text:
    Hull versus County of Luzerne.
    A lessee of coal mines agreed that he should mine a certain quantity of coal each year at a royalty of so much per ton, and, if in any one year he failed to mine said quantity, the royalty on said quantity was to be calculated, the amount paid for the cin-rent year deducted, and interest allowed upon the balance, such interest to be continued until the deficiency upon which the interest was based should have been mined. Held, that the sum thus due by the lessee was due on an “ article of agreement and account bearing interest” within the letter and spirit of the Act of April 29th 1844, and liable to taxation.
    March 10th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1880, No. 94.
    Case stated, wherein the county of Luzerne was plaintiff and William H. Hull defendant.
    The case as stated, was as follows :—
    That the said William H. Hull, with five others, are the owners in fee-simple of a tract of land in Blakely township, Luzerne county. That by articles of agreement bearing date 5th of July 1858, the coal in and upon said tract of land was leased to Abel Barker, Lewis Pughe and Edward Jones, and that by virtue of a deed of assignment bearing date the 12th of April 1864, the right, title and interest of said Barker, Pughe and Jones became vested in the president, managers and company of the Delaware & Hudson Canal Company. That in and by virtue of an article of agreement between the said company, party of the one part, and the above-named William H. Hull (together with the five other parties, tenants in common as aforesaid), parties of the other part, bearing date the 8A of September 1867, it was agreed that the said company should mine and remove from the land of the said Hull and others, at least one hundred thousand tons of coal in each and every subsequent year, and should pay for the same at the rare of sixteen cents per ton for one class or grade of coal, and at the rate of twelve and one-half cents per ton for another class or grade. And it was in the same articles further agreed, “ That if the said canal company, after the year 1869, fail to take out and pay for, in any one year, 100,000 tons, the royalty or rent shall be calculated upon 100,000 tons, the amount paid for the then current year deducted and interest allowed upon the balance, such interest to be continued until the deficiency upon which the interest was based shall have been mined and taken out.” And it is further agreed upon as fact, that the said canal company have, during a portion of the time between the years 1869 and 1875, failed to take out the amount stipulated for, to wit: 100,000 tons each year, and that there is due to the said William D. Hull the sum of about $6000, more or less, as his proportion of the royalties for coal, which should have been taken out of said tract of land by the said company, but which they have not yet taken out, and upon which they have, during the past two years, paid interest to the said defendant, Hull. It is also agreed as being true that in the regular assessment for taxes for the year 1875, in the township of Blakely, the said William H. Hull was assessed (inter alia) upon the sum of $6000 money at interest, the same being the money to be paid to the said Hull as royalty, when the coal shall have been taken out, as stipulated for. And it is further agreed as true that the said tract of land is regularly assessed as coal land, the value of the coal still in the ground being considered in said assessment, and that upon the assessment of $6000, as above, a tax of throe mills for state purposes has been levied, amounting to the sum of $18.' If the court he of the opinion that the said sum (as above stated) of $0000 is liable to assessment for state taxation, then judgment to be entered for the plaintiff. But if not, then judgment to be entered for the defendant.
    The Act of Assembly under which plaintiff claimed the right to collect the tax in question, is that of April 29th 1844, Purd. Dig. 180, pl. 147. The material portions are : “ All personal estate, to wit: * * * all mortgages, money owing by solvent debtors, whether by promissory note, penal or single bill, bond or judgment ; also all articles of agreement and accounts bearing interest, owned or possessed by any person and persons whatsoever, except notes or bills for work and labor done, and bank notes * * * together with all other things now taxable by the laws of this Commonwealth, shall be valued and assessed and subject to taxation, for the purposes in this act mentioned, and for all state and county purposes whatsoever.”
    The court, Hand, A. L. J. delivered the following opinion:

      “ This is a case stated to determine whether $6000 due to the defendant under a coal lease, and drawing interest by the 'terms of the lease, is liable to taxation for state purposes, the land from which the coal is to be taken being also taxed. The money in question is included within the terms of the Act of Assembly making property liable for state taxes. That the real estate is also held taxable for county purposes, which may include in its value the same amount, is no reason why the state should not receive its proper tax on this money at interest. It is possible, the county assessment is too high, but the proper remedy for that is appeal. Even if the case stated presented a clear charge of double taxation (which it does not), the property is no more free from the grasp of the law than real estate and the mortgage upon it, which are held liable to the same tax. Upon the principles recognised in Carbon Iron Co. v. Carbon County, 3 Wright 251, and Lackawanna Iron & Coal Co. v. County of Luzerne, 6 Id. 424, it is adjudged that the defendant is liable for this tax. Judgment is therefore entered for the plaintiff upon the case stated.”
    The defendant took this writ and alleged, that the court erred in this action.

      E. B. Stinger, for plaintiff in error.
    What the plaintiff is seeking to assess and tax, is not “ money owing ” in the sense contemplated by the statute. While the contract uses the term “ interest,” the payments thereby designated are simply a compensation, bonus or penalty for the failure to mine and pay for the stipulated quantity of coal. The use of the word “interest” pre-supposes the existence of a principal sum — an indebtedness out of which it arises.
    The actual indebtedness arises only when the coal is actually mined, and therefore may never exist. For like reasons, defendant should not be taxed up the contract as an “ agreement bearing interest.”

      Thomas H. Atherton and Allan H. Dickson, for defendant in error.
    This court held in Voegtly v. School Directors, 1 Barr 332, that money payable under articles of agreement for the sale of land, and bearing interest, was taxable; and the ground for the decision, as clearly announced by the court, was the clause of the Act of 1831, which made “moneys at interest, and all debts due from solvent debtors ” subject to taxation.
    The liability of the lessees certainly attaches as soon as the deficit occurs, and the sum which is to bear interest, and ultimately to be paid, is definitely ascertained. If the lessors receive the present use, benefit or advantage of the fund, it is taxable as if actually in tbeir hands: Spangler v. York Co., 1 Harris 322, and cases cited.
   The judgment of the Supreme Court was entered March 29th 1880,

Per Curiam.

We affirm this judgment upon the opinion of the learned judge of the court below. We think it very clear, that the sum due by the Delaware and Hudson Canal Company, was due on an “ article of agreement and account bearing interest,” and within as well the letter as the spirit of the Act of 1844.

Judgment affirmed.


source: Caselaw Access Project

author: Mr. Justice Gordon

license: Public Domain

text:
    Kirby versus Cash.
    1. Writs of scire facias to revive the liens of judgments were issued to December Term 1877, within about ten days of five years from their entry. The writs were served on the assignee of one of the defendants a.s terretenant, and there was a return of nihil habet as to the other defendants. On the 7th of January 1879, alias writs of scire facias were issued, and service made upon other terre-tenants. The court below held that as to the terretenants the alias writs were too late. Held, that this was error, and that the service was in time to continue the lien as to them.
    2. The Acts of 1798, and of March 26th 1827, are statutes of limitation ; if the process issues a single day within the time it saves the bar ; with this process the terro-lenant, though not named in it, may be connected by an alias, and the reasonable lime within which this may be done is the statutory period of five years.
    3. Lichty v. Hochstetler, 10 Norris 444, followed.
    March 10th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Bradford county : Of January Term 1880, No. 13.
    Case stated wherein Job P. Kirby, to use, was plaintiff against George P. Cash and Wellington Bramhall, defendants, and H. L. Scott, assignee of George P. Cash, and D. S. Pratt, M. C. Wells, James Bryant and James McIntyre, terre-tenants.
    The case as stated, in substance, was as follows: Job P. Kirby, the plaintiff, held judgments against the original defendants, George P. Cash and W. Bramhall, the same being entered of record in said court, October 12th 1872. Writs of scire facias were issued on the same against the original defendants, and H. L. Scott, assignee of George P. Cash, terre-tenant (the said Scott having some time previously been made, by said Cash, his assignee for the benefit of creditors). -The praecipes for the writs directed that writs of scire facias should not only be issued against “ H. L. Scott, assignee, terre-tenant,” but also “and all other terre-tenants,” and were dated and filed October 2d 1877, and the writs made returable to December Term 1877. To these writs, October 25th 1877, the sheriff made the following return: “ I certify, that on October 18th 1877, I served this scire facias on the within-named H. L¡. Scott, assignee and terre-tenant, by personally making known to him the contents hereof, and I also gave him a true and attested copy of the same. Non est as to George P. Cash and W. Bramhall.”
    On January 7th 1879, alias writs of scire facias issued against George P. Cash, W. Bramhall and H. L. Scott, assignee of George P. Cash, D. S. Pratt, M. C. Wells, James Bryant and James McIntyre, terre-tenants, and all other terre-tenants, the praecipes ordering the same “ to be connected with, and a continuance of, the prosecution of scire facias Nos. 434 and 435, December Term 1877, issued on the original judgments,” the same being made returnable to September Term 1879.
    Service of the same on the terre-tenants, D. S. Pratt, M. C. Wells, James Bryant and James McIntyre, was acknowledged. There was no service on either Cash or Bramhall. On July 9th 1879, upon motion, the court ordered writs of scire facias in each of the above cases to be amended to correspond with the praecipe without prejudice to the terre-tenants. The land of M. C. Wells was conveyed by Cash, July 1st 1873, and the land of James McIntyre, January 9th 1873, and deeds duly recorded of same dates.
    If the court be of opinion that the land of the said terre-tenants, M. C. Wells and James McIntyre, are bound by the above judgments on which the said writs of scire facias were issued, and that they are a lien on the same, then judgment is to be entered in both cases against these terre-tenants, if not, then judgment for them.
    The coust, Morrow, P. J., in an opinion, inter alia, said:—
    “ Here the scire facias was issued ten days before the five years expired, but the alias was not issued until more than nineteen months thereafter. Five or,six terms had intervened. The defendants have not been served at all, but because the scire facias was served on Scott, who was named as'assignee of Cash, and terretenant, it is claimed by the authority of Silverthorn v. Townsend, 1 Wright 263, that the plaintiff had five years in which to prosecute his writ and recover his judgment of revival; and that the alias and service on the other terre-tenants was but a proceeding commenced within the time prescribed by the Act 26th March 1827. The whole recovery in that case is based upon the fact of the service of the writ on the terre-tenant. Judgment might have boon taken against him without an alias. The alias was necessary only to obtain judgment against the defendant. It is true it was not issued until more than seven years had passed after the rendition of the original judgment, but was a prosecution of the first writ. Judge Strong said, ‘ it is to be observed, that the terre-tenant was notified of the first writ before the expiration of the five years from the time when the judgment was first entered. The case therefore differs from Westmoreland Bank v. Rainey, 1 Watts 30, where there was no service at all upon the first writ. An alias five terms thereafter, was held too late in that case, partly, if not principally, because there was a return of nihil to the first. In this case there was a partial service, and the sole purpose of the second writ was to call in the judgment-debtor, that a revival might be adjudged against him, as well as the terre-tenant.’ Judge Agnew stated the case more briefly in Fulton’s Estate, 1 P. F. Smith 209. ‘ In the Westmoreland Bank v. Rainey, 1 Watts 26, it was decided that the issuing of a sci. fa. within five years, but to which the return was nihil, and an alias did not issue for five terms, nor until five years had expired, did not continue the lien. If the return had been tarde venit, or if an effective service on the first writ had been made on tho terre-tenant, as was held by our brother Strong, in Silverthorn v. Townsend, 1 Wright 263, the lapse of time before issuing the alias would not have postponed’.’ Whatever therefore may be said that Westmoreland Bank v. Rainey, was decided under the second section of the Act 26(,h March 1827, and the Act 23d March 1829, the Supreme Court seem to regard it as establishing the rule just stated. This rule, I think, is decisive of this case; for there was no partial nor effective service of the first writ. The case stated, shows that Scott was the assignee of Cash for the benefit of creditors. He was not a purchaser; had no title to the land, except as naked trustee. Calling and serving him as terre-tenant did not place him in that relation. The return to the first writ therefore, was, in effect, nihil. No terre-tenants had been named in it, and it was not until nearly twenty months thereafter that the alias was issued, in which they were named. At that time six years and eight months had elapsed since the judgment was entered, and McIntyre’s deed had been on record five years and five months. Practically, if terre-tenants are not named in the scire facias, the plaintiff must direct the sheriff on whom to serve the writ. Doing neither, until so much time had elapsed, I think the lands of the terre-tenants were discharged from the lien. * * * Silverthorn v. Townsend decided that a plaintiff had five years, as his sci. fa. was sued out, to prosecute it to judgment, qualified, however, with the fact that it was served on tho terre-tenants in time. It exploded the dicta that it must be prosecuted in a year and a day, or it would be held to be an abandonment. But it does not go the length claimed by the plaintiff in this case.
    “And now judgment on the case stated in favor of the terretenants, and against the plaintiff in each case.”
    Kirby took this writ and alleged that the court erred in this action.

