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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 Ejectment will not lie to settle the rights beone-fourth; each Reese and each Hammond tween copartners to their personal property. It one-eighth. The cleed was duly recorded within is, therefore, not necessary to consider whether ten days thereafter. In July, 1872, the two the firm was composed of general or limited Hammonds, who thus owned one-fourth of the partners, nor whether it would lie to recover a firm property, conveyed an undivided fourth of gross sum agreed to be paid for real and personal the land to McMatli, one of their copartners. estate so blended together as to give no indica In October, 1872, the latter agreed to sell it one-tion of the sum to be paid for the land. fourth interest in all the property of the tiim to It follows the learned judge was clearly right Du Bree & Kessler, which was followed by deed in entering judgment in favor of the defendants for the land in question in June, 1876. Title non obstante pererlicto. this acquired was what professed to be sold by

Juilement (firmed. the aforesaid agreement of 1st of June, 187+. For plaintiff'in error, Jessrs. Frank Fielding,

The law is well settled that when a firm holds George A. Jenks and lilliam D. Bigler. land, by deed expressed on its face to be the contra, Mexis. Jc Encelly & McCwly and partnership property of the firm, it is stamped, I Wallace & krebs. so far as the partners are concerned, with all the attributes of personalty. It continues to be per

BRADISH V. MCCLELLAN. sonalty until the partnership is dissolved, the business of the firm settled and its debts paid. | A testator made a will dated November 20, 1871. On Until that time it is held like other assets of the January 13, 1873, he executed another will, and on firm, and the extent of each partner's interest

January --, 1873, he executed a codicil to the last dated

will, wherein he referred to each will distinctly, and therein is to be ascertained on a final settlement.

declared that it he should die before a certain date the In the meantime, even a judgment against one earlier will was to be taken as his last will and testapartner will not be a lien on his interest in the

ment. Ile dice before the date he had provided for.

and upon the question whether the codicil attached to land: Lucas v. Laws, 3 Casey, 211; Erwin's

the later will became inoperative and tell with the will, Appeal, 3 Wright, 5.3.7; Meily v. Wood, 21 P. F.

or did it become a supplement to the prior will. llele, Smith, 473; Foster's Appeal, 24 Id., 391; West that as there was no intimation that the codicil should Hickory Mining Association v. Reed, 30 II., 38;

not take etreet, the clear intent was that it should at.

tach itself to whichever writing becane operative, and Foster v. Barnes, 31 Id., 377.

that it should have full effect. As MMath, the three Alberts and the two

Bradish's Appeal, 24 P. F. Sinith, 69, distinguished. Hammonds were all members of the firm to

Error to the ('ourt of Common Pleas of ('uimwhich the land was conveyed as personalty, the former purchased the interest of the two Ham

berland county. monds, with both actual and record notice that Opinion by MERCUR, J. Filed October 2, 1892. it was so held. His memorandum of agreement. This contention relates to the will of James 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 diltering from one in said firmı." Thus Du Bree and Kessler pur- the first will. On the - day of January, 1873, chased an interest in the land as partnership he executeci 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 ilid 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 Art takably treated it as the property of the firm, l 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 cient to defeat the title which we think the de20th of November, 1871, now I, James Hamilton, fendant so clearly took under the codicil to the the testator, declare said will of 20th of Novem- land in question. ber, 1871, marked A, to be my last will and tes- The learned judge correctly held that the tament, should I die before the 1st of March, I plaintiff could not recover. 1873, otherwise the will of the 13th of January,

Judgment affirmed. 1873, shall be and is hereby declared to be my !

For plaintiff in error, Messrs. John Hays and last will."

Stuart & Stuart.
After the death of the testator the three writ-

Contra, S. Hepburn, Jr., Esq.
ings were connected together, and all of them
admitted to probate. As he died before the first

UMBENHOWER v. MILLER.
of March, the writing of 13th of January did not
take effect as a will: Bradish's Appeal, 24 P.

