text:
      Court of Common Pleas, Lebanon County,

      October 21st, 1858.
    Coleman v. Coleman et al.
    Tenants in common of mines are liable to account to each, other both at common law, under the statute of 4 Anne, c. 16, and under section 24 of the act of 25th April, 1850.
    Talcing ore from the surface of the earth or shallow pits is as much mining within the meaning of the law, as if' it were dug from deep mines.
    Tenants in common of an ore-bank can demand an account torn their co-tenants, whenever they take more than their share of ore; they need not wait until the whole bank is exhausted. They are liable to each other for ore used by themselves as well as for that sold. The fact that by agreement each tenant in common was given his own ore-pit does not debar them from demanding an account from each other. The fact that all parties continued to use these ore-banks for a long period of years without asking an account will not preclude any of them from demanding it. Any presumption arising from this long acquiescence may be rebutted by the fact that the respondent is now using and selling much larger quantities of ore than • formerly.
   By the Court.

The plaintiff has filed his bill on the equity side of this court, demanding that an account be rendered by the defendants of certain iron and copper ore sold and used by them from lands of which they are tenants in common.

The bill and various answers as filed present no disputed facts, but several important legal questions are raised for the consideration of the court.

The ores were taken from Cornwall Ore-Banks and Mine-Hills,” situate in this county; twenty-five ninety-sixth parts of which are owned by the plaintiffs, a like quantity by William Coleman, thirty ninety-sixth parts by Robert and G. Dawson Coleman, and sixteen ninety-sixth parts by Edward B. and Clement B. Grubb, all holding as tenants in common.

William Coleman presents no answer, and as to him the bill must be taken pro confesso. He is probably made a party for mere form. Messrs. Grubbs file a full answer, raising several legal objections, but decline taking any part on the hearing, averring that to them it is a matter of indifference, as they will gain more than lose by an account, and if on the whole it is lawful are willing that one be taken. The matter is mainly resisted by Messrs. Robert and G. Dawson Coleman. It becomes our duty to decide the legal rights of all the parties.

Peter Grubb was originally the sole owner of Cornwall Ore-Banks and Mine-Hills,” and of several establishments in their vicinity, where the ore was manufactured into iron.

The property descended in unequal parts to his two sons, Curtis and Peter; the former of whom conveyed to his son Peter, one undivided sixth part of the mine-hills, together with certain portions of the real estate. Peter Grubb subsequently sold his interest in the ore-banks, together with certain portions of the real estate, to Robert Coleman, reserving the right to take at all times sufficient quantity of iron ore for the supply of one furnace, at the election of the said Peter Grubb, Jr., his heirs and assigns forever. In process of time Robert Coleman became seized of four other sixth parts of these ore-banks, leaving to the descendants of the Messrs. Grubbs, the original owners, but one-sixth part thereof. The Messrs. Coleman, parties in these proceedings, deduce their title from Robert Coleman, and the Messrs. Grubbs from the original proprietors.

In the year 1786 an attempt was made to have partition of the several estates held in common by Robert Coleman and Messrs. Grubbs, including “Cornwall Ore-Banks and Mine-Hills,” but it was found impossible to divide the ore-banks without doing great injustice to some of the parties, as all of the property was dependent on them for a supply of ore; it was therefore agreed that they should remain together and undivided as a tenancy in common, and a method of working the ore from the hills was agreed on, “that neither of the said parties, their agents, or workmen, shall interfere or interrupt either of the other parties at any mine-hole by them opened and occupied for the purpose of raising iron ore.” ' It also appears that Robert Coleman and Messrs. Grubbs and their descendants continued to use the ore-banks and mine-hills as appurtenant to their respective estates, so parted and divided in 1787, down to a comparatively recent period, without any interruption or hindrance, or either of them being called on to account. Latterly, however, several of the respective owners have built new furnaces on other ground than that to which the ore-banks were originally held as appurtenant, and from the modern method of smelting iron with anthracite coal, immense quantities of ore is used, probably more per week by each anthracite furnace than monthly under the former system. Besides, it is conceded that Messrs. Robert and G. D. Coleman have for some years past made extensive sales of ore to other manufacturers of iron, a practice never previously pursued by any of the holders of these banks, and which the other tenants in common refuse to follow, deeming it highly inexpedient.

The Messrs. Grubbs also aver that under the reservation contained in the deed from Peter Grubb to Robert Coleman, of the right to take ore from the hills for one furnace, large quantities have been removed and consumed by Robison & Brooke, the present holders of that right, by assignment from the descendants of Peter Grubb, and that the ore so taken is a proper charge against those claiming under Robert Coleman the elder.