      James Wood, for plaintiff in error.
    The first section of the Act of March 26th 1827, will scarcely admit of any other interpretation than, that the bare issuing of a scire facias within five years from the rendition of a judgment, will have the effect to continue the lien thereof for .another period of five years from said issuing. And unless the prosecution of said sci. fa. be manifestly abandoned, an alias, to bring in such parties as had not been previously served, might issue at any time, so that judgment be not delayed beyond said five years. A judgment of revival within five years from the issuing of the sci. fa. is a prosecution with due diligence : Meason’s Estate, 4 Watts 344; Davidson v. Thornton, 7 Barr 128; Silverthorn v. Townsend, 1 Wright 263; Hood & Co.’s Appeal, 1 P. F. Smith 204.

      E. B. Stinger, for defendant in error.
   Mr. Justice Gordon

delivered the opinion of the court, March 22d 1880.

The writs of scire facias, in the cases mentioned in the case stated, were issued to December Term, 1877, within about ten days of five years from their entry. They were served on Cash’s assignee as terre-tenant, and there was a return nihil habet as to the other defendants. On the 7th of January 1879, alias writs were issued and service made upon D. S. Pratt, M. C. Wells,. James Bryant and James McIntyre, terre-tenants.

The learned judge of the court below, following the case of The Westmoreland Bank v. Rainey, 1 Watts 26, held that, as to the terre-tenants, the alias writs were too late, and, so, ordered judgments to be entered for the defendants.

This was erroneous, as being in direct conflict with the case of Lichty v. Hochstettler, 10 Norris 444. In that case the judgment was entered on the 27th of February 1872; a scire facias was issued on the 2d day of February 1877, which was served on the defendant alone. To April Term, 1878, an alias was issued and served on the terre-tenants. We held, reversing the court below, that this service was in time to continue the lien as to these terretenants. After a careful examination of all the authorities, we came to the conclusion “ that the Acts of 1798 and 1827 ai’e statutes of limitation ; that if the process issues a single day within the time it saves the bar; that with this process, though not named in it, the terre-tenant may be connected by an alias, and that the time, the reasonable time, within which this may be done is the statutory period of live years.”

It will be seen that these two cases are strikingly similar, the only point of difference being that, in the case cited, service was made of the first scire facias on the defendant, whilst, in the case in hand, it was made on one of the terre-tenants. This, however, is of no significance; for, as was ruled in In re Meason’s Estate, 4 Watts 341, and, as will also appear by the act itself, the issuing of the scire facias alone continues the lien of the judgment for the period of five years from the date of such issue, and within that period all whom it is intended to charge with that lien may bo brought in and judgment had against them.

The judgment is reversed. And it is ordered that judgments in the two cases mentioned in the case stated be entered against the defendants and in favor of the plaintiff.


author: Mr. Justice Trunkey

text:
    Donovan versus Driscoll.
    In 1846, A. by articles of agreement purchased Iand“of B., paying a part of the purchase-money. A. died intestate in 1851, leaving a wile and nine children, 'file widow continued to live with her unmarried children on the land until i 872, meantime supporting the children, clearing and farming the land, building a house thereon, and paying the taxes. In 1853, she paid B. the balance of the purchase-money, and took a deed for the land to herself which she placed of record. It did not appear that she had ever made any positive denial of her children’s title until in 1873 or 1874. In 1876, the widow conveyed the land under articles of agreement to C., who took possession. In 1874, one of the children of A. brought ejectment against the widow and 0., the ease being tried in 1879, to recover an undivided ninth-part of the land. Held, that no question arose here under the 6th section of the Act of April 22d 1856 ; nor was there sufficient evidence to warrant the submission to the jury to find whether the widow had acquired title under the Statute of Limitations. Held, further, that in view of the circumstances of the ease a conditional verdict was proper requiring plaintiff to pay to the widow the portion of the purchase-money paid by her.
    March 10th 1880.
    Before Sharswood, C. J., Merger, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Bradford county: Of JulyTerm 1879. No. 53.
    Ejectment by Daniel H. Driscoll and Mary his wife, in right of the wife against Ellen Donovan and James Kane, for the undivided ninth part of a certain tract of land.
    At the trial it appeared, that in 1846 Daniel Donovan purchased by articles of agreement, a tract of land from Horace Williston, for $300, of which amount he paid $200, and went into possession. Donovan died intestate, in 1851, leaving a widow and nine minor children. One of these children was Mary Driscoll, in whose behalf this suit was brought, who was born in 1831 or 1832, and married to Driscoll in 1856. Ellen Donovan, the widow, continued to live on the land with her unmarried children until 1872; and when death and marriage had taken her children away, she left the place and went to live with one of her married daughters. In 1853 she had by her own exertions and industry, acquired sufficient money to pay to Williston the balance of the purchase-money due on the land; and having paid the same she took a deed, dated October 19th 1853, which was duly recorded. Of this transaction the plaintiff had actual notice. While she was in possession of the land, the widow by her prudence and toil supported the minor children, cleared all the one hundred acres of land, with the exception of about fifteen acres, built a house thereon, paid the taxes, and as she herself testified: “I never gave them (meaning her children) any interest in it. Uobody had any interest in it but myself.” It did not appear however, that she had made any specific denial of her children’s title until 1873 or 1874, when she had declared to plaintiff and her husband, that the land was hers and they had no right to it. Pour or five years after leaving the place, in April 1876, she sold the property to James Kane, under articles of agreement, for $3000, of which amount Kane had paid $1200, and entered into possession. This suit was brought December 1st 1874, and came on for trial February 13th 187.9. •
    In the general charge the court, Morrow, P. J., inter alia, charged :
    “ The defence set up is, therefore, first, the .Statute of Limitations, for the reason that Mrs. Donovan has been in the undisturbed possession of the land for more than twenty-one years prior to the commencement of this suit, and during all that time claimed it as hers. Second, that the plaintiff cannot recover until after a tender of the purchase-money paid by her; and, third, being the widow of Daniel Donovan, ejectment by an heir cannot be maintained against her.
    “ In answer, we say, [the plaintiff’s right to recover is not barred by the Statute of Limitations, because the suit was commenced within twenty-one years after Mrs. Driscoll arrived at age; and if the jury find that the defendant set up a claim to the land in her own right, and to the exclusion of the heirs of Daniel Donovan, she is not entitled to any portion of the purchase-money paid by her to Williston before suit brought. For, at most, she held the title as trustee for herself and children, and as such could claim the amount expended by her to secure the legal title, that is, if she acknowledged the trusteeship, but denying it, and claiming the property as her own, is a fraud upon the heirs, and she for-f'eits hor right to be repaid, as a condition to entitle the plaintiff to recover.”]
    The verdict was for plaintiff, and after judgment thereon, defendant took this writ and alleged that the court erred in the above portion of the charge included in brackets.

