In re Receivership of John Quinn.

of wheat; but he asserted that there were yet coming to him the onehalf of 92 bushels of wheat, the one-half of 120 bushels of potatoes, and the one-half of 20 acres of corn, which he said averaged 50 bushels to the acre. It was upon these and other estimated claims arising out of the lease that he made his demand for preference.

By the common law, when an execution was levied upon the tenant's goods, the landlord lost his rent, and could not enter to distrain, for the execution took the place of all debts, except specific liens, and the goods taken by the sheriff, being in custodia legis, could not be distrained. But the Act of March 21, 1772, 1 Sm. L. 370, provided that chattels levied in execution should be subject to the payment of one year's rent for the premises on which they should be seized, and that the sheriff, after the sale of the goods, should pay to the landlord, or other person empowered to receive the same, such rent so due, and apply the overplus thereof, if any, towards satisfying the debt and costs. To the same effect practically is the Act of June 16, 1836, section 83, P. L. 777. The relief thus given to the landlord extended, as it will be observed, only to cases where the tenant's goods had been taken in execution, and the right of entry by the landlord for the purpose of distress was lost. And so the law remained until the passage of the Act of May 26, 1891, P. L. 122, which provided that, where the tenant should make an assignment for the benefit of creditors of goods and chattels upon demised premises, and which were liable to distress by the landlord for rent, the landlord should be first entitled to receive, out of the proceeds of the sale by the assignee any sum or sums due him for rent, not exceeding one year. This Act was, however, specifically repealed by the Act of 1901.

By section 31 of the Act of 1901, it was provided that "any lien or claim for wages, for rent, of mechanics and material men, or otherwise, which by virtue of any Act of Assembly would be preferred in case of an execution, shall retain its preference in case of an assignment, and to the same extent." And the supplement to this section, passed June 19, 1911, P. L. 1069, is of similar import.

In Grayson v. Aiman, Inc., 252 Pa. 461, it was decided that, where goods subject to distress for rent pass into the hands of a receiver appointed for the tenant, and are sold by the receiver, the landlord is not entitled, upon the distribution of the funds so realized, to a preference for rent under the Acts of 1836 and 1891. Mr. Justice Stewart, in delivering the opinion of the court, said: "Were it to be conceded that preference in cases of receivership fall within the spirit of the Act of 1891, while this would establish the equity appellant contends for, it would come far short of establishing a statutory right which alone can give relief. Any so-called equitable construction that would so extend the Act of 1891, or that of 1772, as to include the relief therein provided for cases arising under receiverships, in view of the plain and unambiguous language of the Act defining and limiting its application, would be nothing less than supplying a supposed defect in the Act which the Legislature could have easily supplied. It would not be construing the Act, but altering it. And this we may not do." If,

In re Receivership of John Quinn.

then, this was the law under the Act of 1891, it would seem to follow that the same interpretation should be given to the Act of 1911, for there is no provision in the latter Act that preference shall be applied to receiverships. We are, therefore, of the opinion that the auditor erred in awarding the balance of this fund to John H. Ranck, even if his contention that there was rent due is sustainable, which in our judgment, in view of his own testimony, is exceedingly doubtful. The exceptions raising this point are, therefore, sustained.

The next question arising is, whether or not Martin Doutrich is entitled to a preference on his judgments. The auditor discussed this question at some length and concluded to disallow the judgments as preferred claims. In this we think he was correct. Doutrich's own testimony convinces us that it was merely an attempt to obtain preference over other creditors of Quinn, not only when Quinn was insolvent, but when he was about to flee from the jurisdiction of this court. The defendant's property was properly taken in hand by a receiver duly appointed by the court, and should, we think, be distributed for the benefit of all his creditors. The distribution should, therefore, have been made upon that basis, and even the costs of the executions should not have been allowed in preference to the claims of the general creditors. The judgment for $500.00 was dated January 10, 1918, and was payable on the same day; and the judgment for $375.00 was dated April 1, 1916, payable on demand. The defendant, however, admitted that they were both dated back, and he did not or could not tell the exact time when they were signed. The executions upon them were issued on January 30, 1918, and on February 2, 1918, application for the appointment of the receiver was made. In Clark's Assigned Estate, 38 C. C. R. 227, it was held, and, as we think, properly, that where a judgment creditor issues execution before an assignment is made by the debtor or an appointment of a receiver, the writ will be stayed upon application of the assignee or receiver, and upon the distribution of the fund realized by the assignee or receiver, the execution upon the judgment will be first paid, unless it be shown that there was an intent on the part of the assignor to give preference to the judgment creditor, and that the burden of showing such intent rests upon him who attacks the preference, unless the note upon which judgment was entered was given at or about the time of the making of the assignment. The evidence here shows that the notes were given about that time, and the burden was, therefore, on the claimant. In our judgment, he failed to show his good faith in the transaction. The exception to the item of costs, $28.45, is also sustained, and that item is disallowed.