On the 13th of March, 1849, Robert and G. Dawson Coleman entered into an article of agreement with Robert W. and William Coleman, by which they respectively agreed to account to each other, on the 1st of April of each year, for five years, next ensuing, for all ores taken, used, or sold by them respectively, at the rate and price of fifty cents per ton, the estimate to be made against each, according to the proportion of their respective shares. Under this agreement, Robert and G. D. Coleman say that they have accounted for all ores taken or sold by them from the 1st day of April, 1848, to the 1st day of January, 1851, but no account has been taken since; and they further aver that when the agreement was made, it was understood between the parties thereto, that all claims for ores mined, taken, and carried away prior to the 1st of April, 1848, was abandoned. They deny all liability to account, except under that article of agreement.

The following objections have been raised in substance against the right of the plaintiff to sustain his bill, and the legal liability of the defendants to account.

First. Tenants in common are not liable to account to each other by the common law.

Second. There is no allegation that these are mines, or the business as conducted mining, and the description of the method of obtaining the ore shows that they are not mines, and that it is not procured by mining.

Third. The case does not come within the 27th section of the stat. 4 Anne, chap. 16, nor the 24th section of the act of 25th of April, 1850.

Fourth. It is not alleged that the defendants or any of them have taken more than their just share of the whole mass of ore, and if they have not, they cannot be called on to account, but the plaintiff’s remedy is to help himself, and sell and dispose of the ore until the shares are equalized.

Fifth. Even if liable for the ore sold, the defendants cannot be asked to account for what they themselves used.

Sixth. The agreement of 1787 precludes all idea of accounting to each other; shows that they did not hold or work the mine-hills as tenants in common, but each was to have his separate mine-hole, from which he might take ad libitum, and for the ore so removed, not to be accountable to any one.

Seventh. The deposit of ore in these hills is, for all practical purposes, inexhaustible, and therefore it cannot be shown for generations to come, that either part owner has used more than his share, and until he does, he cannot be required to account under either the English statute or our own act of Assembly. And,

Fighth. That the long user of these ore-banks in the manner practiced by the respective owners, from 1787 clown to the time of filing this bill, without any demand of an account, is conclusive against the plaintiff’s right, and he is therefore precluded from asking it now.

We find it laid down in works of high anthority, that by the common law, one tenant in common had no remedy, by account or otherwise, against his co-tenant, who had taken all the profits of the land, or enjoyed the entire use of personal chattels (Coke’s Lit. 199, b.; Thomas’s Coke, vol. i, p. 906). If ejected from land, or prevented from taking possession by his co-tenant, he has his remedy by writ of ejedione firmce, and if of personal chattels, by retaking them again as soon as he can have opportunity (Co. Lit. 200, a.). But if one destroy the chattel, the other can maintain an action against him (200 b.). Or if he commit waste on the land, an action of waste lieth by his companion (see Thomas’s Coke, pp. 908, 9, 10, and 11, of top paging). But if one joint tenant or tenant in common make the other his bailiff or receiver of his moiety, he shall have account (Co. Lit. 206; see also 172 a.; Thomas’s Coke, vol. iii, p. 376).

If one tenant in common destroy the corner-stones of land, the other shall have an action; so if he corrupt a river and render it unfit for use; so of a folding, if the other disturb it (C. Lit. 200 b.), and after a recovery in ejectment against his co-tenant, he shall have trespass for mesne profits (Wilson, 113). So he may not maintain waste for an injury (8 Term. Rep. 145; 1 Taunt. 247). But if timber be cut and sold, he can recover his share of the value (8 T. R. 145; 1 Taunt. 247). Although the weight of authority appears to be as above stated at law, yet in equity we find them held to account in some cases. Thus in Skinner, 230, Lord Keeper North says: “Four joint owners of a ship; three resolve to make a voyage, the fourth will not; the course is to go into the admiralty and there give security to answer for the ship, and they shall be discharged of the other. If the ship be lost, he shall not have his part unless he expressly prohibit the voyage, but if she return, he shall have an account of what she received, for it shall be intended the voyage was with his consent, without an express prohibition proved.” If four tenants in common of land, and one stock the land and manage it, the rest shall have an account of the profits, and if a loss come, they shall bear a part decided 37 Chas. II, consequently not under the statute (see also, 1 Levinz, 219).

We are inclined to believe that equity has generally compelled an account between tenants in common of mines, both because mining is a species of trade, and also because the common property, when taken from the earth, is used or disposed of by the taker. If one tenant in common sell trees growing on the property, the other shall have an action for his half of their value (8 T. R. 145; 1 Taunt. 240, already cited; also 25 Wend. 409; 9 Pick. 34). Why shall he not have a like action for ore dug from the mine and sold ? If one tenant in common of a dovecote destroy all the doves, the other shall have trover, and if instead of destroying, he convert them to his own use, consume them, is his co-tenant without remedy? If one tenant in common extract the ore from the mine, or convey it from the surface of the earth to his furnace and convert it into iron, we can see no reason why the other shall not have a remedy to recover his half of its value, as to him it is destroyed, unless indeed he became a tenant in common of the iron made, a position the manufacturer will scarcely assume.