      Evans & Maynard, for plaintiff in error.
    When this suit was brought, December 1st 1874, Mary Driscoll had been in her majority twenty-one years — lacking a few days. Under the law, if no other obstacle prevented, her non-age would not servo her in this caso as a disability, for she bad over ten years after obtaining her majority, within the twenty-one years limitation, to have brought her suit: 2 Bright. Purd. Dig. 928, sect. 4; Henry et al. v. Carson, 9 P. F. Smith 297.
    But it is said that Mrs. Driscoll was married as well as being a minor at the death of hor father, and when her right of entry accrued. The settled doctrine in Pennsylvania is that a party cannot have the benefit of two disabilities: Reimer v. Staber, 8 Harris 458. Coverture is no disability in a case like this since the Married Woman’s Act of 1848 : Sheidle v. Weishlee, 4 Harris 134; Goodyear v. Rumbaugh, 1 Id. 482.
    If Mrs. Donovan took the title in trust for herself and noirs, she, as such trustee, would como within the sixth section of the Act of the 22d April 1856 — and as such trustee, it was a question of fact for the jury to say whether more than five years had elapsed since the alleged fraud was, or might, by due diligence, have been discovered by the plaintiff below and before the bringing of suit. If Mrs. Donovan was a trustee, and by reason of acting in such capacity she could be affected by her alleged fraudulent acts, she certainly comes within the Act mentioned above, and plaintiff cannot recover : 2 Bright. Purd. 930, sect. 6; Hull v. Vanness et al., 13 Wright 462 — 3; McNinch v. Trego et ux., 23 P. F. Smith 52 ; Maul v. Rider, 1 Id. 377; Warfield v. Fox, 3 Id. 382. If the mother did take the title as trustee for herself and children, as such trustee she would have the right to hold the land until the purchase-money advanced was tendered or repaid: Hall v. Vanness, 13 Wright 457.

      H. W. Patrick, for defendant in error.
    As the plaintiff had thirty years to bring her suit in, from the time of her right of entry, which was from the death of her father in 1851, the use of the words, “ because the suit was commenced within twenty-one years after Mrs. Driscoll arrived at age,” was an immaterial error : Williams v. Williams, 10 Casey 312; Linn v. Naglee, 4 Whart. 92; Rogers v. Hall, 4 Watts 359.
    Mrs. Donovan could not claim by inconsistent titles. If she claimed the land as her own under the Statute of Limitations, •which was a question for the jury, it was fairly submitted. She could not claim she was a trustee for the children.
    It was a fraud in Mrs. Donovan to take the title in her own name from Williston, and then claim the land as her own in exclusion of her children, and under such circumstances, if trustee at all, she is such ex maleficio : Parks v. Chadwick, 8 W. & S. 98.
   Mr. Justice Trunkey

delivered the opinion of the court, March 29th 1880,

Daniel Donovan, at the time of his death, was possessed of the land in dispute, holding under an article of agreement on which he had paid part of the purchase-money. He left a widow and nine children, the oldest under nineteen years and the youngest not born. The widow, with her unmarried children, remained on the land, five of them died between the years 1868 and 1872, and, when death and marriages had taken her children away, about five years ago she left and went to live with one of her daughters. By unremitting toil and prudence, she kept her large family of little ones together in their home, and paid the balance owing on the purchase-money of their land. It seems scarcely fitting that the last days of such a mother should be vexed with a lawsuit.

Since the widow left the place, she has contracted for its sale to Kane, one of the defendants; and were it not for that sale and claim of absolute title, this action would not lie : Gourley v. Kinley, 16 P. F. Smith 271. Adverse possession, with such claim, necessitates a settlement of the right before partition can be made in the Orphans’ Court: McMasters v. Carothers, 1 Barr 324. Were the right of the heirs not disputed proceedings for partition could have been had, and, in distribution, the amount of purchase-money due the widow could have been appropriated to her.

Williston, who contracted to sell the land to Daniel Donovan, afterwards conveyed the legal title to Ellen Donovan, she having notice of said contract. That conveyance vested in her precisely the same interest in the land which Williston had, and upon payment to her of the purchase-money owing by the heirs, she would be bound to convey in accord with Williston’s covenants. A purchaser from the vendor, who has sold by articles of agreement, stands in the vendor’s shoes, and is held to a specific performance of he agreement. The arrangement between Mrs. Donovan and Williston was fair and open, her title was recorded, and she was a trustee in the sense that Williston was — that of a vendor bound to convey when the money shall be paid, according to the covenants.

No question arises here under the 6th section of the Act of April 22d 1856 ; nor is there sufficient evidence to warrant submission to the jury to find whether the widow had acquired title under the Statute of Limitations. There is not a particle of testimony that she ever turned her children out of possession, or hindered them from entering on the premises, till within less than five years before the trial. Her possession was that of a widow, who remained in the homestead left by her husband, and managed the property and supported the children. Before the statute would begin to run there must be some plain, decisive and unequivocal act or conduct, amounting to an adverse and wrongful possession or disseisin : Hall v. Mathias, 4 W. & S. 331 ; Iddings v. Cairns, 2 Grant 88.

The court charged, “If t.he jury find that the defendant set up a claim to the land in her own right and to the exclusion of the heirs of Daniel Donovan, she is hot entitled to any portion of the purchase-money paid by her to Williston before suit brought. For, at most she held title as trustee for herself and children, and as such could claim the amount expended by her to secure the legal title, that is if she acknowledged the trusteeship ; but denying it, and claiming the property as her own, it is a fraud upon the heirs, and she forfeits the right to be repaid, as a condition to entitle the plaintiff to recover.” That was error. Mrs. Donovan has the rights of the vendor under the contract for sale, as well as the rights of a widow. Were the heirs of the vendee in possession she could maintain ejectment on her legal title, and it would be no fraud if she claimed to recover absolutely. To defeat such recovery they would set up their equity and entitle themselves to a conditional verdict. So, here the defendants claim to hold absolutely by virtue of the legal title, but the plaintiffs show an equity by which the heirs are entitled to recover on payment of the balance of the purchase-money. The claim to hold absolutely is no more a fraud when advanced by a defendant than a plaintiff. In either case it forfeits no right. It may be made in the utmost sincerity, though groundless.

As a general rule, tender of performance by a vendee on his part, should precede his suit for specific execution of the contract. In view of the circumstances of this case, we are of opinion that, although no tender was made, a conditional verdict and judgment may rightfully be rendered. Mrs. Donovan is not bound to convey till she receives her money due on the contract. That is a debt of the estate, and whenever partition shall be made, it will be paid out of the valuation or proceeds of sale, before distribution, to the party entitled. Hence, if the plaintiffs be required to pay the purchase-money to her, as a condition of recovery, it will be no hardship.

Judgment reversed, and a venire facias de novo awarded.

Mr. Justice Mercur dissented.


text:
    Housenick versus Miller.
    1. An attorney-at-law in Pennsylvania has very extensive power in relation to conducting a suit, but he has no power after judgment to compromise his client’s case without the client’s authority or sanction.
    2. H., who was a judgment-creditor of Y., issued an execution which was stayed by the court upon the application of other creditors. An agreement was then entered into between Y. and AY., whereby the latter received the goods from Y., and undertook to pay the creditors. It was in evidence that the counsel of II. was present at the meetings where this plan was arranged, and assented thereto. H. afterwards employed other counsel, issued an alias execution, and levied on the goods. AV. claimed them, and a feigned issue was framed. Held, that the assent of the counsel of II. was insufficient to bind AV., and it was error to withhold from the jury evidence that she had never assented to the arrangement.
    March 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas, of Luzerne county: Of January Term 1880, No. 244.
    Feigned issue under the Sheriff’s Interpleader Act, wherein G. M. Miller was plaintiff and Mary Housenick defendant. At the trial it appeared that Yost and Borden were pai’tners in the clothing business in Wilkesbarre, and that in April 1877 they dissolved partnership, Borden going out of the business and Yost continuing the same. Mary Housenick held certain notes of Yost, and having brought suit thereon, obtained a judgment, and through her counsel, J. G. Miller, issued a fieri facias, which was returnable to the return-day in January 1878. Certain other creditors of Yost obtained a rule to show cause why the judgment should not be opened, and, pending the rule, the execution was stayed.
    At the instance of Borden, his father-in-law, G. M. Miller, the plaintiff, had various conferences with Yost and these other creditors on the subject of settling their claims. They amounted to some $5500, and for this sum in the aggregate G. M. Miller endorsed to the other creditors certain notes of Yost, and of Yost & Borden, at three, six, nine and twelve months. At the same time, December 14th 1877, G. M. Miller and William C. Yost entered into an agreement in writing, as follows:
    “ Whereas, William O. Yost has this day sold and delivered to G. M. Miller his stock of goods, clothing, material, &c., in his store on east side of Public Square, Wilkesbarre, and has also assigned certain accounts due Wm. C. Yost, and the late firm of Yost & Borden; and whereas, G. M. Miller has this day endorsed the notes of said Yost, and of Yost & Borden, for about $5500, payable in three, six, nine and twelve months. Now it is agreed that an inventory of said goods shall be forthwith taken; that said Miller shall employ said Yost, at reasonable compensation, to can-time at said place of business, and sell and dispose of said stock ; any new stock to be paid for in cash only, upon written direction of said Miller. The proceeds of all such sales shall bo applied to the payment of the notes aforesaid, either directly or through said Miller. Upon the payment of said notes at maturity, or sooner, together with all costs, expenses, rents, &c., for which Miller may become liable, said stock of goods, uncollected accounts, &c., shall be assigned and sold and delivered to Mrs. Mary Housenick or her assigns. All moneys collected by said Miller out of the books and accounts assigned to be applied to the payment of said notes, and any goods sold by Miller to be likewise so applied. In case said Tost fails or refuses to conduct said business in a proper manner, and not satisfactory to said Miller, his employment by said Miller may be terminated. In case of a failure to pay said notes out of the proceeds of said business, and in case said Miller is compelled to wind up said concern, all property, goods, accounts and moneys remaining in hands of said Miller, after payment of notes, costs, expenses, rents, &c., said Miller agrees to deliver and pay over to the said Mary Housenick for her use and benefit.