The claim of $50.00, made by Mr. Eaby, was not a preferred claim, but he is entitled to participate in the general distribution, so far as this or any other claim is concerned which he may legally prove before the auditor.

The exceptions covering the above items are sustained, and the report is referred back to the auditor, to make distribution in accordance with this opinion.

Exceptions sustained.

Court of Common Pleas of Lancaster County

Wilson v. Wilson.

Partnership-Proof of—Tenants in common on a farm.

In order to prove the existence of a partnership, much stronger testimony is required when the controversy is between the alleged parties to it than is required between such parties and third persons. Its formation between the parties must rest on a contract express or implied.

There is no presumption that a partnership arises from the relationship of tenants in common alone.

Bill, answer and testimony.

Equity Docket No. 6, page 187.

Coyle & Keller, for plaintiff.

H. Edgar Sherts, for defendant.

April 19, 1919. Opinion by HASSLER, J.

From the bill, answer and testimony we find the following facts: 1. Margaret V. Wilson, the plaintiff, and Anna J. Wilson, the defendant, did not, on April 1, 1912, nor at any other time, enter into an agreement of co-partnership, either express or implied, to continue to April 1, 1917, for the purpose of carrying on the business of farming. 2. No co-partnership having been formed, none was ever carried on by them.

3. J. Milton Wilson did on April 22, 1912, lease his farm in Little Britain Township for the term of one year, from April 1, 1912, with the privilege of renewing it from year to year for the further term of four years, to his son Saunders A. Wilson. The said Saunders A. Wilson did not sub-lease it orally to the two defendants, as is alleged in plaintiff's bill. He did assign a written lease from April 1, 1916 to April 1, 1917 to Margaret V. Wilson, the plaintiff. The lease from J. M. Wilson to Saunders A. Wilson was made on April 22, 1912, in connection with the agreement made by said J. Milton Wilson with his two daughters, the plaintiff and defendant in this case, that they would support their mother, and in that agreement the lease is referred to as having been made in connection therewith. The mother was ill, and the agreement of the parties to this case with their father was that they should support and maintain her in consideration of a note of one thousand dollars which he gave them, and which was not to be paid until two years after his death. Saunders A. Wilson is a brother of the two parties to this suit, and as such also was interested in the care and support of his mother. After working on the farm a few days he left it for his home in Harrisburg, but, as we have found, he did not orally assign the lease to the two parties at that time on condition that they formed a partnership.

4. The plaintiff did not contribute any property or money except a nominal sum for the purpose of carrying on the business of farming.

5. The defendant did make the purchases and payments, received

VOL. XXXVII, No. 5

Wilson v. Wilson.

all money realized from the sale of the crops of the farm, and put her own money into the business. The plaintiff did do the housework, in which she was assisted by the defendant.