Although the Court of Chancery has refused an account by one tenant in common against another for cutting timber unless an injunction is prayed to stay waste, yet it is held that they will for ore taken. Lord Ilardwicke says: “ The courts always distinguish between digging of mines and cutting of timber, because the digging of mines is a sort of trade, and there are many cases where this court will decree an account of ore taken, when in any other tort or wrong it has refused relief” (Ambler, 56). The same casé in 3 Atk. 264. The same principle is asserted of a colliery, 2 Atk. 630; 1 Ves. Sr. 233. These cases are approved in Parrot v. Palmer (3 Mylne & Keene, 632, 106 and 663, 340). See also Colyer on Mines, pp. 127 to 131. In 1 Jacob & Walker, 301, 2, mining is said to be a species of trade, and when it cannot be carried on advantageously by all the tenants in common, the court will appoint a receiver. The cases in Ambler and 3d Atk. are also approved by the chancellor in this case. But the position is assumed that the business of obtaining this ore is not mining, as it is not conducted under ground, but on the surface. It has been held in England under their tax laws, that a slate work is not a mine (2 East, 164). So of a lime work (1 East, 534). But where a shaft was sunk and limestone worked out under ground, held to be a mine (2 Barn. & Adol. 65; 22 Eng. C. L. 24). So where a peculiar clay was obtained in like manner, held to be a clay mine (3 Barn. & Adol. 424; 23 Eng. C. L. 110). And it is said that the expense of sinking a shaft will much exceed £5000 (7 Exchequer, 180).

In coming to these conclusions, the English courts doubtless had in view the customs of their country. Few, if any, of their valuable minerals are now found on the surface of the earth, and probably never were, but are obtained from great depths and are generally under the water-level. On the contrary, in most parts of the United States, the iron ore is obtained on or near the surface, above the water-level, and is worked by sunlight. Such is also the case in regard to coal in many places, whilst in others shafts are sunk to a considérable depth, and the mineral obtained by drifting, as mines are worked in England. But few, if any, of these shafts cost £5000 to sink. Our idea of mining is derived from our own habits and customs, hence our most approved lexicographer, Webster, says that a mine is “a pit or excavation in the earth, from which metallic ores, mineral substances and other fossil bodies are taken by digging.” A miner is one who digs for metals and other fossils and minerals, “a matrix or vein of metals,” “a body destitute of organization and which naturally exists within the earth or at its surface.” Bouvier, in his Law Dictionary, defines a mine, “an excavation made for obtaining minerals from the bowels of the earth.” And Jacob’s Law Dictionary, by Tomlin, says, that “ mines are quarries or places whereout anything is dug,” and mineral, “ anything that grows in mines and contains metals.” Barber’s Law Dictionary says, “ It is held to have the sense of quarry.”

Such is the sense and meaning to the woi’d mine and mineral by Parke, B., in 14 Mees. & Wels., 872, and by Dr. Johnson; in his Dictionary. We have dwelt more particularly on this branch of the case, because the counsel seemed to consider that much depended on establishing that taking the ore from the .mine-holes described in the bill and answers was not mining within the decisions which require an account. It certainly is not mining under the English tax laws; but to us it appears that it clearly is such, under the decisions requiring an account between tenants in common. The foundation of the rule is, that the joint property is taken by one tenant in common and converted to his own use, either by a sale of the material, or its conversion into another substance by manufacturing. The ancestors of the present parties always designated the property held in common as ore-banks and mine-hills, and the separate occupancy of each tenant is, in the proceeding in partition, and has probably ever since been called “mine-holes.” It is very true that such an appellation would not change their nature, but it tends to show that the parties understood them to be iron mines.

The statute of 4 ’Anne, ch. 16, § 27, provides in substance that actions of account shall and may be brought and maintained by one joint tenant and tenant in common, his executors and administrators, against the other as bailiff, for receiving more than comes to his just share and proportion, and against the executor and administrator of such joint tenant in common. This statute is decided to be in force in our State (3 Binn. 625, Report of the the Judges; Griffith v. Willing et al., Idem, 317; Irvine v. Hanlen, 10 S. & R. 220-1).