      “ Witness our hands this 14th of December, a. d. 1877.
    “ Wm. C. Yost.
    “ G. M. Miller.”
    The rule to open the judgment was afterwards discharged, when Mrs. Housenick employed other counsel, and levied upon and sold some of the goods in the clothing store. Miller claimed the goods, when this feigned issue was framed.
    At the trial, before Harding, P. J., the plaintiff, G. M. Miller, testified: “ Borden was my son-in-law. * * * Borden really sold out to Yost; Yost kept the stock and was to pay the debts. The creditors began to push, and the Philadelphia creditors came up and went to Borden, and he came to me. After two or three days dickering, the contract (above set forth) was drawn up by my attorney, Governor Hoyt. * * * I refused to sign it until the execution of Mrs. Housenick was withdrawn. Was in J. G. Miller’s office when I signed it; it was in his office, the counsel of Mrs. Housenick. * * * I told the employees in the store they were working for me; that I would keep them on at the same rate of wages they were receiving. * * * The business was conducted in the name of Yost as agent; goods were purchased in my name or in Yost’s as agent. * * * The sign was not altered. * * * This arrangement lasted until about, I should think, in the latter part of September 1878 ; it is about the time of the date of that last execution; I don’t just recollect the date. On the 17th of September, one of these series of notes became due, and I had no money from the concern to pay it, and I told Mr. Yost that I thought we had better take an inventory and see where we stood; I wanted to know how we were getting along ; and we were taking this inventory, and this execution came out about that time — this second execution of Mrs. Housenick’s ; I gave bond here, and got that stopped for the time being; and the landlord came on with a landlord’s warrant about that time, and cleaned us all out. Then I purchased the goods of the landlord after he bought them; he bought them ; I purchased them again.”
    The defendant, Mrs. Housenick, testified : “ They spoke to me about the sale of goods to Miller, but I said I would agree to anything, provided it did not interfere with my claim, so that that was not interfered with; I would agree to anything, so that it would not impair my claim ; so that that was safe. * * * I was willing to wait on Tost, providing my claim would be safe — if it would not impair my claim ; * * * that is all I know about it; they never consulted me about anything.”
    J. G. Miller, who had been counsel for Mrs. Housenick in the first execution, testified: “ I was opposed to this compromise; I thought Mr. Yost could not carry it out; that he was paying more, as the times were, than he could accomplish — agreeing to pay more to the creditors than he was able to pay — the compromise referred to in that paper; I think he agreed to pay about sixty-eight per cent., and I thought he was not able to pay any such amount; and I proposed, in order to protect Mrs. Housenick’s interests — our execution had been stayed — to have Mr. Lewis, who was the landlord and friend of mine, issue a landlord’s warrant and sell the property out, and have it bought in by Lewis for Mrs. Housenick’s benefit. But Yost thought he would be able to carry the agreement through; and I refused to consent to it, without somebody would be there to see that Mrs. Housenick would be satisfied with it. * * * I met Mrs. Housenick some time "after that down in Yost’s store one day, and we talked over the matter how it had been arranged ; this was in this same store ; I told her I was afraid may be Mr. Yost could not make it go, and he thought he could; and she said she hoped he could, and if he could, it was the best thing that could have been done; that everybody would be fixed then. I told her I was in hopes he would be able to carry it through; that was shortly after this thing occurred — shortly after the contract was made. * * * I don’t know that we went into it fully, but it was spoken of being a compromise made, and that Mr. Yost was going to try to pay off all his creditors. ' It was talked over, and Mrs. Housenick seemed to understand it.”
    In the general charge, the court, inter alia, said :—
    [“ It seemed to be, if the witnesses are to be believed, the desire of Mr. Yost — in which he was joined by Mrs. Housenick — to have some sort of compromise made between his creditors and himself,. whereby he would be able to extricate himself from difficulty.] * *■ * G. M. Miller, the plaintiff here, was not to realize one dollar. The goods were transferred to him until the endorsements should he paid, and then they wore to go to the unfortunate creditor, Mrs. Mary Housenick.
    “ Mr. Yost was left there in possession. [Now, I may say to you, that an innocent creditor in New York, or Philadelphia, or elsewhere, selling goods to Mr. Yost, notwithstanding this transfer has been made, might have pursued him, levied upon his goods, and collected his debt out of him, because, as between the debtor and the innocent creditor, the transfer would have been a fraud in law. But if Gf. M Miller tells the truth, Mrs. Housenick never availed herself of it as a fraud in law. Her agent and counsel entered into it. Before Mr. Miller himself would enter into it, if his testimony is to he believed, that execution of Mrs. Housenick had to be removed out of the way. No matter then, though this business had been conducted for one year, or five years, if the testimony of Jerome Miller, and that of Mr. Miller, the plaintiff, is to be believed, it never could become a fraud in law, so far as Mrs. House-nick was concerned ; because it was the work of her counsel.

      “ The agency of counsel is about as high an agency as wo know of. The counsel of Mrs. Housenick was present when the paper was drawn up — at least when it was executed. The son, if he is to be believed, was present when the understanding was had. The counsel himself says he gave the old lady subsequent knowledge of all that had been done, and she said she hoped it would be for the best.
    “ Now, as between Gf. M. Miller and Mary Housenick, the allegation of a fraud in law could never he legally interposed in behalf of Mrs. Housenick, or her claim. It might he a fraud in law as against innocent creditors, seeing Mr. Yost doing business as he had done before; hut never as to Mrs. Housenick.] Mr. Gr. M. Miller had stipulated that before he endorsed the notes, that execution should be removed out of the way. The counsel of Mrs. Housenick, a man of character and standing at the bar, had entered into the arrangement. Mr. Miller had endorsed the notes. He had taken — and so far as the law was concerned, had a right to fake — into his possession all the goods in the store, and he had stipulated that when the sixty-five cents on the dollar had been paid to the city creditors, the balance of the property should be delivered to Mrs. Mary Housenick. [How any counsel, who was conversant with this transaction, as it has been shown here by the witnesses, could have issued a second execution and raised the claim now put forth here, passes my comprehension. Because, as between Mrs. Housenick and Mr. Miller, a fraud in law could not be alleged. It may have been unfortunate; we have nothing to say about that. If there had been any fraud in this transaction, it was the province of the counsel to have prevented it.] * * * [If you find from any of the testimony fraud connected with this matter, then the verdict should be in favor of the defendant. But if you find the transaction to be as stated by Mr. Jerome Miller, by the production of the papers, and by the whole circumstances, in connection with the case, then your verdict should he in favor of the plaintiff.”]
    The verdict was for plaintiff, and after judgment defendant took this writ alleging that the court erred in the portions of above charge included in brackets.

      L. H. Bennett and F. M. Nichols, for plaintiff in error.
    The attorney for Mrs. Houseniek, in the absence of authority specially •conferred, could not bind his client by his assent to, or acquiescence in, any contract with G. M. Miller, which involved a surrender of her legal rights, incident to her judgment against Yost: Stackhouse et al. v. O’Hara’s Ex’rs., 2 Harris 88; Stokely v. Robinson, 10 Casey 315; The Dollar Savings Bank v. Cobb, 4 Brew. 106; Tompkins et al. v. Woodford, 1 Barr 156; Sarah Willis v. Joseph Willis, Adm’r., 2 Jones 159; Campbell’s Appeal, 5 Casey 401.
    A client is not hound by a ratification of an unauthorized act of his attorney unless it is affirmatively shown that the alleged ratification was preceded by full and complete knowledge on the part of the client of all the material facts and circumstances attending the transaction. This proposition is fully sustained by the following authorities : Pitts. & S. Railroad Co. v. Gazzam, 8 Casey 340; Moore’s Executors v. Patterson, 4 Id. 505; Johann v. Inman, 17 Leg. Int. 190; Cumberland Coal Co. v. Sherman, 30 Barb. 533. There was no testimony whatever to connect Mrs. Houseniek with the assignment or sale to Miller.

      A. H. Dickson and W. H. McCartney, for defendant in error.
    —Mary Houseniek, by not disaffirming the sale, which she said she “knew was going to be made” to Mr. Miller, thereby affirmed it. She could not stand by for nine months waiting to take advantage of the sale, and then come into court and denounce it as a fraud: Filby v. Miller, 1 Casey 264; Bredig v. Dubarry, 14 S. & R. 27 ; Kelsey v. National Bank, 19 P. F. Smith 426.
   Mr. Justice Gordon

delivered the opinion of the court, March 22d 1880.

The learned judge of the court below erred; in several particulars, when he said to the jury: “ No matter, though this business had been conducted for one year, or five years, if the testimony of Jerome Miller, and that of Mr. Miller, the plaintiff, is to be believed, it never could become a fraud in law, so far as Mrs. Houseniek is concerned, because it was the work of her counsel. The agency of counsel is about as high an agency as we know of. The counsel of Mrs. Houseniek was present when the paper was drawn up — at least executed. The son, if he is to be believed, was present when the understanding was had.”