A deed absolute on its face may be shown to be a mortF. Smith, 69. The question now is, did the gage by proof that the transaction was intended as a codicil become inoperative and fall with that mortgage, and proof of a separate written defeasance, writing, or did it become a supplement to the

and parol evidence that the deed and defeasance were

but one transaction. If the defeasance bears a later date will of November 20, 1871. Although a subse

than the deed, it is a question for the jury whether, un. quent will, without a revoking clause, will re der the parol evidence, the conveyance was a mortgage. peal a prior will, yet it does not preclude a testa

Error to the Court of Common Pleas of Berks tor by appropriate writing from reinstating the prior one. A codicil may revoke by implication

county. the posterior of two wills, by expressly referring | Opinion by MERCUR, J. Filed October 2, 1882. to and recognizing the prior one, as the actually It is well recognized law in Pennsylvania that subsisting will of the testator: 1 Jarman, 189. a deed absolute on its face may be proved by Here the codicil does not stop with an implica- parol to have been intended as a mortgage: tion. With both wills in his mind he refers to | Paige v. Wheeler, 11 Norris, 282. each distinctly, and in unmistakable language In this case both parties claimed title under the testator declares in a certain contingency one Hine. The defendant in error under deed the earlier one to be his last will and testament. from him, and the plaintiff in error by purchase That contingency occurred.

at sheriff's sale as the property of Hine. The When the testator executed the codicil he was plaintiff in error claims, although the deed to uncertain which of the former writings would the former was absolute on its face, yet, in fact, take effect as his will. It depended on the con- it was intended as a mortgage. He, therefore, tingency of his dying before the time specified. offered in evidence a separate defeasance, to be There, however, was no contingency stated in followed by parol evidence that the deed and regard to the codicil. There was no intimation defeasance formed part and parcel of the same that it should not take effect in either case. The transaction, and, as the defeasance was not reclear intent was that it should have full effect corded, the whole constituted an unrecorded and attach itself to whichever writing became mortgage. The court rejected the evidence. operative as a will. The codicil was to become This is assigned for error. a part of that writing, and the two constitute! It is true the written defeasance offered bears 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 ance. If they bore even date they constitute both executed at the same time is clearly rebutted in law a mortgage; but where the defeasance is by the reference in that codicil to the latter as a of later date, it is a question of fact for the jury writing then existing.

to determine, under the parol evidence, whether The conclusion to which we have come is not the conveyance was a mortgage : Reitenbaugh in conflict with the point decided in Bradish's v. Ludwick, 7 Casey, 131 ; Wilson et al. v. ShoenAppeal, supra, properly understood. The main berger's Executors, 3 Id., 295. While a subsequestion there was, whether effect should be quent independent agreement to reconvey on given to the writing of November, 1871, in re. repayment of the purchase money will not gard to charitable bequests therein. They were change an absolute conveyance into a mortgage, held to be valid. No person claiming under yet the fact that the defeasance bears a later the codicil was a party to that issue. Hence the date does not preclude a party from showing, rights of the defendant were not there discussed by parol, that it was executed in pursuance of nor decided. There is a dictum in the opinion an agreement under which the deed was made as to the intent of the codicil, to which we can- and delivered, thus forming a part of the same not agree. We cannot therefore hold that suffi- transaction. This was substantially the offer

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here. The defeasance on its face gives some fide holder for value, and may maintain his evidence of an intention to consider both in- possession against everybody until the contrary struments of the same date. The offer is by is successfully established by those who underparol evidence to connect the two, and prove | take to assail his possession. they constituted one transaction.