We take this to be a remedial statute, and therefore it should be liberally construed. The mischief existing before its passage was, that whoever could first obtain possession of a personal chattel would retain it until his co-tenant could, by some chance, get his hands on it. Whoever could first possess himself of a field would cultivate it to the exclusion of his co-tenant, until the latter could, by chance, find it unoccupied, when he would seize and hold a similar possession, neither being accountable to the other for any profits. This was all manifestly unjust, and led to a constant scrambling after possession. The statute was intended to furnish an ample remedy. Soon after its passage it was decided that you could not declare against the party as a general bailiff, but he must be held specially under the act, was merely a special bailiff (Willis, 208; Viner’s Abr., vol. xiv, pp. 513 and 514). Such is also the rule in American courts (12 Mass. 149 to 154; 10 Sergt. & Rawle, 219). But these cases go merely to the form of the action; the right to maintain it in some form has never been questioned. In some particulars the statute has received a liberal construction, being decided to extend as well to personal property as to real estate. In others it has, as we conceive, been construed over strictly by the English courts; has been, in fact, frittered away, so as to confer but little, if any, benefit in ordinary cases. In Henderson v. Eason (9 Law and Equity Reports, 337), it is held, that if one tenant in cojnmon occupy the land, farm it as his own, and take the whole share of the produce for his own benefit, his co-tenant cannot maintain an action of account under the statute, by reason of the former having taken more than his just share and proportion. That the statute only applies where he has received more than his just share from others. The decisions amount to this, if one part-owner of a ship take it away and detain it for a whole year, or more, making great profits by its use, he cannot be called on by his co-tenants to account for such use. If he hire it to another he may. If one tenant in common of a farm enter upon it, and cultivate every field, by reason of which no part is left to his co-tenants, he cannot be asked to account. If he rent it out, payable either in money or kind, he must pay each co-tenant his portion. It is held in Beer v. Beer, in the same book, p. 468, that where tenants in common lease their land, and after the death of one the other receive more of the rent than his share, the executors of the deceased can recover in account. In Brigham v. Eveleth (9 Mass. 538), it is held that where two were joint owners of a machine, and one used it for a considerable period, that assumpsit lay for its use. So in Jones v. Harrodson, where one part-owner in possession of a ship made a profit by it, held, that the other could recover his part in assumpsit (9 Mass. 540, in note). The court there say, that the statute of Anne is a remedial one, and ought to receive a liberal construction; and so Lord Holt declared soon after its passage. It was intended to give a remedy which did not exist at common law. Again in 3 Pick. 420, the part-owner of a ship was permitted to recover for a share of the profits made while it was in the occupancy of the other part-owner. In 9 Pick. 34, it is decided that if one tenant in common of a wood cut off and sell a portion, his co-tenant can maintain assumpsit for money had and received.

In 1 McMullen’s Chancery Reports, pp. 69, 75, 298 and 475, it is held that an occupying tenant in common is not bound to account for the profits of land rendered productive by his labor. He is entitled to that which was cleared and cultivated when he toolc possession. In our own State (Griffith v. Willing et al., 3 Binn. 317), it is said that partners in trade can. have account render against each other by the common law, and tenants in common by virtue of the statute of Anne, and that is applied to a ship used by one of the part-owners. In Steffen v. Hartzel, one tenant in common of a limekiln was permitted to recover against the other, who had the sole occupancy, and Judge Huston says that account render is the proper remedy (5 Whar. 448). In Anderson v. Greble (1 Ash, 136), it is held by Judge King that one tenant in common is bound to account to the other for profits made out of the land, under the statute of Anne, and is entitled to a deduction for taxes, repairs, etc. Very many other decisions might be cited both in England and in this country to the same effect. I am unable to see the difference between the entire occupancy of a ship, a horse, or a machine, by one of several joint-owners, and that of a farm, provided the possession of the occupant be equally exclusive. If possession be taken of one of several fields, and a like quantity and quality of the improved land be left for the other co-tenants, the failure to take possession and use the property may arise from the default of the other part-owner. But where the possession is sole and entire, of the whole farm, I cannot understand why the person thus deriving the whole benefit from the joint property, should not be as well liable as if he had leased the land for a portion of the crop, or for money, to a third person. Or why he shall not be held to account when he reaps the profits with his own hand, as well as if he receives it through the hand of the tenant. In neither case is he held liable under the statute for any more than the sum actually received, nor until the amount is known, whilst a bailiff at common law is answerable for all that he might have received. Yet in 2 Phillips, 127, McMahan v. Bramhill, it is said in chancery that occupancy by one of several tenants in common of an estate, unaccompanied by exclusion, will not make him liable for rent to his co-tenant.