This assumes, 1. That Jerome Miller, as counsel for Mrs. House-nick, assented to the contract of the 14th December, between Gr. M. Miller, the plaintiff below, and W. C. Yost, whereas Mr. Miller says: “ I was opposed to this compromise, aud had a plan of my own to protect Mrs. Houseniek’s rights, as I thought.” 2. It assumes an authority in Jerome Miller, by virtue of his position as defendant’s attorney, to enter into a compromise by which not only her execution should be stayed, but her judgment postponed in the interest of other creditors of Yost. In Stokely v. Robinson, 10 Casey 315, it was held, that an attorney, by virtue of his professional relation, has no power to compromise his client’s case, without the client’s authority or sanction; and this doctrine is supported by the cases of Houston v. Mitchell, 14 S. & R. 307, and Stackhouse v. O’Hara’s Ex’rs., 2 Harris 88. In the latter case it was said, per Coulter, J.: “ An attorney-at-law in Pennsylvania has very extensive power in relation to conducting a suit, but after judgment this plenary power, in a great measure, ceases, excepting as to his power of receiving the amount of the judgment and giving a receipt for it.” 3. An apparent force is given to the fact that the son of Mrs. Ilousenick was present at the execution of the paper in question, and yet there is no evidence that he either assented thereto, or had power so to do; on the other hand his testimony is to the contrary. In fact, it nowhere appears that Mrs. Ilousenick knew anything about the arrangement by which she was to be postponed to the creditors of Yost and Borden, whilst Yost’s goods went to Miller as collateral security for his endorsements. It is said, indeed, that this arrangement was communicated to her by her counsel, and that she assented to it. She, however, denies this, and were there nothing else in this part of the case, yet this denial was sufficient to have required the submission of this question to the jury. Substantially, however, there was no conflict in this testimony. Mr. Miller says, “ We talked the matter over, how it had been arranged; told her I was afraid, maybe Mr. Yost could not make it go; she said she hoped he could, and if he could it would be the best thing that could have been done; that everybody would be fixed then.” Again, when asked to say whether ho did communicate to his client the circumstances attending the sale to Gr. M. Miller, he says, he don’t know that they went into it fully, but that it was spoken of ás a compromise made, and that Yost was going to try to pay off his creditors. What kind of an assent was this to a contract about the making of which she had never been consulted, and to which neither she nor her counsel had ever assented ? And who interested in this contract had ever asked her assent thereto ? And how could this talk between herself and her counsel, and which was riot even communicated to Miller, bind her to a contract she had never even seen ? This evidence proved nothing for the plaintiff, or against the defendant; it was simply of no consequence in one way or the other; and yet, upon it the case is made to turn against the defendant. Hot only so, but from this and other testimony of a like character, the case seemed so plain and obvious to the learned judge who tried it, that he informed the jury, that it passed his comprehension how any counsel, conversant with the transaction, as detailed by the witnesses, could have issued the second execution, and raised the claim set up for the defendant.

We ¿an only say to this, as to most of the balance of the charge, that there was a total misconception of the case, and a consequent mis-trial thereof.

Judgment reversed, and a new venire ordered.


author: Mr. Justice Paxson

text:
    Monroe versus Monroe.
    1. Defendant who"was unable to read, and could simply write his name, signed a note and gave it to plaintiff. The note was given in 1863, and contained a confession of judgment and waiver of exemption. Judgment was entered thereon, and in 1868, and in 1873, defendant signed an amicable scire facias to revive with confessions of judgments of revival. In 1873, a third scire facias to revive issued and defendant was served, when he obtained a rule to show cause why the original judgment should not be opened and he be let into a defence. The rule was made absolute, and at the trial defendant testified that he had no knowledge that the confession of judgment and the waiver of exemption were contained in the original note; that these portions were not read to him when he signed the noté, which he supposed to be simply a promissory note. And further, that he signed it with an understanding that the plaintiff should examine his books to ascertain what defendant owed him, and that the note should stand for whatever balance was fo'und to be due. He also testified that the authority to revive was signed by him without any knowledge of its import and upon an express understanding that the books were to be examined. Held, that while the mere fact of the revivals might have been a circumstance entitled to some consideration with the jury in deciding as to how much weight should be attached to defendant’s testimony, yet if the original judgment was obtained by fraud and misrepresentation, and the subsequent revivals were a continuation of the fraud, they could not add anything, to the validity of the original judgments.
    2. In specifications of error, the points and answers of the court below must be quoted in totidem verbis, or the Supreme Court may disregard them.
    March 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1880, No. 205.
    Feigned issue, wherein Perry Monroe, to use of J. S. Koons, was plaintiff and Henderson Monroe defendant, to try the validity of a judgment-note.

      The note was to stand as a declaration. The defendant pleaded payment with leave, &c.
    It appeared that, on March 2d 1863, Henderson Monroe signed a note for $501.75, payable to Perry Monroe or bearer, with confession of judgment and waiver of inquisition and exemption. Two days thereafter judgment was entered thereon in the name of Perry Monroe, to the use of J. S. Koons. On February 29th 1868 and February 20th 1873, the defendant signed an amicable scire facias to revivo, with confessions of judgment thereon. On the 20th of February 1878, a scire facias to revive the judgment issued, and was served on defendant, when he obtained a rule to show cause why the original judgment should not be opened; which rule was made absolute, and this issue was then framed.
    At the trial, before Harding, P. J., the defendant testified, in substance, as follows: That Koons, the father of the equitable plaintiff, kept a country store, where defendant was in the habit of selling the produce of his farm and making purchases. At the time the note was signed, said Koons sent for defendant for the purpose of making a settlement; that the note was prepared and waiting his signature; that defendant asked how much his indebtedness was, and Koons replied, $501.75; that defendant replied, he thought that was a big bill, and he would like to look over Koons’s books; that the latter said he would go up stairs and find them, but returned, saying he could not find them, and insisted on defendant signing the note. Defendant still urged him to hunt up the books, and Koons went to look for them a second, and even a third, time, and that each time said, he could not find the books; that finally he said to defendant that if he would put his name to the note he would hunt up the books, and, as quick as he found them, ho would let him know, and he would look the account over, and if it was not right he would make it right; that defendant thought the balance largely in excess of what he owed Koons; but, being an ignorant man, and not able to read, and merely able to scratch his name, he had no written memorandum with which to show that Koons was in error; that Koons read over the note to defendant, but only read .the upper portion of it, which made it read like a simple promissory note; that Koons remarked to him, “ I will not ask you to sign a tight note, or one of those cut-throat notes, as they call them: it is nothing but a common note;” that defendant then signed the note, and heard nothing further in regard to it until the amicable scire facias to revive was brought to him, and that ho signed it without the least knowledge of its contents, and upon the renewed assurance that the books of Koons were to be examined and a settlement made, and that he signed the second scire facias under like circumstances; that he was never informed, and never knew, that there was a judgment against him until the third scire facias was served on him. The wife of the defendant corroborated him with respect to the revivals. When Koons’s son came to get the revival, she had protested that the transaction was dishonest, but her husband assured her it was the only way to procure a settlement, and that if he refused to sign it would make Koons mad, and he would never get a settlement.
    Koons’s testimony was in direct conflict with defendant’s. He testified that when the note was given, the books were on the table in front of them, and that they looked over them, ascertained the balance, and made the note accordingly. That the note was read to Monroe in full as it was written, and that he fully comprehended its import. Several witnesses testified that Koons’s reputation for truth was bad.
    The plaintiff submitted the following points, to which are appended the answers of the court.
    1. That if the jury believe that the note was read over to Henderson Monroe before he signed it, there was no fraud in the transaction, and the verdict should be for the plaintiff.
    Ans. Affirmed.
    2. That a contract originally fraudulent may be ratified without any additional consideration; that therefore, if Henderson Monroe signed the renewals as revivals of this judgment, without fraud practiced upon him at the time of signing such revivals, and negligently or carelessly omitted to have the same read to him, he would be estopped from denying the validity of the original judgment.
    Ans. Affirmed.
    3. That if the jury believe that at the time of signing the original note, or at the time of signing either of the renewals of the same, the defendant was aware of their contents, the verdict must be for the plaintiff.
    Ans. Affirmed.
    4. That there is no evidence in the case to show any fraud practiced upon Henderson Monroe at the time of the second renewal; that it was therefore an affirmance and ratification of the original contract.
    Ans. Affirmed, if the jury find the facts to be as stated.
    The defendant submitted the following points, both of which the court affirmed.
    1. That if the jury believe defendant was unable to read the note in evidence, and the plaintiff read it for him, leaving out the confession of judgment in his reading, thereby causing the defendant to sign a note, in ignorance of its true contents, the plaintiff cannot recover in this case, no matter what may be the state of their accounts.
    2. If the jury believe that defendant was induced to sign this note, or confession of judgment, under a mistaken idea of its contents, believing it to be a common promissory note, when in fact it was a judgment note, with waiver, caused by the fraud of William Koons, the party in interest, in reading to him a part only of the note as the whole, defendant would not be prevented from making defence to the note by reason of his signing the revivals, unless he was first made acquainted with the true contents of the original note.
    In the general charge the court, inter alia, said : “ The points which were read in your presence, and which were presented to me by the respective counsel, were affirmed, modified or negatived, as you remember. * * * [This, you will seo, is purely a question of credibility between William Koons, on the one side, and Henderson Monroe on the other; and it is the exclusive province of the jury, not of the court, to pass upon this important feature of the case.] You heard the defendant testify; under the law he is a competent witness ; his credibility is for you ; to some extent liis testimony was corroborated by that of his wife — certainly, as to the amount of the indebtedness existing between them. Again, if after the judgment had been thus given, it laid for five years, as is alleged on tho part of the defendant, and then a renewal was taken by Mr. Koons, or by some one for him, to Henderson Monroe, and the latter signed it, as he said ho did, upon the distinct understanding that the books were to be examined, and the basis of the actual indebtedness ascertained, then tho revival could not have given additional validity to the original debt. You must take these men as they are. You are intelligent, and know the relations and surroundings of people in tho country, situated as these two were. [If, at tho time the second revival was taken, Mr. Monroe was induced to sign it, as he says, that ho might get a statement out of Mr. Koons, the fact that he executed that second revival, gives no additional validity to the original judgment.] The credibility of the witnesses is for you. It is alleged that William Koons was impeached; six or seven witnesses swore upon the stand that liis reputation for truth and veracity was bad; you remember the other questions that were asked them by the counsel representing Mr. Koons. This is one of the methods known to the law of contradicting a witness. Now, is tho credibility of William Koons, as connected with this case, affected by the testimony? That question is entirely for you ; it is not for tho court, even to hint, in relation to it.”
    Verdict for defendant and after judgment thereon, plaintiff took this writ and alleged, that the court erred (fourth and fifth assignments of error) in the portions of the above charge included in brackets. His other three assignments of error were set forth as follows:
    1. That the court erred in not directing the jury that their verdict should be for tho plaintiff.
    2. The court erred in not answering plaintiff’s second point to the jury, either specifically by reading the same, or in the general charge.
    3. That the court erred in not answering plaintiff’s third point, either specifically by reading the same to the jury as a part of the charge, or substantially in the general charge.

