formed part and parcel of the same transaction, and, as the defeasance was not recorded, the whole constituted an unrecorded mortgage. The court rejected the evidence. This is assigned for error.

When the testator executed the codicil he was uncertain which of the former writings would take effect as his will. It depended on the contingency of his dying before the time specified. | There, however, was no contingency stated in regard to the codicil. There was no intimation | that it should not take effect in either case. The clear intent was that it should have full effect and attach itself to whichever writing became operative as a will. The codicil was to become a part of that writing, and the two constitute the whole will. Any presumption that the codi-date a few days after the date of the conveycil and the writing of the 13th of January were both executed at the same time is clearly rebutted by the reference in that codicil to the latter as a writing then existing.

It is true the written defeasance offered bears

ance. If they bore even date they constitute in law a mortgage; but where the defeasance is of later date, it is a question of fact for the jury to determine, under the parol evidence, whether the conveyance was a mortgage: Reitenbaugh v. Ludwick, 7 Casey, 131; Wilson et al. v. Shoenberger's Executors, 3 Id., 295. While a subsequent independent agreement to reconvey on

The conclusion to which we have come is not in conflict with the point decided in Bradish's Appeal, supra, properly understood. The main question there was, whether effect should be given to the writing of November, 1871, in re-repayment of the purchase money will not gard to charitable bequests therein. They were held to be valid. No person claiming under the codicil was a party to that issue. Hence the rights of the defendant were not there discussed nor decided. There is a dictum in the opinion as to the intent of the codicil, to which we cannot agree. We cannot therefore hold that suffi

change an absolute conveyance into a mortgage, yet the fact that the defeasance bears a later date does not preclude a party from showing, by parol, that it was executed in pursuance of an agreement under which the deed was made and delivered, thus forming a part of the same transaction. This was substantially the offer

here. The defeasance on its face gives some evidence of an intention to consider both instruments of the same date. The offer is by parol evidence to connect the two, and prove they constituted one transaction.

fide holder for value, and may maintain his possession against everybody until the contrary is successfully established by those who undertake to assail his possession.

It is claimed by plaintiff that in making the loan to Thorp in April, 1878, an essential provision of their agreement was that the latter should deposit in the First National Bank of Meadville $9,000, Shenango and Allegheny Railroad bonds, as collateral security for the loan, and furnish him with the bank's certificate of such deposit; that, a few days thereafter, he received from the cashier a certificate, setting forth, in substance, that Thorp had deposited in the bank bonds corresponding in kind and amount with their agreement, "to be held as

It is true, the offer is not to prove that the defeasance was executed at the time the deed was delivered; nor is it essentially necessary so to prove. Other evidence may sufficiently prove the necessary connection between the two written instruments. A defeasance may be wholly proved by parol. Here the offer was not only to give in evidence the written defeasance, but also to prove, by other evidence, the identity of the transaction. The learned judge erred in rejecting the evidence. Judgment reversed and venire facias de novo security for the payment of his note for $6,674.40, awarded.

For plaintiff in error, Messrs. Benj. F. Dettra

and Frank R. Schell.

Contra, Messrs. Henry C. G. Reber and Samuel L. Young.

GIBSON v. LENHART.

Where a bank issues its certificate of deposit to a certain individual, it becomes liable to the individual for the proper production and surrender to him at any time of the bonds or other matter specified in such certificate of deposit, when the rules of the bank in regard to the

production of the certificate are complied with.

dated April 25, 1878, due in one year from that date;" that, resting in the belief that Thorp had fully complied with the conditions on which he obtained the loan, he awaited the maturity of the note; and, immediately after the failure of Thorp, he called at the bank and was informed by its president that his bonds were there and his claim was secure; that afterwards, upon inquiring for the bonds, an envelope, indorsed "Dr. Gibson, $9,000, bonds, Shenango and Allegheny Railroad Co.," was handed him by an officer of the bank, who informed him that on surrendering the certificate of deposit he could lift the bond; but, having mislaid the certificate, Error to the Court of Common Pleas of Craw-the bonds were not taken out of bank. By an ford county. arrangement with its president, however, the Filed December past due coupons were collected by the bank, and the proceeds, $315, marked "The property of Dr. William Gibson," placed in the envelope with the bonds. After the failure of the bank the money thus identified as his was handed to plaintiff by the temporary receiver; but, in the absence of the still missing certificate, he declined to surrender the bonds, and they remained in the vaults of the bank until they were taken by the sheriff on the writ of replevin and delivered to plaintiff.

Opinion by STERRETT, J. 30, 1882.

