verdict under correct instructions. It satisfied the court, who denied a new trial on the merits. The evidence was credible, and was believed by the court and the jury, and we know of no reason for discrediting it; and we have no disposition to disturb the verdict or the judgment. We consider the whole of the evidence sufficient to establish a resulting trust in the wife. The fact that the husband leased the land in his own name; that he brought an action, and recovered a verdict for damages to the surface, against a coal company; that he gave his personal obligation for the payment of part of the purchase money, which, however, it was testified, was paid with the wife's money,-these were all facts to be considered by the jury on the question of ownership. But they were not controlling facts. They would not necessarily, either separately or combined, suffice to destroy the wife's equitable estate. They were all susceptible of explanation, and such explanation was given. Nor do we consider there is any force in the contention that the wife's estate is barred by the statute of limitations. She testified, as did her husband, that the first knowledge she had that the deed was not in her name was in 1890, and that she immediately demanded a deed from her husband, which he promised, but procrastinated for upward of two years before he gave it to her. This period is not enough to bring the statute into operation. The authorities are abundant that the statute does not commence to run until she had knowledge of the fraud. The plaintiff is in the same situation as were the appellants in the case of Miller v. Baker, 160 Pa. St. 172, 28 Atl. 648; and of them we said: "If, after the deeds were recorded, and before the conveyance to her of the title acquired by them, he had sold the land to a bona fide purchaser, the latter would have taken a title unaffected by the trust. But the appellants were not such purchasers. They bought at a sheriff's sale, upon a judgment against the husband, and with notice of the wife's equity. They have, therefore, his title only; and that, as we have seen, cannot prevail against her." This is precisely the case here, as we have already pointed out.

The foregoing views dispose of all the assignments of error except the eighth, ninth, tenth, and eleventh. As to the first three of these, they relate only to the offer of proof by the wife that she was in ignorance of the fact that the deed was made to her husband until she saw it in 1890, and that she immediately made complaint to her husband, and demanded a deed to herself from him, and that such a deed was made in 1892. Most certainly this was competent testimony. There could be no possible reason for rejecting it. Her ignorance of the true character of the deed was her excuse for not having it at an earlier date. That kind of excuse the law recognizes as sufficient, and it would be strange, indeed, if such testimony, when offered, should be rejected.

What she said in regard to the payment of the money by her father and brother was not embraced in the offer, and was not excepted to when stated. Besides, she might easily know the fact that such payments had been made, without having witnessed the actual delivery of the money. As to the admission of the deed from the husband in 1892, of course, it was proper to receive it. The eleventh assignment is only that the court refused a new trial. The mere statement of it is a sufficient answer to it. Judgment affirmed.

1. A parol partition between tenants in common may be limited to the surface of the land, leaving the coal in common.

2. Where tenants in common make a parol partition, the presumption is it included the whole land, the coal as well as the surface; and if one claims that the partition was only as to the surface, and did not include the coal, the burden is on him to show that fact.

3. In an action for partition of the coal only on certain land, both parties admitted that there had been a prior rarol partition by agreement; but plaintiff claimed it did not include the coal. Held, that plaintiff's continuing to take coal after such partition did not show that there never was a fully executed partition of the coal, but it was a question for the jury to determine what the parties intended to include in the parol partition.

Appeal from court of common pleas, Westmoreland county.

Action by John H. Byers against Jacob Byers for partition. From a judgment for defendant, plaintiff appeals. Reversed.

James S. Moorhead and John B. Head, for appellant. D. S. Atkinson, John M. Peoples, and W. S. Byers, for appellee.

MITCHELL, J. The parties derived title in common, under the will of their father, in 1835. In 1895 appellant brought this action for partition of the coal only, thereby admitting that the surface of the land was held in severalty. The appellee defended on a parol partition claimed to have been made in 1848. Both parties therefore agreed that there was a partition, and, as it was admitted that there had never been any deed between them, the partition necessarily rested in parol. Appellant, however, claimed that what was done in 1848 was a temporary division of the surface for convenience of working only, which did not include the coal, and which was incomplete, but ripened into title in severalty as to the surface by the long-continued separate possession of the purparts taken under it. Appellee, on the other hand, contended that it was a complete and executed partition from its date, and included the coal as well as the surface. The difference as to how the parti

