Opinion by
Mr. Justice Green,
There seems to be a serious inconsistency between the general charge of the learned court below and the answer to the plaintiff’s third point. There was considerable testimony to the long continued possession of Daniel Wolf and his children of the land in controversy, and of an ancient possession in common with Jacob Wolf, the plaintiff. It was not at all disputed that Daniel Wolf and his family had lived on, and cultivated, a portion of the entire tract from a time prior to the year 1860, perhaps as far back as 1854. It was also in full proof that during this period all the ordinary acts of ownership, such as plowing, fencing, gathering crops, cutting wood and timber and the usual acts and conduct of the owners of farm and wood land were carried on by Daniel and his family upon the portion of the lands occupied by them. It was also claimed by the defendants that a parol partition of the land was made between Daniel and Jacob in the year 1871, and that a division line was then run, with the consent of both parties, by a surveyor named Briney, and that after that time each of the brothers occupied and cultivated his part of the land up to this division line.' Under all the testimony in the cause bearing upon these features of the case, the court below left the questions arising to the jury, saying to them, “ there is a dispute as to the facts about this by these witnesses before you, and it will be for you, gentlemen, to say, from all the circumstances surrounding the case, which of these parties is entitled to credence, and we say to you that if you believe that Daniel Wolf lived upon that part of this land all this time, and that he helped pay for the land, and that he a,nd Jacob agreed to this amicable partition of land, that is, if Jacob agreed that this line should be run and it was run and established there and recognized by them as the line, then the plaintiff would not be entitled to recover here, that would [629]*629put the title to that part of the property in Daniel Wolf.” Under this portion of the charge the jury would have the whole case with them, and their verdict would settle the questions stated. But the answer of the court to the plaintiff’s third point seems to take the entire subject of the alleged parol partition of the land away from the jury, and directs them practically to disregard the whole of the testimony on that subject. The point was : “ The court is requested to say to the jury that in the absence of any writing between Jacob Wolf and Daniel Wolf as to the title of Daniel Wolf to any part of this land, signed either by Jacob Wolf or his authorized agent, then a parol partition of the lands will vest no title to the land in dispute either in Daniel Wolf or his heirs or legal representatives, and that the testimony given in this case as to a parol partition cannot be submitted for their consideration under the. statute of frauds and perjuries.” This point was affirmed by the court without qualification, and the jury was instructed that if they found a trespass had been committed they should determine what the damages were for the timber carried away. Now the case of McKnight v. Bell, 135 Pa. 358, decides precisely the reverse of this. We there held that if tenants in common, intending to make partition, run and mark upon the ground a division line, and actually take possession of their respective parts in pursuance thereof, and the partition is fully executed between them, the title will vest in severalty. This was the practical effect of what was said in the general charge, but in the answer to the point this was all taken away, and the jury was directed to disregard all the testimony on this subject. Of course the jury could not tell what they were to do in such circumstances, and for that reason we are obliged to sustain the tenth assignment. We held in McKnight v. Bell that the statute of frauds was not impinged by a parol partition of lands between tenants in common.
On the trial Jacob Wolf was examined as a witness in his own behalf. As to matters occurring after the death of his brother Daniel his competency as a witness was not questioned, but he offered and was permitted, under objection and exception, to testify to his original acquisition of title, to the payment of the purchase money, .and to his continued occupancy of the land, all of which occurred long before the death of his [630]*630brother Daniel. The controversy was over Daniel’s title which had devolved upon his children, one of whom was a defendant in the ease. The plaintiff was allowed to testify that he bought the land in 1860, that he paid the whole of the purchase money, that Daniel paid none of it, and that he, Jacob, lived on the land from the time of the purchase to the time of the trial. Now the payment of the purchase money was one of the chief questions in the ease, the defendant contending that Daniel had paid his share of it, and that thereby a resulting trust arose in Daniel’s favor. As a matter of course Jacob Wolf was not competent to testify upon such subjects, as his brother’s mouth was closed by his death, and the title of Daniel was directly in issue. We therefore sustain the fourth specification of error.
An amended declaration was offered and admitted on the trial, under objection and exception. If this were only to correct some mistake in the description of the land, leaving the identity of the land described in the writ with that described in the amendment unimpaired, there would have been no error in allowing it. But in point of fact the land described in the amendment is an entirely different piece of land from that described in the writ. No part of the land described in the writ is contained within the boundaries of the land described in the amendment. It follows that the cause of action described in the writ was a trespass committed by cutting timber on one tract of land, and the cause of action described in the amendment was for cutting timber on another and different tract of land. A trespass on the one tract would not be a trespass on the other tract. In this case the land described in the writ was undoubtedly the land of Jacob, and if the timber had been cut on that tract, a trespass would have been committed, but the land described in the amendment is land claimed by the defendants, and the cutting of timber on that tract would be no trespass as to Jacob if the land belonged to Daniel. The change made by the amendment, therefore, was radical and vital. There was no attempt to prove the cutting of timber on the land described in the writ. All the proof was of a cutting on the land described in the amendment, and if that land belonged to Daniel there was no trespass as to Jacob. Hence the amendment attempted to introduce an entirely new and different cause of action, and should not have been allowed.