      Thomas H. Atherton and Allan H. Dickson, for plaintiff in error.
    The parol evidence was not sufficiently clear to overturn the three written declarations of the defendant, as to the nature of his indebtedness: Todd v. Campbell et al., 8 Casey 250; Faust v. Haas, 23 P. F. Smith 295; Cauffman v. Long, 1 Norris 72.
    Further, the evidence of defendant himself, shows that in regard to the two agreements for renewal, he neither read them, nor asked to have them read; which would be evidence of such gross carelessness as would prevent his attempting to repudiate his contracts : Pennsylvania Railroad Co. v. Shea, 1 Norris 198; Greenfield’s Estate, 2 Harris 496; Stine v. Sherk, 1 W. & S. 195; Dean v. Fuller, 4 Id. 474.
    Even if it had been indubitably established that the original judgment note had been obtained by fraud, yet the defendant was estopped by the subsequent revivals from setting up such fraud as a defence: Pearsoll v. Chapin, 8 Wright 9 ; Seylar v. Carson, 19 P. F. Smith 81; Negley v. Lindsay, 17 Id. 217.
    This court will scan closely the charge of the court below in case points are not specifically answered; and if in the charge of the court these points do not appear to be fully explained to the jury so far as they are pertinent, it is error, for which this court will reverse the judgment: Tenbrook v. Jahke, 27 P. F. Smith 396 ; Slaymaker v. St. John, 8 Wright 9. The reference to plaintiff’s points in the general charge was not sufficient.
    It was the province of the court and not of the jury, to decide the effect of the renewals: Potts v. Wright, 1 Norris 498.

      Q. A. Gates, for defendant in error.
    The second and third assignments of error were not in accordance with Rules 22 and 23 of this court. The points are not quoted in totidem verbis, as required by these rules. The record shows that the plaintiff’s points were answered in the affirmative.
    The court was not asked to direct a verdict for the plaintiff. An omission to charge upon a point where there is no request, is not error: Davis v. Bigler, 12 P. F. Smith 242 ; Id. 482.
   Mr. Justice Paxson

delivered the opinion of the court, May 3d 1880.

There are five assignments of error in this case. We will consider them in their order.

1. The record discloses no request to the court to give a binding instruction to the jury to find a verdict for the plaintiff. And had such request been made it would have been the duty of the court to decline it. The facts were for the jury.

2 and 3. These errors are not properly assigned. The points referred to are not set forth as required by the rules of court. We might well decline to discuss them for this reason. The record show's, however, that they were read to the jury and affirmed. That they were not further referred to by the court in the general charge is not material.

4. This portion of the charge, standing alone, looks like error, but an examination of the whole charge as applied to the facts of the ease, shows that it was not. The defendant, an ignorant man and unable to read, had signed a judgment note in favor of plaintiff for an alleged indebtebness to William Koons, dated March 2d 1863, for $501.75. The note contained a waiver of inquisition and all exemption laws, as well as the declaration that it was “for debt before the 4th day of July 1849.” There was evidence to go to the jury that the note was obtained by fraud ; that at most it was hut a cautionary note ; that the amount due, if anything, was subsequently to be settled by an examination of William Koons’s books, the defendant having kept no account except in his head, and that Koons (the real plaintiff) in reading it to the defendant had suppressed a material part. The judgment entered on this note was revived by amicable scire facias, signed by the defendant in 1868, and again in 1873. After the second revival upon the application of the defendant, the original judgment was opened, and he was let into a defence. The question now under discussion relates to the effect of the revivals upon the original judgments. As to the first revival, the learned judge instructed the jury in his general charge, as follows: “ Again, if after the judgment had been thus given, say for five years, as is alleged on the part of the defendant, and then a renewal was taken by Mr. Koons, or by some one for him, to Henderson Monroe, and the latter signed it, as he said he did, upon the distinct understanding that the books were to be examined and the basis of the actual indebtedness ascertained, then the revival could not have given additional validity to the original debt.” This instruction vras not complained of, and it is referred to now only as it bears upon the charge in relation to the second revival, and which forms the subject of the 4th assignment. The portion of the charge referred to is as follows : “ If at the time the second revival was taken, Mr. Monroe was induced to sign it, as he says, that he might get a statement out of Mr. Koons, the fact that he executed the second revival gives no additional validity to the original judgment.” If the original judgment was obtained by fraud and misrepresentation, and the subsequent revivals were hut a continuation of such fraud and misrepresentations, it is difficult to see how such revivals could add anything to the validity of the original judgment. The mere feet of the revivals might have been a circumstance entitled to some consideration with the jury in deciding as to how much weight should be attached to the defendant’s testimony, but no such point is involved in this assignment. If the defendant’s story is believed the revivals could not add to the validity of the original judgment for the reason that they were obtained by fraud, and fraud vitiates everything it touches.

5. The portion of the charge embraced in this assignment is not error when read in its connection with the general charge. The remark of the court had reference only to the contradictory statements of William Koons on the one side, and Henderson Monroe on the other. As between them it was, as the court stated, purely a question of credibility.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Long versus Caffrey.
    Where a mechanic about to erect a building stipulates in writing with the owner that he will not file a mechanic’s lien, and the owner, to secure the rae°hanie, stipulates that he will insure the building, these are separate and independent covenants, and the mechanic cannot file a lien because the owner did not insure.
    March 11th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent.
    Error to the Court of Common Pleas of Luzerne county: Of January Term 1880, No. 263.
    Scire facias sur mechanics’ lien, issued by E. T. Long against John M. Caffrey. The defendant pleaded “Nil debet.”
    The plaintiff entered into a written agreement to .build a house for defendant, the price to be paid in instalments as' the house progressed. The agreement also contained the following stipulations:
    “And it is further agreed that no mechanic’s or other lien shall be entered against said building by the said Long or the material contractor or workmen. And it is further agreed that if any such lien be entered that the said Long shall pay all costs and fees at his own proper expense, without recourse or claim against said Caffrey on account thereof, and that if said Caffrey is forced to pay the amount of said liens or costs, he shall have the right to recover the amount thereof from said Long. It is further agreed that said Caffrey shall, on completion of said building, insure the same against loss or damage by fire to at least the amount of $1000, and assign the policy of insurance as collateral security for the payment of the last-mentioned $1000 to said Long.”

      It appeared that the instalments had not all been paid, and that the building had not been insured.
    The first point of plaintiff, -which the court, Harding, P. J., refused, was as follows :
    “ That if the jury believe that said Caffrey failed to pay at the time agreed upon, and also failed to insure the property as agreed upon, then he cannot set up the defence that the contractor agreed not to file a lien.”
    The defendant submitted the following point, to which is appended the answer of the court:
    “ That by the agreement annexed to the claim the plaintiff agrees that no mechanic’s or other lien shall be entered against said building by the said Long, and he is therefore estopped from filing a lion, and cannot recover in this case.”
    Ans. “ We affirm that. Your verdict therefore should be in favor of the defendant in this ease.”
    Verdict for defendant; and, after judgment thereon, plaintiff took this writ, and alleged that the court erred in the answers to the above points.

      G. R. Bedford and L. B. Landmesser, for plaintiff in error.
    The defendant’s agreement to pay the price and to insure the building for the benefit of the plaintiff, on the one hand, and the plaintiff’s agreement, on the other, to file no lien, were dependent covenants, and upon the defendant’s default the plaintiff was entitled to file said lien, notwithstanding the agreement: McCrelish v. Churchman, 4 Rawle 26; Wright v. Smyth, 4 W. & S. 533.
    No counsel nor paper-book contra.

   Mr. Justice Mercur

delivered the opinion of the court, May 3d 1880.

This was a scire facias on a meohanie’s lien. The work was done and the materials furnished, for a gross sum, under a written agreement between the parties. The payments were to be made in several instalments, the last one some months after the completion and acceptance of the house. The contract contains this stipulation, “ And it is further agreed, that no mechanic’s or other lien shall be entered against said building by the said Long, or the material, contractor or workmen; and it is further agreed, that if any such lien be entered, that the said Long shall pay all costs and fees at his own proper expense, without recourse or claim against said Caffrey on account thereof; and that if said Caffrey is farced to pay the amount of any of said liens or costs, he shall have the right to recover the amount thereof from said Long.”

There is nothing doubtful or obscure in this clause. It is cleai and specific. Why shall not full effect be given to it ? It is in regard to a subject-matter that the parties had an undoubted right to contract!. The parties recognised it as an important matter in the contract. The defendant wished to be protected against all such liens. The plaintiff expressly agreed not to file one himself, and to protect the defendant against all filed by others. The right of lien which the law would have given to the plaintiff he waived, and estopped himself from asserting, to the prejudice of the defendant.