We are not called on to decide, in the present case, what the law would be if these ore-banks were a farm, as the law is clearly settled in England to be different as to mines. Bainbridge, in his “Law of Mines,” says (pp. 70 and 71), tenants in common can work mines together, or either can refuse to work, and in that case have an account of the profits; again, at pages 403-4, where a mining concern was held as land, either of the owners might terminate the joint working, and if one continued to work he would be liable to account to the other (4 Younge, 42). And in mining transactions the court will decree an account even in partnerships, without decreeing a dissolution, which is contrary to the general rule (Bainbridge, 401, 402, 403; Colver on Mines, pages 127 to 131).

We are therefore of opinion that tenants in common of land containing mines, or deposits of minerals, can be obliged to account to each other for such minerals used or sold, either under the statute of Anne or independent of the statute.

We will next proceed to consider the effect of the 24th section of the act of April 25th, 1850.

That act declares: “ In all cases in which any coal or iron ore mines, or minerals, have been, or shall be held by two or more persons as tenants in common, and coal or iron, or other mineral, has been or shall be taken from the same, by any one or more of said tenants respectively, it shall be lawful for any one of said tenants in common to apply by bill or petition in equity, praying that an account may be decreed and taken of all coal, iron ore, or other mineral, taken by said tenants respectively.” The act then prescribes the method to be pursued by the court to compel an account, and that they shall cause to be ascertained the quantity and value of the said coal, iron ore, or other mineral, so taken respectively by the respective parties, and the sum that may be equitably due, by and from, and to them, respectively, according to their respective interests in the lands,” etc., etc. This statute has not, as yet, received a judicial construction by the superior court of our State, except so far as it is noticed by Justice Woodward in his opinion delivered when the titles of the present parties were before the Supreme Court, in 7 Harris, 110, 111, and 112; it is there declared that the parties can, at anytime, compel an account, under the act of Assembly. The law is highly just and beneficial, was passed to remedy a supposed defect in the common law and the statute of Anne, and should be liberally expounded. It is said in the argument not to create a right, but to give a remedy. It is the right of any one to have the full benefit of his ownership in lands. If a tenant in common, having but a comparatively small interest in the minerals, shall use or sell a much greater quantity than he who has a larger interest, it is just and equitable that he should be paid for his loss, and the other’s gain. An equitable right may exist without a remedy, and it is competent at any time for the legislature to provide one. It is a duty they owe to the citizen to furnish it. That has been done by the act of 1850, in language too plain to be misunderstood.

The defendants say that they have taken no more than their share from the whole mass of ore, and until they do so the plaintiff is without a remedy, but can himself sell or use until the shares are equalized; and they also aver, that for all practical purposes the bank is inexhaustible, and it cannot be shown for generations to come how much each is entitled to receive. These two positions, as we conceive, destroy each other. If sound, the man who has but one share is as well situated as he who has the ' other ninety-five, into which those shares are said in the bill to be divided. He may safely sell and use his hundred tons per day, whilst the greater owner is using but ten, and cannot be called to account until that which is “practically inexhaustible” is exhausted. He and his descendants may enjoy it for generations to come before it can be ascertained that they have worked out their share. The act of Assembly contemplates no comparison or apportionment between the respective shares and the whole mass, but that the quantity taken or used by each tenant in common shall be ascertained, and if one has used more than another he shall account according to their respective interests or portions in the land. There is no mention of the respective shares, or proportions of the parties, in connection with the whole property, but of their relative proportions to each other. The statute of Anne speaks of one receiving more than “ his just share or proportion,” which by possibility might be construed to mean, of the whole estate, or quantity held in common, but our act of Assembly will admit of no such construction. We do not believe the statute of Anne has ever been so understood, and should such be the decisions under it, it might as well be repealed in relation to mines, as it cannot, in one case in a thousand, be ascertained how far the mass of ore or coal extends, whether the mine will proveto be continuous or inexhaustible, or may suddenly break off or run out the next day. In settling for ore dug, or timber cut and sold, under the statute, the parties have always been held to account according. to their respective interests, and the quantity mined or sold, and not the quantity left in the ground, or on its surface, has been the measure of liability.

From what has already been said, it may be seen that we consider these parties bound to account to each other, not only for the ore sold, but also for the portions used by each respectively, and this both according to the principles established in courts of equity relating to mines, and also by a true and proper construction of the statute of Anne. Under the act of 1850, no distinction is made between that used and sold; it is sufficient that it be taken from the property held in common.

By the agreement of 1787, under which partition was made of other parts of the real estate, it was stipulated that the ore-banks and mine-hills, together with certain other ores in the vicinity, should remain as a tenancy in common. To this estate is incident all the rights of the property so held, except that of partition, to which it is decided not to be subject in Coleman v. Coleman (7 Harris, 100), although it is declared in the same case that the parties can be obliged mutually to account with each other for the ore used.