It was settled as early as Ebert v. Wood, 1 Bin. 216, that a parol partition between tenants in common is valid and conclusive. Chief Justice Tilghman puts the decision mainly on the ground of part performance, which the English courts of equity had held to take such contracts out of the bar of the statute of frauds. But another and equally weighty reason might be added from the nature of tenancy in common. As each tenant has not only title, but joint and several possession of the whole and of every part, the change to a title in severalty in any specified part is not such a transfer of title to land as is within the mischief contemplated by the statute of frauds. This reason was indicated in Mellon v. Reed, 114 Pa. St. 647, 8 Atl. 227, and again more fully in McKnight v. Bell, 135 Pa. St. 358, 19 Atl. 1036, where it is said by our late Brother Clark: "A partition which merely severs the relation existing between tenants in common in the undivided whole, and vests title to a correspondent part in severalty, is not such a sale or transfer of title as will be affected by the statute of frauds. The reason of this rule rests in this: That the partition is not an acquisition or purchase of land, nor is it in any proper sense a transfer of the title to land. It is a mere setting apart in severalty of the same interest held in common, not in other, but in the same, lands." The cases have drawn the line between a mere parol agreement to partition and an agreement followed by acts of the parties on the land itself, indicating several possession taken in execution of the agreement. The former is inoperative, but the latter is valid.

The right of partition by the parties is an incident of ownership, and, like the right of an owner in severalty to a lien, is only limited by such restraints as the law has put upon it in regard to personal capacity and mode of conveyance. The statute of frauds requires ordinary conveyances of land to be in writing, but, as we have already seen, the statute does not apply to executed partitions between tenants in common. They are therefore free,

and intentions of the owners, we see no room for distinctions in regard to the methods of partition, whether by vertical or by horizontal lines. lines. There is no difference in the right nor in any other respect in facility of proof of the intent, inasmuch as the ordinary mode is by vertical lines; and therefore such partition is more readily presumed, and acts done in pursuance of it on the surface are more easily shown. Horizontal divisions of land, as such, are comparatively rare, but they are well established, and may be made in the same way, and subject to the same rules, as any other mode, if the parties so agree. Their modern development, especially in this state, may well account for the absence of cases in our reports, but the principles on which such questions are to be decided do not admit of doubt. They are illustrated by the case of Caldwell v. Copeland, 37 Pa. St. 427, where, although the court is treating of a conveyance by deed, it said: "There is no more reason why mines in another's land, whether opened or unopened, may not be held by a deed, *than why land in its most ordinary signification may not be so held. In other words, mines are land, and subject to the same laws of possession and conveyance." And the analogous right of severance of the strata of land horizontally by the individual owner by acts, as well as by deed, is established in Canal Co. v. Hughes, 183 Pa. St. 66 (opinion filed since this case was argued) 38 Atl. 568.

There was no objection to the plaintiff's proving, if he could, that the partition was limited to the surface, and that the coal was left in common. The parties might make partition of all their land, or of any part of it, and in any manner they chose to agree upon. In Coleman v. Coleman, 19 Pa. St. 100, the parties made partition of their land in 1787, excepting out of it the Cornwall ore banks, which they agreed should remain in common. This court held not only that the partition was valid, but that the retention of the ore banks in common was part of the consideration for the purparts in severalty, and therefore could not be subject to a new partition.

The ordinary mode of partition being of the whole land by vertical lines, and it being admitted that a partition had been made, the burden was upon the plaintiff to show that it was limited to the surface. In plaintiff's sixth point he asked the court to say that his continuing to take coal after the partition, even if only permissive, showed that there never was a fully executed partition of the coal, and plaintiff therefore must recover on his written title. This point, however, could not have been affirmed. The execution of a parol partition, which is required by the cases, means such acts of the parties upon the land as show a part performance of the agreement, sufficient, as suggested by Chief Justice Tilghman, supra, to bring it within the equity of enforcement. The presumption from the con

ceded fact of partition was that it included the coal as well as the surface, that being the usual method. On the question whether it did or not, the plaintiff was entitled to go to the jury, but he had the burden of proof. An occasional use, such as was shown here, if the jury should find it to be permissive only, and not in the exercise of a right, would not prevent the partition from being executed in the legal sense, and including the coal as well as the surface. It was evidence of a claim of right, but not conclusive either of such right or of the failure to execute the partition.