It may be conceded that in 1877 the bonds in controversy were deposited in the First National Bank of Meadville, to secure the note of Thorp & Reynolds in favor of Berringer, and that the note was not fully paid nor the collaterals voluntarily surrendered to the pledgor; but it by no means follows that the same bonds may not have been subsequently pledged to the plaintiff as collateral security for the money loaned by him to Thorp in April, 1878. Being negotiable securities, every transfer of the bonds to a new holder, for value and without notice, would give the latter a good title to them as against the former holder. That such is the status of coupon bonds, similar to those in question, is too well settled by recent decisions to admit of any doubt: County of Beaver v. Armstrong, 8 Wright, 63, 69; Murray v. Lardner, 2 Wal., 110, and Com-dition on which he obtained the loan. missioners, etc., v. Bolles, 4 Otto, 109. Like a bank note, or promissory note indorsed in blank, they pass by delivery, and a good faith purchaser is unaffected by want of title in his vendor. The last taker is presumed to be a bona

|

If the case had been submitted to the jury on the testimony before them, they would have been warranted in finding the facts substantially as claimed by plaintiff, and that the bonds in controversy are those referred to in the certificate of the cashier and afterwards exhibited to the plaintiff in the bank, where they had been deposited by Thorp in compliance with the con

In view of the testimony and the conclusions which might have been fairly and legitimately drawn therefrom, the learned judge erred in refusing the plainliff's points, and in withdrawing from the consideration of the jury the sev

eral questions of fact therein presented, and also HELEN ALEXANDER v. WILLIAM HARRIS. in charging as complained of in the fourth to

finding that there was an implied reservation of a right of way.

seventh specifications inclusive. As already The evidence in this case not sufficient to warrant a suggested the questions of fact referred to were fairly raised by the evidence, and if they had been found, as they might and probably would have been, in favor of the plaintiff, he would have been entitled to a general verdict establishing his right to all the bonds.

Appeal from the decree of the Court of Common Pleas, No. 2, of Allegheny county.

Bill in equity by William Harris against Helen Alexander, to restrain defendant from interference with an alleged easement. The

contains the facts of the case), entered a decree in favor of plaintiff, which is assigned for error:

"The plaintiff claims the use of a five feet alley way in the rear of defendant's lot, which she has obstructed and prevents him from using. "William Black, in 1847, bought a lot of ground in Allegheny City, fronting on Frankin street about sixty-three feet, and running back along Evans alley about ninety-two feet. Within a few years thereafter he erected two dwelling houses at the corner, fronting on Franklin street, each sixteen feet front; also two on the rear part of the lot, fronting on Evans alley, each sixteen feet front. In the rear of the front buildings was an alley or passage-way opening out to Evans alley, which was used by all the occupants of lots abutting on the alley from the time the buildings were put up until very recently. At first it was ten feet wide, but before the death of William Black, and before the sale of the lots, it was reduced to five feet by moving back the fences in rear of the front buildings.

It cannot be pretended that the bonds were pledged to the plaintiff as security for an in-court below, in the following opinion (which dependent and antecedently contracted debt. The cotemporaneous agreement to deposit them as collateral security entered into and formed an essential feature or condition of the contract of lending. It was doubtless the leading consideration, so far, at least, as the plaintiff was concerned, without which the loan would not have been made. The contract was carried out in apparent good faith, and was so recognized by the bank, which now claims, in direct contradiction of its own certificate, to have been the custodian of the same bonds for a prior | pledgee. If there was any bad faith in the transaction it was not on the part of the plaintiff, nor is there a particle of testimony to show that he was aware of any on the part of any one else. From the time the bank issued and delivered the certificate of deposit it became his agent for the custody and safekeeping of the bonds. Its possessions was thenceforth his possession, as fully, to all intents and purposes, as if they had been actually delivered to him. While the pledge was not fully completed by actual delivery or deposit of the bonds on the day Thorp borrowed the money, the continuance of the loan depended on the full execution of the pledge; and the subsequent forbearance, which doubtless resulted from receiving the certificate of deposit, placed the plaintiff in no worse position than he would have occupied if the pledge and receipt of the money had been simultaneous. Upon the facts claimed by the plaintiff and suggested in the points submitted by him, all of which might have been found in his favor, he is entitled to the bonds as against the bank, if not aginst Berringer, the former pledgee, also. But, as to the latter, we express no opinion, for the reason that he is not a party to this suit.

The testimony complained of in the first assignment should have been excluded on the ground of incompetency.

"The corner lot and house, sixteen feet front on Franklin street, running back along Evans alley fifty-five feet, was sold by William Black, in 1866, to John Logan, leaving a space of five feet between that lot and the first house on Evans alley.

"William Black died in 1867, devising the remainder of the property to his two sons, Robert E. and John Black, under whom both the plaintiff and defendant claim title. The deed to Helen Alexander was made June 3, 1871, and to John Montgomery (now the plaintiffs) June 5, 1871. In none of the conveyances is there any allusion to the private alley or right of way claimed by the plaintiff, but the deed to Helen Alexander is for a lot sixty feet in depth, which would include the private alley.

"The testimony of Bartley Logan, Samuel Montgomery, William Harris and George W.

Judgment reversed and venire facias de novo Clarke shows that from the time the buildings awarded.

were erected, for a period of over thirty years at

For plaintiff in error, Messrs. H. L. Richmond least, the private alley was used by the oecu& Sons and John G. Johnson.

Contra, John J. Henderson, Esq.

pants of all the premises abutting on the alley, and that it was necessary for getting in their

"No doubt, as just stated, John Black could have closed the alley and abandoned it when he sold to the defendant and to Montgomery in June, 1871. The two deeds may be said to be cotemporaneous, Mrs. Alexander's being June 3d, and J. Montgomery's June 5th. Mrs. Alexander's deed covers the alley, and contains no reservation; Montgomery's deed contains no grant of an easement, and does not refer to the alley. "Was it the intention of John Black in these revive upon severance; but where they are apdeeds to destroy and annul the alley?