It is claimed by plaintift that in making It is true, the offer is not to prove that the the loan to Thorp in April, 1878, an essential defeasance was executed at the time the deed provision of their agreement was that the latter was delivered; nor is it essentially necessary should deposit in the First National Bank of so to prove. Other evidence may sufficiently Meadville $9,000, Shenango and Allegheny Railprove the necessary connection between the road bonds, as collateral security for the loan, two written instruments. A defeasance may and furnish him with the bank's certificate of be wholly proved by parol. Here the offer was such deposit; that, a few days thereafter, he not only to give in evidence the written defeas- received from the cashier a certificate, setting ance, but also to prove, by other evidence, the | forth, in substance, that Thorp had deposited identity of the transaction. The learned judge in the bank bonds corresponding in kind and erred in rejecting the evidence.

amount with their agreement, “to be held as Judgment reversed and venire fucias de noro security for the payment of his note for $6,674.40, awarded.

dated April 25, 1878, due in one year from that For plaintiff in error, Messrs. Benj. F. Dettra

date;' that, resting in the belief that Thorp and Frank R. Schell.

had fully complied with the conditions on which Contra, Messi's. Henry C. G. Reber and Sam

he obtained the loan, he awaited the maturity uel L. Young.

of the note; and, immediately after the failure

of Thorp, he called at the bank and was informed GIBSON V. LENHART.

by its president that his bonds were there and

his claim was secure; that afterwards, upon inWhere a bank issues its certificate of deposit to a certain

quiring for the bonds, an envelope, indorsed individual, it becomes liable to the individual for the “Dr. Gibson, $9,000, bonds, Shenango and Alleproper production and surrender to him at any time gheny Railroad Co.," was handed him by an of the bonds or other matter specified in such certificate

officer of the bank, who informed him that on of deposit, when the rules of the bank in regard to the production of the certificate are complied with.

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 Opinion by STERRETT, J. Filed December |

past due coupons were collected by the bank, 30, 1882.

and the proceeds, $315, marked “The property It may be conceded that in 1877 the bonds in of Dr. William Gibson," placed in the envelope controversy were deposited in the First National with the bonds. After the failure of the bank Bank of Meadville, to secure the note of Thorp the money thus identified as his was handed to & Reynolds in favor of Berringer, and that the plaintiff by the temporary receiver; but, in the note was not fully paid nor the collaterals vol- absence of the still missing certificate, he deuntarily surrendered to the pledgor; but it by clined to surrender the bonds, and they reno means follows that the same bonds may not mained in the vaults of the bank until they have been subsequently pledged to the plaintiff were taken by the sheriff on the writ of replevin as collateral security for the money loaned by and delivered to plaintiff. him to Thorp in April, 1878. Being negotiable If the case had been submitted to the jury on securities, every transfer of the bonds to a new the testimony before them, they would have holder, for value and without notice, would give been warranted in finding the facts substantially the latter a good title to them as against the as claimed by plaintiff, and that the bonds in former holder. That such is the status of coupon controversy are those referred to in the certifibonds, similar to those in question, is too well cate of the cashier and afterwards exhibited to settled by recent decisions to admit of any doubt: the plaintiff in the bank, where they had been County of Beaver v. Armstrong, 8 Wright, 63, deposited by Thorp in compliance with the con69; Murray v. Lardner, 2 Wal., 110, and Com- | dition on which he obtained the loan. missioners, etc., v. Bolles, 4 Otto, 109. Like a In view of the testimony and the conclusions bank note, or promissory note indorsed in blank, which might have been fairly and legitimately they pass by delivery, and a good faith pur-drawn therefrom, the learned judge erred in chaser is unaffected by want of title in his ven- refusing the plainliff's points, and in withdrawdor. The last taker is presumed to be a bona | ing from the consideration of the jury the several questions of fact therein presented, and also | HELEN ALEXANDER v. WILLIAM HARRIS. in charging as complained of in the fourth to seventh specifications inclusive. As already The evidence in this case not suficient to warrant a suggested the questions of fact referred to were

tinding that there was an implied reservation of a

right of way. fairly raised by the evidence, and if they had been found, as they might and probably would

Appeal from the decree of the Court of Comhave been, in favor of the plaintiff, he would nion Pleas, No. 2, of Allegheny county. have been entitled to a general verdict establish- Bill in equity by William Harris against ing his right to all the bonds.