The contract contains further evidence, that the plaintiff was to rely on personal and collateral security, without lien. Thus it was agreed, that on the completion of the building, the defendant should cause it to be insured to an amount at least equal to the unpaid instalment, and assign the policy to the plaintiff as collateral security therefor. The different parts of the contract are separate and independent covenants, and we see no reason why the one not to file a lien shall not be enforced. The learned judg'e was therefore right in charging that the plaintiff could not recover.

Judgment affirmed.


text:
    Scranton et al. versus Phillips et al.
    1. Where one grants the surface of land and reserves the mines beneath, the implied right of support to the surface, which passes with said grant, may, by apt words in a deed of conveyance he excepted from said grant, and where such exception has been made, the grantor or those who claim through him may mine all the coal, even though by said mining the surface should fall in.
    2. Jones v. Wagner, 16 P. P. Smith 429: Horner v. Watson, 29 Id. 242; and Coleman v. Chadwick, 30 Id., distinguished.
    March 12th 1880.
    Before Sharswood, C. J., Mercur, Gordon, Paxson, Trunkey and Sterrett, JJ. Green, J., absent. ,
    Error to the Court of Common Pleas of Luzerne county :\ Of July Term 1878, No. 210. L
    Case by William J. Phillips and others, trustees of the Calvinistic Methodist Church of Hyde Park, against Seldon T. Scranton and others, heirs and legal representatives of George W. Scranton, deceased, and James H. Gulick, administrator of Joseph Fellows, deceased, for alleged damages to the lot and building of said church, sustained' by the settling of the surface of the lot, occasioned by the mining of coal by the defendants, the Scrantons, who were the lessees of Fellows, the other defendant.
    The substantial portions of the contract, and the material facts, will.be found set forth in the opinion of this court.
    At the trial, before Harding, P. J., the plaintiffs presented the following point, to which is appended the answer of the court:
    “ Under the legal effect of the contract of May 1st 1860, between Fellows aMd Emily E. Preston, and her possession under it, neither Fellows, nor any parties claiming under him by title subsequent thereto, could so miné and remove the coal under or subjacent to the lot as to interfere with or let down the surface, without liability for all damages therefor, and the plaintiffs are entitled to recover.”
    Ans. “ The plaintiffs’ counsel undoubtedly mean by this point that if the defendants took out the coal underlying the lots immediately adjoining the one in question., so that the surface above fell in, and thus caused the church lot to fall in also, because of the want of lateral support, the plaintiffs still would be entitled to recover. In that view we affirm the point.”
    The defendants submitted, inter alia, the following point :
    That if the jury believe, under the evidence, that there was no fall of the roof under the church lot, but that the injury to said lot was caused by a fall of roof in another part of the mine, that affected the lateral support of the church lot, then there can be no ■recovery against the defendants, it being a case of damnum absque injuria.

    The court answered: “That point has been answered in the general charge, though I will again answer it more at length. If the defendants mined out the coal under lots immediately adjacent to that of the plaintiffs, and which belonged to Joseph Fellows, and were leased by him to the defendants, and by reason of such mining this church property was injured, then the plaintiffs will be entitled to recover here. In that view the point is negatived. If, however, like mining had been done by the defendants in a more remote quarter, and of coal to which they had acquired rights through a source other than Joseph Fellows, and the plaintiffs’ lot had been similarly injured, the rule as to lateral support might not be as we now state it. But so far as this particular block of lots is concerned, as indicated by the map offered and received in evidence, the plaintiffs were entitled to support for their lot, not only directly underneath it, but adjacent to it.”
    In the general charge, the court, inter alia, said:
    [“Now, it was clearly the intention of Mr. Fellow’s that the surface of the lot should be fully held and enjoyed by Miss Preston, he reserving to himself all the coal lying below it. That is to say, if reasonable intendment amounts to anything, under the reservation, Mr. Fellows had the right to mine and take out so much of the coal below as was consistent with the enjoyment of the surface by Miss Preston. In other words, he had the right to take out all the coal that could be got, leaving a reasonable support for the surface. Any other construction would-be subversive of the principle long ago grown into a maxim, ‘ sic utere tuo ut alienum non Icedas’ — make use of your own property in such a manner as not to injure that of another. Moreover, it would present the anomalous feature of a grant of an estate in land, accompanied by a reservation totally destructive of - the grant.]
    “ I do not mean to say that covenants cannot be made between a vendor and vendee, under which a right to the surface of a lot may-pass at first, to be succeeded by a right to a mere hole afterwards; all I mean to say is, that the covenants between Mr. Fellows and Miss Preston are not of that character.
    [“ Hence, if you shall be satisfied from the testimony that these defendants so mined and took out the coal underlying the plaintiffs’ lot that the surface fell in, and injury ensued therefrom to both the lot and the church building upon it, there may be a recovery in this action compensatory for that injury.] * * * Several other witnesses who examined the underground condition of things after the fall or crack had occurred, tell us that a pillar of coal was pointed out to them by Mr. Phillips, but whether or not it was under the lot in question they are unable to say of their own knowledge. They went within thirty or forty feet of this pillar in company with Mr. Phillips. [All of them say, however, that the fall or crack in the surface, and in the church- building, was caused by taking out the coal under the surface of this particular lot, and the others immediately adjacent to it, without leaving sufficient supports. We say to you, in this connection, that the plaintiffs were entitled not only to a reasonable and proper support for their estate directly underneath it, but also to a like support from the adjacent lots embraced in the block, of which it formed a part.”]
    The verdict was for plaintiffs for $9740.14, and after judgment thereon, defendants took this writ and alleged that the court erred in- the answers to the above points, and in the portions of the above charge included in brackets.

      Andrew T. McClintock, Alfred Sand, I. J. Sost and Stanley Woodward, for plaintiff's in error.
    For more than half a century coal has been mined through the Lackawanna valley under agreements between the surface owner and the coal owner, by which the former has assumed all risks under ground. Practically the surface rights have been held subservient to the mining rights. These agreements have been held sacred, and it was never supposed that it was not a proper subject-matter of contract. This case.presents for the first time the validity of such a contract. The court ignored the fact that Emily Preston took this surface-lot with a qualified right of support. That qualified right is expressed, 1. In the reservation of “ all the coal, with the exclusive right to mine and rémove the same;’’ 2. The purchase of the lot, “subject to the above reservations and restrictions, for $600;” 3. The “release of Fellows, and his assigns, from any liability from any injury that may result to the surface of said premises from the mining and removal of said coal,” with a quit-claim, &c. There can be no misapprehension of the meaning of these words. The injury now complained of was intended to be released by the parties. It was error in the court to assume that the right to drop the surface was totally destructive of the grant. This court has been disposed to give large liberty and rights to the mining interests of the state : Turner v. Reynolds, 11 Harris 199; Caldwell v. Fulton, 7 Casey 475; Harlan v. Lehigh Coal and Navigation Co., 11 Id. 287; Jones v. Wagner, 16 P. F. Smith 430 ; Horner v. Watson, 29 Id. 250; Coleman v. Chadwick, 30 Id. 81; Brown v. Torrence, 7 Norris 186.
    May 3d 1880.

      Henry W. Palmer and Henry M. Hoyt, for defendants in error.
    Under the contract of 1st May 1860, Joseph Fellows, and all claiming under him, remained under the duty of absolute support for the surface of this lot: Humphries v. Brogden, 12 Q. B. 739; Harris v. Ryding, 5 Mees. & Weis. 60; Smart v. Morton, 5 E. & B. 80; Jones v. Wagner, 16 P. F. Smith 429; Horner v. Watson, 29 Id. 250; Coleman v. Chadwick, 30 Id. 81. There is no qualified right of support. We either have the absolute right of support or no right. There is no middle ground. The construction contended for bv the plaintiffs in error would totally destroy the grant.
   Mr. Justice Mercur

delivered the opinion of the court,

This is an action on the case. It was brought to recover for the damages done to the lot and building of the defendants in error, by reason of the mining of coal beneath, by the plaintiffs in error. The former owned the surface right of the land, the latter all the coal beneath the surface.

Joseph Fellows was the owner of a larger tract of land, of which the lot in question formed a part, underlaid with coal. While thus the owner in fee, on the 1st of May 1860, he, by contract in writing, agreed to sell the lot on which the alleged damage was sustained to Emily E. Preston. After describing the lot, the contract proceeds: “ Excepting and always reserving all the coal beneath the surface of and belonging to said premises, with the exclusive right to the said Joseph Fellows, his representatives and assigns, to mine and remove the same by any subterranean process incident to the business of mining, and also to pass through the said premises by any subterranean passage to mine, and remove the coal from any adjacent lands, without the right, however, to enter upon the surface of said premises for any purpose whatever.” Ten per cent, of the purchase-money was to be paid down, and the residue in ten annual instalments. On the full payment of the purchase-money, Fellows was to execute and deliver a good and sufficient deed in fee-simple, “reserving the coal and privileges above stated, and with a full and unconditional release and discharge for ever, on the part of the said party of the second part, her heirs and assigns, to the party of the first part, his heirs and assigns, from any liability for any injury that inav result to the surface of the said premises from the mining and removal of the said coal; and with a quit-claim on the part of the party of the second part to the party of the first part, his heirs and assigns, of all right, title and interest in and to said coal, and the privilege of mining and removing the same as aforesaid.” She took possession of the lot soon after, and made some payment thereon. Probably, early in 1861, the precise time is not shown, she transferred her interest under the contract to the defendants in error, who erected the church building thereon. They afterwards paid the residue of the purchase-money due on the contract, and on the 27th April 1867, Joseph Fellows conveyed the lot to them, “excepting nevertheless and always reserving all the coal beneath the surface of and belonging to the said premises, with the exclusive right to the said Joseph Fellows, his heirs and assigns, for ever to mine and remove the said coal by any subterranean process,” as stated in the contract. “ To have and to hold the said land subject to the exceptions and reservations as aforesaid.” In the same deed, duly executed by the appellees, they also did thereby grant and convey unto the said Joseph Fellows, his heirs and assigns, the exclusive and indefeasible right to mine and remove the said coal as aforesaid, to have and to hold the same unto the said Fellows, his heirs and assigns, for ever.’'’