[631]*631In Wilhelm’s Appeal, 79 Pa. 120, it was said: “ The true criterion is, as all the authorities show, did the plaintiff so state his cause of action originally as to show that he had a legal right to recover what he subsequently claims.” And, citing from the same opinion: “ The principle has been very accurately and succinctly stated by the present Chief Justice, in Smith v. Bellows, 27 P. F. Smith, 441; ‘the test lies in the cause of action and not the statute of limitations. If the cause of action is the same declared upon, then the writ quoad it was brought in time. If the cause of action was not the same, then the action was not brought for it, and the statute of limitations would fairly apply.’ ” We therefore sustain the eleventh and twelfth assignments of error.
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Opinion by
Mr. Justice Green,
There seems to be a serious inconsistency between the general charge of the learned court below and the answer to the plaintiff’s third point. There was considerable testimony to the long continued possession of Daniel Wolf and his children of the land in controversy, and of an ancient possession in common with Jacob Wolf, the plaintiff. It was not at all disputed that Daniel Wolf and his family had lived on, and cultivated, a portion of the entire tract from a time prior to the year 1860, perhaps as far back as 1854. It was also in full proof that during this period all the ordinary acts of ownership, such as plowing, fencing, gathering crops, cutting wood and timber and the usual acts and conduct of the owners of farm and wood land were carried on by Daniel and his family upon the portion of the lands occupied by them. It was also claimed by the defendants that a parol partition of the land was made between Daniel and Jacob in the year 1871, and that a division line was then run, with the consent of both parties, by a surveyor named Briney, and that after that time each of the brothers occupied and cultivated his part of the land up to this division line.' Under all the testimony in the cause bearing upon these features of the case, the court below left the questions arising to the jury, saying to them, “ there is a dispute as to the facts about this by these witnesses before you, and it will be for you, gentlemen, to say, from all the circumstances surrounding the case, which of these parties is entitled to credence, and we say to you that if you believe that Daniel Wolf lived upon that part of this land all this time, and that he helped pay for the land, and that he a,nd Jacob agreed to this amicable partition of land, that is, if Jacob agreed that this line should be run and it was run and established there and recognized by them as the line, then the plaintiff would not be entitled to recover here, that would [629]*629put the title to that part of the property in Daniel Wolf.” Under this portion of the charge the jury would have the whole case with them, and their verdict would settle the questions stated. But the answer of the court to the plaintiff’s third point seems to take the entire subject of the alleged parol partition of the land away from the jury, and directs them practically to disregard the whole of the testimony on that subject. The point was : “ The court is requested to say to the jury that in the absence of any writing between Jacob Wolf and Daniel Wolf as to the title of Daniel Wolf to any part of this land, signed either by Jacob Wolf or his authorized agent, then a parol partition of the lands will vest no title to the land in dispute either in Daniel Wolf or his heirs or legal representatives, and that the testimony given in this case as to a parol partition cannot be submitted for their consideration under the. statute of frauds and perjuries.” This point was affirmed by the court without qualification, and the jury was instructed that if they found a trespass had been committed they should determine what the damages were for the timber carried away. Now the case of McKnight v. Bell, 135 Pa. 358, decides precisely the reverse of this. We there held that if tenants in common, intending to make partition, run and mark upon the ground a division line, and actually take possession of their respective parts in pursuance thereof, and the partition is fully executed between them, the title will vest in severalty. This was the practical effect of what was said in the general charge, but in the answer to the point this was all taken away, and the jury was directed to disregard all the testimony on this subject. Of course the jury could not tell what they were to do in such circumstances, and for that reason we are obliged to sustain the tenth assignment. We held in McKnight v. Bell that the statute of frauds was not impinged by a parol partition of lands between tenants in common.