Helen Alexander, to restrain defendant from It cannot be pretended that the bonds were interference with an alleged easement. The pledged to the plaintiff as security for an in- court below, in the following opinion (wbieb dependent and antecedently contracted debt. contains the facts of the case), entered a decree The cotemporaneous agreement to deposit them in favor of plaintiff, which is assigned for error: as collateral security entered into and formed “The plaintiff claims the use of a five feet an essential feature or condition of the contract alley way in the rear of defendant's lot, which of lending. It was doubtless the leading con- she has obstructed and prevents him from using. sideration, so far, at least, as the plaintiff was “William Black, in 1847, bought a lot of concerned, without which the loan would not ground in Allegheny City, fronting on Frankhave been made. The contract was carried outlin street about sixty-three feet, and running in apparent good faith, and was so recognized back along Evans alley about ninety-two feet. by the bank, which now claims, in direct con- | Within a few years thereafter he erected two tradiction of its own certificate, to have been welling houses at the corner, fronting on the custodian of the same bonds for a prior Franklin street, each sixteen feet front; also two pledgee. If there was any bad faith in the on the rear part of the lot, fronting on Evans transaction it was not on the part of the plain- , alley, each sixteen feet front. In the rear of tiff, nor is there a particle of testimony to show the front buildings was an alley or passage-way that he was aware of any on the part of any opening out to Evaus alley, which was used by one else. From the time the bank issued and all the occupants of lots abutting on the alley delivered the certificate of deposit it became his from the time the buildings were put up until agent for the custody and safekeeping of the very recently. At first it was ten feet wide, but bonds. Its possessions was thenceforth his pos- before the death of William Black, and before session, as fully, to all intents and purposes, as the sale of the lots, it was reduced to five feet by if they had been actually delivered to him. | moving back the fences in rear of the front While the pledge was not fully completed by buildings. actual delivery or deposit of the bonds on the “The corner lot and house, sixteen feet front day Thorp borrowed the money, the continu- on Franklin street, running back along Evans ance of the loan depended on the full execution alley fifty-five feet, was sold by William Black, of the pledge; and the subsequent forbearance, in 1866, to John Logan, leaving a space of five which doubtless resulted from receiving the feet between that lot and the first house on certificate of deposit, placed the plaintiff' in no Evans alley worse position than he would have occupied ifl “William Black died in 1867, devising the the pledge and receipt of the money had been remainder of the property to his two sons, simultaneous. Upon the facts claimed by the Robert E. and John Black, under whom both plaintiff and suggested in the points submitted the plaintiff and defendant claim title. The by him, all of which might have been found in deed to Helen Alexander was made June 3, his favor, he is entitled to the bonds as against | 1871, and to John Montgomery (now the plainthe bank, if not aginst Berringer, the former titts) June 5, 1871. In none of the conveyances pledgee, also. But, as to the latter, we express is there any allusion to the private alley or right no opinion, for the reason that he is not a parts of wily claimed by the plaintiff, but the deed to to this suit.

Hielen Alexander is for a lot sixty feet in depth, The testimony complained of in the first as- | which would include the private alley. signment should have been excluded on the “The testimony of Bartley Logan, Samuel ground of incompetency.

Montgomery, William Harris and George W. Judgment reversed and venire fucias 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. II. L. Richmond | least, the private alley was used by the oecu& Sons and John G. Johnson.

pants of all the premises abutting on the alley, Contra, John J. Henderson, Esq.