On the 30th July 1860, while Emily Preston held the equitable title to the surface, Joseph Fellows by indenture leased to said Scrantons “ all the coal in and under said lot and other lands, for and during such term and period of time as shall be required therefor to mine and remove all said coal.” The lease further stipulated “ the said coal to be mined and taken out by said Scrantons in such manner as they may deem proper and according to their own discretion.” They are not to be responsible for the falling in of said mines or the surface of said lands in any case whatsoever, nor shall they be required to leave pillars or other supports to prevent the falling of the surface, or for any other purpose except under certain lands, including the lot in question, where “ the said Scrantons shall in mining leave such pillars and supports, as shall be deemed by those having experience in mining, to be sufficient to prevent the surface from falling in.” This lease was duly acknowledged at its date, and recorded not long thereafter. In mining under this lease the alleged injury was done to the surface, and the action was brought against both lessor and lessees and their representatives.

The main contention arises under the agreement of 1st May 1860. The learned judge held substantially that it gave to Emily Preston, and those claiming under her, an unqualified right of support to the surface from the owners of the coal beneath. This conclusion is claimed to be sustained by the authority of Jones v. Wagner, 16 P. F. Smith 429; Horner v. Watson, 29 Id. 242, and Coleman v. Chadwick, 30 Id. 81. An examination of these cases shows they were ruled on a state of facts essentially different from those in the present case, and therefore they do not control it. They dealt with presumed and implied rights and duties, in the absence of any specific agreement, as to the measure of care and skill in mining and removing the coal without leaving suitable supports. ITence, in Jones v. Wagner it was said, “contract may devote the whole minerals to the enjoyment of the purchaser without supports if the parties choose.” Horner v. Watson was this: Horner w'as the owner of an upper mine. In excavating his coal he removed the ribs or pillars which supported the roof of his mine, thereby causing the surface above to sink and crack, so that the water therefrom flowed in and through his mine, and into a lower mine of Watson. It was held, the latter could recover from the former for the injury thereby sustained, although 'it resulted from the approved, established and customary practice of mining in that region and without negligence. That the surface could not be destroyed by following a prescription or custom, for a claim destructive of the grant could not be set up by any usage. Here, too, there was no specific agreement as to the manner in which the coal should be removed or the mine supported. The fact that the rights and duties of the parties might have been changed by agreement is clearly implied in that portion of the opinion in which it is said a careful examination of the agreement discloses nothing to take the case out of the rule stated. Coleman v. Chadwick also rules that when the owner of the whole fee, grants the minerals, reserving the surface, his grantee is entitled to so much only of the minerals as he can get without injury to the surface, and a custom contrary to such right would be unreasonable and invalid. There was no express agreement in this case as to the manner in which the mines should be worked, and the fact that the mining had been done according to the usual course and practice, and without any negligence, was held insufficient to protect from liability when there was an omission to leave ribs or pillars of coal or other supports for the surface. I dissented from the judgment in each of these last cases. Yet I recognise them as authority in cases where they apply. They do not apply to a case, like the present, of an express agreement fixing and defining the rights of the parties.

In the contract of 1st May 1860, Fellows agreed to sell “excepting and always reserving” all the coal. Coal in place is land. As early as Comyn v. Wheatley, Cro. Jac. 150, it was held in England that ejectment would lie for a coal mine. The objection that it was beneath the soil was held insufficient to defeat it. This case was cited approvingly in Caldwell v. Fulton, 7 Casey 475. It is there held that minerals beneath the surface of a tract of land, may be conveyed by deed, distinct from the right to the surface. They are a corporeal hereditament, and may thus be severed by conveyance. So in Turner v. Reynolds, 11 Harris 199, it was held that a coal mine may be described and recovered, in an action of ejectment, as land, although the plaintiff did not claim or assert any title to the soil or . surface of the tract, but only to the coal beneath. A mine right, severed from the ownership of the soil, may be regarded as a separate close, and compared to the lower story of a building. The law implies an obligation on his part to keep it in a suitable condition to support the upper stories owned by others, and that the owner of the upper story shall maintain the roof for the protection of those owning below him. There is, however, nothing in this implied duty arid obligation to prevent either from being relieved therefrom by agreement with the other.

The contract with Emily Preston excepts from the agreement to convey a part of the land by clear and apt words. Fellows held the coal as absolutely after the contract was executed as before. It cannot be objected that the exception was as large as the grant and therefore void. The coal is a part of the land that would otherwise have passed it is true. By excepting that, and selling the surface of the land, enough property passed to the vendee to give full effect to the agreement. The court, therefore, erred in saying that the right contended for “ would present the anomalous feature of a grant of an estate in land, accompanied by a reservation totally destructive of the grant:” Whitaker v. Brown, 10 Wright 197.

The exception proceeds “ with the exclusive right to the said Joseph Fellows, his representatives and assigns, to mine and remove the same by any subterranean process incident to the business of mining.” Thus there is a clear recognition that he retains as full property in, and dominion over all the coal, and could transfer the same to his heirs and assigns as if he had not agreed to convey other parts of the land. It is not a mere license to mine, nor a reservation out of something previously granted, but it is an exception out of the grant, so that no title to the coal should pass from him. He excepts “ all,the coal.” There is no limitation as to the time nor the purpose for which it shall be taken. Under no circumstances was it to become the property of Emily Preston. The absolute right of property in the coal remained in Fellows, but he was not at liberty to sink shafts through the surface of the land for the purpose of mining it. He must reach and remove it by subterranean process. If in so doing the surface should be injured, the question arose how and to what extent should he be relieved from liability therefor ? On the payment of the purchase-money, the agreement provides that Fellows shall execute and deliver a deed reserving the coal and privileges stated; but at the same time Emily Preston, for herself, her heirs and assigns, shall give “a full and unconditional release and discharge for ever” to said Fellows, his-heirs and assigns, “from any liability, for any injury that may result to the surface of the said premises from the mining and removal of the said coal, and with a quit claim on her part, her heirs and assigns, of all right, title and interest in and to said coal, and the privilege of mining and removing the same as aforesaid. “As aforesaid” not only refers to the subterranean process; but still more clearly to the absolute “ release and discharge” from all liability for injury to the surface just before mentioned.

Thus, in clear, express and distinct language, it was agreed, the owner of the mine, his heirs and assigns, should be exempt from the very liability now attempted to be fastened on him and his assigns. We see no reason why a person shall not be bound by his agreement to exempt another from liability for damages in working a coal mine, as well as from liability for damages resulting in the performance of any other kind of labor. No rule or policy of law' forbids it. The undoubted intention of the parties to the contract was, that Fellows might mine and remove the coal without any obligation to support the surface or liability in case it fell. It was well said by Justice Blackburn, in Smith v. Darby et al., Law Rep., 7 Q. B. 716, “the man who grants the minerals and reserves the surface is entitled to make any bargain he likes; both parties are just as much at liberty to make a bargain with reference to coals and minerals, as to make a bargain with reference to anything else.” The same rule applies when one grants the surface and retains the minerals. In each case the question is, did the parties agree there should be no obligation in regard to support ?

On the 30th July 1860, while this contract was in force, Fellows executed the lease to the Scrantons. Although called a lease, it Avas virtually a- sale of all the coal, with unlimited time to remove it, with the right at their election to yield it up after the expiration of ten years. It was therein stipulated that the Scrantons should “not be responsible for the falling in of said mines or the surface of said lands, in any case whatsoever,” but in mining they were required to leave such pillars and supports as should be deemed sufficient by those haying experience in mining, to prevent the surface from falling. While the language in this lease differs someAvhat from that contained in the agreement with Emily Preston, yet it is evident the intention Avas to pass to the Scrantons substantially all the right and power which Fellows had to mine and remove the coal without liability for damages. He did not attempt to give them greater immunities than he possessed, but rather less. When the defendants in error aftenvards procured from Emily Preston an assignment of the contract, it gave them full notice of the rights of Fellows, and of his exemption from liability. They acquired her equities only. It is probable that the lease to the Scrantons was then recorded, thus giving to the defendants notice that Fellows had transferred his rights. If not then recorded, it was soon thereafter, and several years before the defendants in error obtained the deed from Fellows. The fact that it omitted the clause releasing Fellows, his heirs and assigns, from all liability for damages from injury arising in mining, could not take from the Scrantons rights which he had previously transferred to them. The defendants in error purchased the interest of Emily Preston in the contract, subject to all the obligations therein imposed on her affecting the title. She could not compel a delivery of the deed without fulfilling her obligation to release and discharge Fellows as therein stated. It was to be done cotemporaneously with his deed, and to be contained in the deed which she covenanted for herself, her heirs and assigns, to make to him. Her covenant was in regard to the enjoyment of a thing in esse. It ran with the land, and the defendants in error, as purchasers from her, took the land subject thereto: Cathcart v. Bowman, 5 Barr 317. It therefore follows that the Scrantons are not liable for the reasonable exercise of any right which they acquired from Fellows, under the terms and conditions of the lease, at a time he possessed that right; and he,cannot in this action be liable to the defendants in error in case he afterwards conveyed to them rights which he had previously granted. In so far as the rulings of the court are contrary to this opinion, the assignments are sustained. We discover no substantial error in the remaining assignments.

Judgment reversed, and a venire facias de novo awarded.