The fact relied on by the defendant to defeat this bill, that this is not an ordinary tenancy in common, and therefore an aecount cannot be demanded, operates, in our opinion, against the ' position. If the respective owners cannot enforce partition, it strengthens their right to an account. It is said by the Lord Chancellor, in 7 Ves. p. 589, that an injunction will not be granted by one tenant in common against another, for he has a right to occupy as he pleases. Because, says the same court, in 2 Dick, 667, if dissatisfied, he might obtain partition. Nor can the right of each party to his separate mine-hole deprive the others . of the right to have the amount of ore taken from the common property and receive compensation, if the same exceeds the just proportion of the party taking. That arrangement was to prevent confusion in working the mines, and the parties and their workmen from interfering with each other. To say that the occupancy of a mine-hole would give the occupant an exclusive right to all the ore that could be taken from it without liability to any one, would be to encourage the party who owned but one-sixth to cover the whole face of the hill with mine-holes and work the same ad libitum, forever, to the exclusion of those who owned five-sixths. This method of assigning each party a settled location to pursue his labor was correct and proper in itself, but should not have given to it a greater effect than was intended by the parties. A much more potent objection to this bill arises from the long period of time that this system of mining has been conducted without any account being demanded by either of the various parties in interest. A reason may, however, be stated for commencing this proceeding in 1851, when the bill was filed, which did not exist for any considerable period before. It is averred in the bill, and the fact conceded, that until about the year 1848, no ore of any kind was sold by either of the parties in interest, and since that period large quantities have been sold by some of the defendants. It also appears that within a few years many new and very extensive furnaces have been built by all of the part-owners, requiring a greatly increased supply of ore, consuming more annually than was used by any furnace under the old system- in many years. Until within some twelve or .fifteen years before suit brought, no ore was mined except what was required to supply the furnaces erected on the ground held in common by the ancestors of the present owners; since then, new ones have been constructed on other soil and at various places. Where a common property has been long used in a particular and uniform manner, without any account being required or demanded, it is fair to presume that a contract or understanding existed between the parties that no accounts should be kept or claim presented. But when, at an after period, a new course of business is commenced, we may fairly presume that from thenceforth the parties expected to enter upon a different system, especially if thereafter a much greater consumption of the common property by either of the parties is shown. It is not just that after such change ;any of the parties should be barred by what had passed sub sileutio merely. Some of the defendants seem to have been so strongly impressed with the equity of the plaintiff to have an account of the ore consumed or sold after the 1st of April, 1848, that they -entered into an article to account for five years, at a price fixed in the contract.

None of the objections presented are, in our opinion, available, and the plaintiff is entitled to have an account as prayed.

Messrs. Bobert and G. Dawson Coleman aver in their answer, that when they made the contract of March 13th, 1849, “it was understood by all the parties thereto, that all claim to any account prior to said agreement, for ores so taken, mined, or carried away, was abandoned,” and any right or claim for ores so dug prior to the time fixed in the article (April 1st, 1848) was waived. This is not gainsaid or disproved by the claimant; consequently that must be fixed as the time for commencing the account between all of the Messrs. Colemans, parties to the contract; and the account as between them must be taken according to the terms of the article so long as it continued in force, and according to the actual value of the ore used or sold by the respective parties from that time until the account is taken. We understand from the argument that the Messrs. Grubbs are satisfied to have the account taken from the same period. It is, therefore, so ordered. But as between them and all of the other parties, the price fixed on the ore is not binding, and the same must be computed according to its actual value.

The Messrs. Colemans must be charged, in their account with the Grubbs, with all the ore taken by Bobinson & Brooke, under the reservation in the deed from Peter Grubb and wife to Bobert Coleman, by which the former secures to himself, his heirs and assigns, forever, the right “to dig, take, and carry away sufficient quautity of iron ore for the supply of any one furnace,” etc., and which right is now conceded to be vested in Bobinson & Brooke. The burden descends on the heirs of Bobert Coleman, and must be charged to those claiming under him in the proportion of their respective interests in the property.

The controversy between the plaintiff and Bobert and G. Dawson Coleman might have been settled at law when this bill was filed, by an action of covenant on the article of agreement, and therefore equity should not take cognizance of the case; but as a settlement with Messrs. Grubbs was necessary and proper, and that could only be effected by a bill in chancery under the act of Assembly, the present proceeding was rightly commenced. The act of 1850 requires all the parties in interest to be made parties to the bill and brought in to answer, and chancery having the sole jurisdiction as to part of the case, the well-established practice enables us to take cognizance of the whole and settle the entire contest. It is true that assumpsit for money had and received will lie where a portion of the common property is sold by one of the tenante, but the rule is different as to that used by the parties.