and that it was necessary for getting in their

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coal, and for the draining of their lots. Some an alley there at the time, and he supposed it kind of fences were erected on either side, with was to remain for the benefit of the properties. gates from each lot into the alley. William | Mrs. Alexander knew there was an alley there, Black lived in one of the houses and rented the or, at least, that the owners and tenants of the others. His tenants used the alley. His decla- | other lots used it as an alley, and did not conrations to Logan and Clarke, that there was an trovert their right to use it until several years alley, or he intended to leave an alley, are com- afterwards, when she discovered that her deed petent evidence, for they were made when he covered it. Montgomery bought with the alley owned the entire premises: McEldowny v. well marked, and with gates leading into it Williams, 28 Pa. St., 492; McKillip v. McIlheny, from his and the other lots, supposing it was 4 Watts, 317. While he owned the entire prem- common to all. ises he could abandon the alley and shut it up, "There is, therefore, no evidence of any inor reduce it from ten to five feet wide. When tention on the part of John Black to abrogate he sold to Logan in 1867, by leaving five feet in the alley, unless that can be inferred from the the rear of Logan's lot, between that and the deeds. Nor is there any evidence that Montlot now owned by the plaintiff, he undoubtedly gomery knew of the deed to Mrs. Alexander. meant it as an alley way, and for the benefit of The question then is, was the lot of Mrs. Alexthe other lots, for it was of litlle or no use to ander, at the time she purchased, subject to Logan, as his was a corner lot. It was neces- the easement or servitude now claimed by the sary to get to the rear of plaintiff's lot, and for plaintiff'? Or, in other words, was the right to that purpose the alley would have to extend in use this alley appurtenant to the lot purchased the rear of the adjoining lot to Logan, the one by Montgomery? now owned by the defendant.

"The alley was laid out by William Black, "When the title became vested in John the original owner, for the use of the tenants Black, after the death of his father, and the occupying these houses. It had been so used quit-claim from his brother, he was the exclu- for over twenty years. The fact that it was sive owner of all the other lots abutting on the ten feet wide at first and then reduced to five alley. He might have abolished the alley en-feet is immaterial. The plaintiff only claimis tirely (except, perhaps, that part immediately an alley five feet wide; that much at least had in the rear of the John Logan lot), or could always been in use. When Montgomery and have made any change in it he pleased, for he Mrs. Alexander bought, the alley was open and then owned the fee as well as the easement. used by all the occupants. The fences and gates But the evidence shows that the property was were old, indicating a long established use. It continued in the same condition, and was was necessary to give access to the rear of these rented and used by the occupants as it had lots; necessary for getting in coal and for drainbeen ever since the buildings were erected. age. It was in daily use. The easement was When Mrs. Alexander bought in 1871, it was apparent and notorious; it was continuous and so used. There were gates opening into the permanent in character ; seemed essential to the alley from the rear lots; a gate from her back | proper enjoyment of the premises. yard, from the back yard of Montgomery (now “Under such circumstances, the easement the plaintiff's lot), and from the Bartley Logan passed as appurtenant to the lot conveyed to lot. The fences and gates continued until she | Montgomery, and was a servitude on the lot closed the alley in 1879.

| purchased by Mrs. Alexander. "No doubt, as just stated, John Black could “In Kieffer v. Imhoff, 2 Casey, 438, where have closed the alley and abandoned it when both the dominant and servient properties had he sold to the defendant and to Montgomery in been acquired by the same owner, and thus, by June, 1871. The two deeds may be said to be the union of the two titles, the easement of an cotemporaneous, Mrs. Alexander's being June alley had been extinguished, it was held, that 3d, and J. Montgomery's June 5th. Mrs. Alex- the alley having been kept open by the owner, ander's deed covers the alley, and contains no the easement was revived on a subsequent sale reservation; Montgomery's deed contains no by the sheriff of the lots to different purchasers. grant of an easement, and does not refer to the Servitudes,' said LEWIS, C. J., 'which are exalley.

tinguished by unity of title, do not, in general, "Was it the intention of John Black in these revive upon severance; but where they are apdeeds to destroy and annul the alley ?

parent and obviously continuous, they do.' "At the time the sales were made he was live!" The owner of real estate may so dispose of ing in Missouri. The sales were made by an it as to create an easement, which is not deagent, Alex. Leggate. He testifies, there was | pendent upon the lapse of time for its validity.

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