The will of John Byers had no bearing on the case, except as showing that he had in his mind the timber, coal, and limestone on the tract as distinct elements to be considered in the equal division which he directed. But his devise was of the fee in common, and his devisees could divide in any way they pleased.

Nor had the statute of limitations any bearing on the case. The plaintiff clearly never had any possession of the coal which was either adverse or exclusive, and the surface, as already said, was admitted by both parties to be held in severalty. There was no dispute as to the parol partition, and the only contested issue was what it included. The jury should have been instructed that the parties had the right to make such partition as they chose, either of the whole land or of the surface only; that the presumption was that they parted the whole, but that presumption would give way to the intention of the parties; and it was for the jury to determine from all the evidence what the parties intended to include in the partition, and to find a verdict that would carry out that intention. Judgment reversed, and venire de novo awarded.

In re JOHNSON. Appeal of GRAHAM et al. Appeal of BYRNES.

(Supreme Court of Pennsylvania. Jan. 3, 1898.)

PLEDGES-DElivery.

An asphalt company gave a creditor a note, which, after the usual promise, recited that certain named property had been "deposited as collateral," "in our yard at N., Pa., which we agree to save harmless for the payment of this note." Held. that the pledge was not good against the company's receiver, pledgor did not deliver the goods, the pledgee did not remove them or take possession of them either actually or constructively, and they were not even separated, marked, or in any way distinguished from the company's unpledged assets.

where the

Appeal from court of common pleas, Lawrence county.

Proceedings for the distribution of the money in the hands of George W. Johnson, receiver of the Western Asphalt Block & Tile Company. From an order and decree dismissing their exceptions to the auditor's report, A. F. Byrnes and James Graham & Son separately appeal. Affirmed.

Charles W. Jones and Robert K. Aiken, for appellants. David N. Keast and John L. Ralph, for appellees R. S. Newbold & Son. Geo. P. Hamilton, for appellees Bank of Pittsburg and People's Nat. Bank.

FELL, J. The contest before the auditor was between the general creditors of the Western Asphalt Block & Tile Company, and two creditors, Graham & Son and Byrnes, the appellants, who claim, as pledgees, to have had a lien upon certain of its assets. The evidence of the indebtedness of the corporation to these two creditors is in the form of collateral promissory notes, one of which, after the usual promise to pay, reads as follows: "Having deposited herewith, as collateral security, eight thousand No. 2 asphalt blocks, one lot seventy-five tons, more or less, crude asphalt, and one lot fifteen tons refined asphalt, more or less, now on the company's property at New Castle, Pa.," etc.; and the other: "Having deposited as collateral security for said sum the following property: Sixty thousand asphalt blocks and tiles in our yard at New Castle, Pa., which we agree to save harmless for the payment of this note," etc. The receiver was notified that the appellants claimed to have a lien upon the goods by reason of the pledges. Under an order of court he manufactured the raw material into asphalt blocks, and sold the same, together with the blocks previously manufactured; the terms of the order being that the lien of the pledges, if any, should remain upon the net proceeds of the sale. At the audit of his account the appellants claimed that part of the fund which arose from the sale of the goods alleged to have been pledged to them.. It was not disputed that the debts were valid, and the pledges made in good faith. The goods pledged had been stored in the com-pany's yard before the making of the collateral notes. Neither at that time, nor at any time thereafter, was anything done by either of the parties to carry the pledges into effect. The pledgor did not deliver the goods, nor did the pledgees remove them, or take possession of them, either actually or constructively. The goods were not even separated, marked, or in any way distinguished from the unpledged assets of the company, and they came into the receiver's hands in exactly the same state they were in before the contracts of pledge were made. The finding of the auditor upon the subject is as follows: "It was not shown what number of blocks and what number of tiles were on hand in the yard; nor was it shown that the blocks and tiles so claimed to be hypothecated were marked in any way, or that anything was done to distinguish them from the unpledged assets of the company, or that would have enabled the pledgees, in casethey desired to enforce their pledge, to enter upon the grounds of the company, and designate or distinguish what particular part of the product there stored was covered by