Where one tenant in common of a ship received the whole sum at which it was hired for a year, assumpsit lies by the other tenant in common, and he is not driven to his action of account or bill in equity (25 Wend. 409; 2 Caines, 166; 15 John, 12, 159; Wheaton's Selwyn, 79; 9 Mass. 538 ; 3 Pick. 420). But in this form of action the actual receipt of the money must be proved; under the act of 1850 it need only be shown that either party tooh the common property, and he must account for its value to his co-tenants.

It is our duty to decree that an account be taken in this ease according to the principles we have laid down, and it will be referred to a master for that purpose. On the coming in of the report, it may become necessary to make an order as to the method of keeping the accounts, and settling between the parties hereafter.

DECREE OP THE COURT.

And now, to rvit, October 21st, 1858, this cause came on to be heard on the bill, and several answers of the defendant, and was fully argued by counsel, and submitted to the court, whereupon, the court did take time to consider of the same.

And now, to wit, January 6th, A.D. 1859, on due consideration thereof, it is ordered, adjudged, and decreed, that a full and true account be taken between the parties above stated, of all copper and iron ores taken or sold by them, or any of them, from the “ Cornwall Ore-Banks and Mine-Hills,” of which they are tenants in common, in the proportions stated in the bill, and it is further ordered, adjudged, and decreed, that it be referred to a master in chancery, to take and state an account between the said William Coleman, Robert Coleman, G. Dawson Coleman, Edward B. Grubb, Clement B. Grubb, and Robert W. Coleman, touching and concerning the several matters of account in said bill, and answers mentioned. That in taking said account, the said master commence with the first day of April, 1848, and charge each of said parties with all copper or iron ore, taken, used, or sold from their common property, described in said bill and several answers, and for the purpose of stating said account, the said Robert W. Coleman and William Coleman be taken as one party owning together fifty ninety-sixth parts, and no account to be stated between them. That Robert Coleman and George Dawson Coleman be taken as one party, owning together thirty ninety-sixth parts, and that no account be taken between them; and that Edward B. Grubb and Clement B. Grubb be taken as one party, owning sixteen ninety-sixth parts, and that no account be taken between them; but that each of said parties, divided as aforesaid, account to the other, according to their respective portions in the common property, as aforesaid. That in taking said account between the said Robert W. Coleman and William Coleman on the one part, and Robert Coleman and George Dawson Coleman on the other part, between the first day of April, 1848, and the first day of April, 1853, the master be governed and guided by the terms and conditions of the article of agreement entered into between the parties on the 13th day of March, 1849, and so far as the account has been stated and settled between the parties under that article, he is not to travel into the same. And, from and after the expiration of the article, each of the parties is to be charged with the iron and copper ore taken, used, or sold by them respectively, according to its actual market value, at the time of taking, using, or selling the same. That in taking the account between the said Edward B. Grubb and Clement B. Grubb, and the said Robert W. Coleman, Robert and George Dawson Coleman, the respective parties be all charged with the quantity of copper and iron ores taken, used, or sold by them respectively, according to its actual market value, at the time of so taking, using, selling, or otherwise disposing of the same, and in stating that portion of the account the said Colemans are to be charged with all iron ore taken or used by Robinson & Brooke, or either of them, under the reservation contained in the deed from Peter Grubb and wife to Robert Coleman the elder, of sufficient ore for the supply of one furnace •” said ore to be charged to them in the proportion of their respective interests in the ore-banks, and at the actual market value at the time of taking the same. And for the better discovery of all the matters aforesaid, the said parties are to produce before the said master (upon oath) all books, papers, writings, or documents in their custody or power, relating thereto, and to any portion or part of said account, as the said master shall direct, and the said parties, or any of them, shall be examined under oath before the said master, or on interrogatories, as he shall direct, and he shall also compel to come before him, such witnesses, and examine the same under oath or on interrogatories, as he may see proper, and in his report, shall be at liberty to state such special circumstances as he may deem expedient and necessary. And the said master is required to make report to this court upon the matters hereby referred to him and to state a full account with all convenient speed. And the court doth reserve the consideration of the costs of this suit, and all further directions, until after the master shall have made his report, when either party may be at liberty to apply for a further decree or order.


source: Caselaw Access Project

author: By the Court.

license: Public Domain

text:
      Court of Common Pleas, Lebanon County,

      May 6th, 1857.
    Wengert v. Maulfare et al.
    A father and son lived together on land of which the former was the tenant; the latter purchased a portion of it from the landlord by a parol agreement, took possession of it, and after a short time had a fence (which was afterwards straightened), run between it and the remainder of the land, and made valuable improvements, with the knowledge of his vendor. This whole property was afterwards recovered back from the vendor upon .an adverse title, which was sustained by tire Supreme Court. The vendee then purchased it and took a deed for it from the plaintiff in that suit. A second action of ejectment was brought by the original vendor against the former plaintiff and the vendee, who set up as a defence, his deed, but not his parol title; the land was recovered by the plaintiff) and this judgment also affirmed by the Supreme Court. The vendee, to avoid being turned out of his house, took a parol lease of the property from the original vendor upon receiving assurance from a deputy sheriff, in the former’s presence, that it would not affect his title. The lessor then made an agreement with his attorneys to give them one-half of the entire property, without reserving the right of his vendee. The latter’s interest was afterwards sold at sheriff's sale, and the purchaser tendered the price originally agreed to be paid to the vendor.

