delivered the opinion of the court, May 7th 1879.
*204This was a bill to compel the reconveyance of certain real estate. It was filed by the assignee in trust of the estate of Oliver Benner against the assignee in trust of the estate of Christian Ereyer. The legal title to the premises was in the name of the appellee. The bill prayed for a conveyance of the whole land; but on the hearing before the master the claim was narrowed to an undivided moiety thereof. The master sustained the claim and reported accordingly. On exceptions filed to the report, they were sustained and the bill dismissed. This is the alleged error.
The ability of the appellant to sustain his assignment of error depends on his establishing that Ereyer held the legal title to the premises in question in trust for himself and Benner, as tenants in common. In 1868 Benner and Freyer entered into partnership in the business of manufacturing and selling bricks. It continued until the last of August 1872, when Benner made an assignment, for the benefit of his creditors, to the appellant. In October following, Ereyer made an assignment for a similar purpose to the appellee. Benner acquired title to the lands in question in June 1871. The consideration of the conveyance to him was the transfer of four sepai-ate properties. The title to two of these properties was in “ Oliver Benner and Christian Ereyerof the other two one was in Benner and the other in Freyer. In June 1872, Benner, without consideration, conveyed the title thus acquired to one Y erkes, and the latter, on the same day, and without consideration, at the request of Benner, conveyed the same to Freyer, who retained it down to his assignment. No trust -was declared in any of the three deeds. It is neither averred nor proved that the conveyance of this land was made under any agreement that either Benner or Freyer should hold it in trust as to a moiety as tenant in common for the other. The conclusion is sought to be deduced from the other facts and circumstances shown.
It is claimed to follow primarily, from the fact that the title to the lands, transferred as the consideration for the conveyance to Benner, stood in their individual names; that the master has found the lands in question were not purchased and were not necessary for the benefit of the partnership; and that no consideration was paid by Ereyer on the conveyance to him.
Several books of the firm of Benner & Fryer, by the respective entries therein, clearly indicate that they recognised real estate as stock, and from which they received rent. While those entries do not specifically identify any of the premises to which we have referred, yet in the absence of evidence that they referred to others, we think the inference a fair one that these lands were held and treated by them as partnership property. The fact that for the purpose of placing mortgages on the lands, without creating personal liability, they were conveyed to a third person in their trans*205mission from Benner to Freyer, in no wise tends to establish a joint tenancy in them.
Certain it is that after the assignment to the appellant he recognised this as partnership property. In the inventory which he filed he designated it as belonging to the firm of Benner & Freyer. After-wards in a bill filed jointly by the appellant and the appellee, this identical land was averred to be partnership property.
It is unnecessary to refer to many of the authorities cited on the argument. The facts in this case do not admit of their application. This is not the case of a conveyance to Benner & Freyer as tenants in common, and an attempt to show by parol that it is partnership property. It is the case of a conveyance to one by a deed absolute on its face, and an attempt to show by parol that' it was in fact a conveyance to him for the use of himself and his co-partner as tenants in common. Parol evidence is most assuredly competent to rebut that evidence by showing it was owned by them as partnership property. The learned, judge committed no error in dismissing the bill.
Decree affirmed and appeal dismissed at the costs of the appellant.
Sharswood, C. J., and Gordon and Trunkey, JJ., dissented.