Bowers v. Bowers

• Decision Date: 01 November 1880
• Citation: 95 Pa. 477
• Parties: Bowers <I>versus</I> Bowers.
• Court: Pennsylvania Supreme Court

Page 477

95 Pa. 477

Bowers versus Bowers.

Supreme Court of Pennsylvania.

October 18, 1880.

November 1, 1880.

October 18th 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas of Jefferson county: Of October and November Term 1880, No. 33 C. L. Corbett, P. W. Jenks and A. L. Gordon, for plaintiffs in error.—The terms of the alleged partnership should have been reduced to writing if it was intended to pass any interest in the timber: Pattison's Appeal, 11 P. F. Smith 294; Yeakle v. Jacobs, 9 Casey 376; Story on Partnership, p. 124; Hale v. Henrie, 2 Watts 143; Lancaster Bank v. Myley, 1 Harris 549; Ridgway, Budd & Comly's Appeal, 3 Harris 181. If the timber is claimed under a parol contract of partnership, the terms thereof must be clearly set forth and proven, and not depend upon loose declarations: Soles v. Hickman, 8 Harris 182; Ferguson et al. v. Stoever, 9 Casey 413; Poorman v. Kilgore, 2 Casey 366.

Jenks & Clark, for defendant in error.—The facts in the case clearly established a partnership in the timber. If so, it became personalty. "A share in a partnership, whether its property consists of land or not, must, as between the real and personal representatives of a deceased partner, be deemed to be personal and not real estate:" Lindley on Partnerships, pp. 566, 567 and 568, where many authorities are collected sustaining the principle. In Erwin's Appeal, 3 Wright 535, it is ruled that the fact that the title is taken in the name of one of the firm constitutes the holder of the title a trustee for the firm and the title enures to the benefit of the firm, and Abbott's Appeal, 14 Wright 234, sustains the same view.

Mr. Justice STERRETT delivered the opinion of the court, November 1st 1880.

It is conceded that the timber replevied by the plaintiff below was cut by the defendants upon part of the tract of land which, on June 5th 1858, was conveyed in fee by A. Caldwell et al. to John Bowers, now deceased, the husband of one of the defendants and the father of the other. It is also alleged and not denied that prior to that, in 1848, he had acquired the equitable title, in pursuance of which he took and continued to hold possession of the land. In the absence, therefore, of competent proof that the title of John Bowers either to the land thus acquired or the standing timber thereon passed out of him in his lifetime or out of his heirs since his decease, the legitimate inference is that it still remains in his widow and heirs. Hence, it was incumbent on the plaintiff below to show that he had acquired title either to the land upon which the timber was cut or to the timber itself. He did not pretend to claim the former or any part thereof, but his contention was that in the lifetime of his brother John, he acquired through and under him the title to the timber growing on that portion of the tract from which the defendants cut and removed the timber in dispute. In support of this he alleged and undertook to prove that from 1853 to 1859, he and his brother John were in partnership in the lumbering business; that by a verbal agreement or understanding between them, John acquired and held in his own name the timber standing on the tract of land above mentioned in trust for the firm and for the purpose of being used in the firm business; that the timber was so used until 1859, when a dissolution took place and the partnership assets, including the timber that remained, were divided; and by another verbal agreement, the timber south of a certain line was allotted in severalty to John, and that north of the line to Solomon. Thus we have, as the basis of the plaintiff's title to the timber in controversy, an alleged parol trust in John for the firm, and then a parol partition between the members of the firm;...