6. The defendant has never rendered any account of her conduct of the business of farming to the plaintiff.

7. It is agreed that the business was carried on at a loss for the first year.

In finding the above facts it is only necessary for us to give our reasons for finding the first, viz.: that no express or implied agreement to form a partnership was made by the parties. The uncontradicted facts are that J. M. Wilson, after failing to properly support his invalid wife who was the mother of the parties in this case, entered into an agreement with them that they would support, maintain, and care for her in consideration of a note for one thousand dollars which he gave them, and which was not to be paid until after his death. At the same time he entered into a lease with his son Saunders A. Wilson, whereby he leased to him his farm of ninety-six acres in Little Britain Township, for a period of one year, with the privilege of renewal from year to year, until the first of April, 1917. In a few days he, Saunders A. Wilson, left the farm, going to his home in Harrisburg, and the care and management of it devolved upon the two parties to this suit, in pursuance of their contract with their father to support and care for their mother. There was very little stock and practically no farming implements on the farm at that time. About that time the two parties of this suit received a legacy from an aunt, which they knew they were getting before the agreement was made with their father. The plaintiff used her portion of the money to pay off indebtedness, declining to put any of it into the business of running the farm. Part of this indebtedness was due to the defendant and was paid to her. The defendant put all the money she had into farm implements and stock. The plaintiff further refused to permit a mare and two colts to be considered in connection with the business of farming.

Saunders A. Wilson testified that he made an oral lease with the plaintiff and defendant, on condition that they formed a partnership for operating the farm, and that they agreed to do so. Margaret V. Wilson, the plaintiff, corroborated this but Anna J. Wilson, the defendant, denied it. Saunders A. Wilson leased the farm by a written lease to the plaintiff in 1916 for the last year of the term for which he testified he had assigned it to both parties, and about the same time he gave notice to the purchaser of the farm that he had a lease upon it, and would claim his right to renew it. These two acts are inconsistent with his testimony that he had previously leased it to the parties to this suit and are contradictory of it.

Margaret V. Wilson testified the agreement had been entered into with the defendant. She further testified that she refused to put any money in it, and a year afterwards when it did not pay, the defendant refusing to give her any account of the business, she expressly said that she would have nothing further to do with it. She declined to aid in it in any way and to continue her endorsement of any notes for the de

Wilson v. Wilson.

fendant to be used in the purchase of anything for the farm, or to be interested in it, in any way. This was inconsistent with and contradictory of her testimony that an agreement of partnership had been entered into.

The defendant denies that she ever entered into an agreement of co-partnership with the plaintiff. She says it was never talked about; that when the brother went away they were left with the farm in their possession and had to do something; that she took charge of the farm and farmed it at a loss for a year or two; that Margaret did work in the house as she did; that she, the defendant, employed the farm-help and paid them, and paid all stock and supplies that she bought for the farm out of either her own money or money obtained from the sale of the produce of the farm; that Margaret's name appeared on the notes in 1912 as an accommodation to her; and that at no time was a copartnership agreement made, or was such a thing recognized by her.

A number of witnesses were called who testified either that they dealt with these parties as partners, or that they dealt with Anna as an individual in operating the farm. Dr. Stubbs testified that they told him they would be responsible for the medical services rendered to their mother. This, however, did not make them partners, but was in compliance with their agreement with their father.

The relation of these parties as to the farm simply grew out of their having been left on it, to care for their mother, by their brother and father, both of whom went away shortly after the lease was made, and did not arise from any express or implied agreement of co-partnership between them. They were no more than co-tenants of the farm, and this did not make them partners. As the defendant, with her own money, and at her own risk, conducted the business, she had to bear all losses, and is likewise entitled to all profits that have been made.

It is agreed by both the parties that the operation of the farm resulted in loss during the first year or two, so that the plaintiff would be entitled to nothing, if an agreement of co-partnership had been made by them, as she dissolved and ended it in 1913. It is true that she says in the latter part of her testimony that she did not dissolve it. What she say and what she did do was a dissolution of it, however, if one existed, no matter whether she calls it that or not. She therefore suffers no loss by our finding that no agreement of co-partnership was made.

did

CONCLUSIONS OF LAW.-In order to prove the existence of a partnership much stronger testimony is required, when the controversy is between the alleged parties to it than is required between such parties and third persons. Its formation between the parties must rest on a contract expressed or implied; Gibb's Estate, 157 Pa. 59. Where the interest of the third parties is not involved, much stronger proof is required to establish the existence of a partnership than where the question arises between alleged partners and third persons: Tillinghast v. Berkery, 10 York 129. The parties to this suit having been left in possession of the farm, bore the relation to each other of tenants in common while they were in possession. There is no presumption that a partnership arises from that relation alone; Neill v. Shamburg, 158 Pa.