on the 18th of December the brokers reported that they had sold the stock. On the 20th of December the defendant received from the brokers their check on a Philadelphia bank, payable to the order of the defendant bank, for $1,073.75. They then credited the plaintiff's account on their books, and sent the check, with other checks, to Second National Bank of Pittsburg for collection for the account of the defendant bank. On December 24th they received a telegram, which announced the assignment of Taylor & Co., of Philadelphia, and on December 27th the check came back protested. They charged back on the plaintiff's account the amount of the check and protest, and thus reduced the amount of his credit so that his account was overdrawn. They claim that they were relieved of liability for the loss on the Taylor check, and might lawfully charge the plaintiff's account with this loss. The question at once arises, what was the true legal relation between the plaintiff and defendant as to this particular transaction? It is perfect

ly clear that it is not a relation of depositor with the bank. The plaintiff, never having had the check, never deposited it with the defendant. It is true, the defendant credited the plaintiff's account with the amount of the check when they received it. They thus made themselves debtor to him for the amount credited. This they had a perfect right to do, and the plaintiff had a perfect right to accept the credit, and draw against it. When the bank gave the credit to the plaintiff, they, of course, assumed that the check would be paid, as they had a right to do; but does it follow that, when the check was dishonored, several days later, on presentation, the defendant had a lawful right to charge back the loss to the plaintiff's account? As has already been said, if the check had belonged to the plaintiff, and had been deposited by him, the bank would probably not have been chargeable with the commercial negligence which imposes liability on that ground upon such institutions. But it is perfectly clear that such was not the legal relation of the plaintiff and defendant, and hence the rule which would or might have exempted the bank from liability as a consequence of such a relation, has no application, and cannot be invoked by the bank. What, then, was their true legal relation? The bank voluntarily undertook to sell the plaintiff's stock at his request. But in doing so they were not exercising any function which pertained to them as a bank. part of the business of a national bank to engage in the selling of stocks for anybody. It was a transaction outside of their regular banking business, and not within their chartered powers. This being so, when the bank received the stock from the plaintiff, and agreed to sell it, it could only be understood to assume the relation of agent for the plaintiff as principal in that particular transac

It is no

tion.

When it sold the stock, it was acting as his agent, and became subject to whatever rules of law are applicable to that relation. Of course, acting in that capacity, it could sell as any other agent, and would be responsible for its acts as any other agent.

In the case of Bank v. Ashworth, above referred to, the transaction in question was in the line of ordinary banking business, yet the defendant bank was held liable simply because, in collecting their customer's check, they took a cashier's check for the check deposited, instead of taking cash. The action was by a depositor against a bank with which he had deposited a check for $2,622.25 on the Penn Bank. The check was presented next day through the clearing house, but the Penn Bank had then closed its doors, and the check was protested. A few days later the Penn Bank resumed operations, and was open, and doing business, on the day following. On that day the check was again presented, together with some other checks, by the defendant bank, and in exchange for them all a cashier's check of the Penn Bank was given to and received by the defendant bank. The Penn Bank was paying all checks presented. The cashier's check was deposited by the defendant bank with another bank through which it cleared, but on the next business day-which was Monday following the Saturday on which the cashier's check was given-the Penn Bank again closed its doors, and the cashier's check was not paid. On these facts we held the defendant bank responsible to the plaintiff for the loss. Paxson, J., further said: "It is equally clear that, if the collecting bank surrenders the check to the bank upon which it is drawn, and accepts a cashier's check or other obligation in lieu thereof, its liability to its depositor is fixed, as much so as if it had received the cash. It has no right, unless specially authorized to do so, to accept anything in lieu of money,"-citing Bank v. Goodman, 109 Pa. St. 422, 2 Atl. 687, and several other cases. "We need not discuss the question whether the defendant failed to exercise due diligence in not sending the dishonored check through the clearing house on Saturday. That it could have been done, and was done by some other parties, distinctly appears by the evidence, and is not disputed. We think the defendant bank fixed its liability by surrendering the check to the Penn Bank, and accepting the cashier's or teller's check of that bank. As between the defendant and its depositor, this amounted to payment. The plaintiff has neither his check nor his money." With how much more force do these remarks apply to the present case. Here the defendant accepted the check of Taylor & Co. in payment for the stock, when they had no legal right to accept anything but money. They credited the plaintiff's account with the amount of the check, and