On the trial Jacob Wolf was examined as a witness in his own behalf. As to matters occurring after the death of his brother Daniel his competency as a witness was not questioned, but he offered and was permitted, under objection and exception, to testify to his original acquisition of title, to the payment of the purchase money, .and to his continued occupancy of the land, all of which occurred long before the death of his [630]*630brother Daniel. The controversy was over Daniel’s title which had devolved upon his children, one of whom was a defendant in the ease. The plaintiff was allowed to testify that he bought the land in 1860, that he paid the whole of the purchase money, that Daniel paid none of it, and that he, Jacob, lived on the land from the time of the purchase to the time of the trial. Now the payment of the purchase money was one of the chief questions in the ease, the defendant contending that Daniel had paid his share of it, and that thereby a resulting trust arose in Daniel’s favor. As a matter of course Jacob Wolf was not competent to testify upon such subjects, as his brother’s mouth was closed by his death, and the title of Daniel was directly in issue. We therefore sustain the fourth specification of error.
An amended declaration was offered and admitted on the trial, under objection and exception. If this were only to correct some mistake in the description of the land, leaving the identity of the land described in the writ with that described in the amendment unimpaired, there would have been no error in allowing it. But in point of fact the land described in the amendment is an entirely different piece of land from that described in the writ. No part of the land described in the writ is contained within the boundaries of the land described in the amendment. It follows that the cause of action described in the writ was a trespass committed by cutting timber on one tract of land, and the cause of action described in the amendment was for cutting timber on another and different tract of land. A trespass on the one tract would not be a trespass on the other tract. In this case the land described in the writ was undoubtedly the land of Jacob, and if the timber had been cut on that tract, a trespass would have been committed, but the land described in the amendment is land claimed by the defendants, and the cutting of timber on that tract would be no trespass as to Jacob if the land belonged to Daniel. The change made by the amendment, therefore, was radical and vital. There was no attempt to prove the cutting of timber on the land described in the writ. All the proof was of a cutting on the land described in the amendment, and if that land belonged to Daniel there was no trespass as to Jacob. Hence the amendment attempted to introduce an entirely new and different cause of action, and should not have been allowed.
[631]*631In Wilhelm’s Appeal, 79 Pa. 120, it was said: “ The true criterion is, as all the authorities show, did the plaintiff so state his cause of action originally as to show that he had a legal right to recover what he subsequently claims.” And, citing from the same opinion: “ The principle has been very accurately and succinctly stated by the present Chief Justice, in Smith v. Bellows, 27 P. F. Smith, 441; ‘the test lies in the cause of action and not the statute of limitations. If the cause of action is the same declared upon, then the writ quoad it was brought in time. If the cause of action was not the same, then the action was not brought for it, and the statute of limitations would fairly apply.’ ” We therefore sustain the eleventh and twelfth assignments of error.
The witness Slaymaker was simply examined in chief to prove that he had made a draft of the land described in the deed from Gilpin and Johnston to Jacob Wolf. He did not say, and was not asked to say, whether the land in controversy was any part of the land described in the draft. Hence it was not proper cross-examination to inquire of him on that subject. The first assignment is not sustained.
The defendants in the action were Isaiah Wolf and George Crissman. On the trial, evidence was given of an act of cutting timber by another person named Merele Wolf. His name was not discovered till after the evidence was in, and then the defendant mo'ved to strike out this testimony, but the court refused to strike it out, on the ground that it might be followed by evidence showing that he was acting for the defendants or by their direction. We have not been referred to any such testimony, and therefore think that the application to strike out the testimony of Painter in reference to acts done by this person should have been granted, and we sustain the second assignment.
We do not think the objection to the Painter draft was sufficient to warrant its exclusion, and therefore we do not sustain the third specification.
The witness Lee Wolf testified to a cutting of timber by the defendants in the spring of 1891, which was before the action was brought. He also testified to seeing some timber hauled away from the land after the action was brought, and this was competent under our ruling in Trout v. Kennedy, 47 Pa. 387. We therefore do not sustain the fifth specification.
[632]*632We do not sustain the sixth and ninth specifications as the testimony of A. Gr. Wolf, which was admitted under exception, was immediately followed by that of the persons as to whom he testified, who clearly established that they were working under Jacob Wolf, and the cutting, being an act such as an owner would perform, was for the consideration of the jury along with all the other pertinent testimony.
We sustain the seventh assignment because the offer of proof was sufficient, and if the testimony when received supported the offer, it was competent. It would not be possible to know in advance whether any part of it might be objectionable as resting in parol and contradictory of a written agreement. After the part of the proof which was in writing was admitted, it would become possible to know whether the part of it which was verbal was contrary to the rule which rejects verbal testimony to alter or contradict a writing.
We do not sustain the eighth specification because what the court said as to the effect of the deed was strictly.correct, if there were “ no showing on the part of the defendant that the land was not the land of Jacob Wolf,” as is stated by way of qualification in the concluding part of the clause of the charge assigned for error. We cannot infer from anything contained in this extract from the charge that the court intended to deny the very familiar rule, that the plaintiff in trespass quare clausum fregit must not only show title, but actual possession.
Judgment reversed and new venire awarded.