      Held, That there was such an open and notorious possession in this case, as took it out of the statute of frauds-; and the fact that possession was not taken immediately, and that the fence was afterwards straightened to correct a mistake, made no difference.

      Held, further, That the fact that the vendee afterwards purchased from the party who recovered in the first action, did not destroy his title; nor that after the trial of the second suit he took a lease from his original vendor.

      Held, further, That the possession of the vendee under a parol title was a sufficient notice to the purchasers (the attorneys) of all his title.

      Held, further, That a judgment against the vendee bound all his titles, legal and equitable, that the purchaser at sheriff’s sale was entitled to the property, upon tendering the price originally agreed upon, and that delay in offering it was excused by the uncertain nature of the title.

      Held, further, That neither the fact that the vendor at one time could not have made a title, nor that his title was once destroyed by the recovery in ejectment, will destroy the parol title of the vendee.

      Held, further, That the failure to set up his parol title by way of defence, did not estop him or those claiming under him from asserting it.
   By the Court.

Tbis case has been argued by the counsel on both sides as one of law alone. The facts have not been disputed., but are conceded to be as stated by the witnesses. There are some points in the cause which weshould have thought it our duty to submit to the jury, but as both sides ask us to pass on the legal questions without your intervention, we will gratify them by expressing our opinion on the whole' case.

The evidence shows that in the winter of 1847-8, John Hean, Jr., who had recently married, was living with his father in a house situated on an acre of ground, part of the lot in dispute. John Hean, Sr., was the tenant of Daniel Maulfare, had rented the house and acre of ground. In the course of the winter, Mr. Maulfare contracted with John Hean, Jr., by parol, to sell him one-half acre of the ground referred to; and the latter, pursuant to the purchase,'took possession on the first of April following. At the time of the contract the boundaries were precisely designated. The ground was to extend on the one side to the property of the Union Canal, to bound on the street and alley on both of the ends, and to be divided from the residue of the acre lot by a fence, pointed out and fenced as the boundary, about half way across the lot, and by a continuous line in the precise direction of the fence across the lot to the alley. In our opinion the boundaries were designated with sufficient certainty to enable any one, whether a surveyor or otherwise, to lay off the lot w'ith accuracy, or for a scrivener to draw a deed without any further description. John Hean, Sr., had the whole acre in possession as a garden, orchard, etc., and his son lived with him at the time. It therefore raises the question, was there such a change of possession as will take the case out of the provision of the statute of frauds and peijuries? It is well settled that there must be a change of possession, which must be delivered and taken pursuant to and under the contract; there must be livery of seizin and open and public investiture. I am clearly of the opinion that may be done in regard to property situated like the present, although I could not as to the house in which John Hean, Sr. and Jr., resided. The owner made the contract with John Hean, Jr., agreed to and fixed the boundaries, not including the house, delivered him possession of the ground sold, which is a good part performance of the contract. The son had no lease of the lot, and no possession, actual or constructive, of the part of it agreed to be conveyed. Had it been of the house itself, the law would have been otherwise, but the great objects of the law, a notorious change of possession and investiture by livery, can as well be had in a case like the present as.if John Hean, Sr., had not been the tenant of Maulfare. Where the father is the tenant of a farm, and is residing upon it with his family, and one of his sons purchases a portion from the owner, not embracing the domicil, and that part is run off bylines and delivered to the son by the landlord, there is as perfect and notorious a change of possession as though the father was not resident on the land, and had no occupancy as a tenant. The price to be paid for this property was fixed at one hundred and twenty-five dollars. After .John Hean, Jr., took possession, in the spring of 1848, he commenced improving the property, built a house and outbuildings, which cost him over eight hundred dollars, moved his family into the house, and resided there till dispossessed in the year 1855, in the manner to which we will hereafter refer.

During the making of these improvements Maulfare resided within one hundred yards, and not only knew what Hean was doing on the premises, but gave every encouragement and facility to construct the building. By arrangement with Hean, and for the benefit of Maulfare, the latter insisted on paying the workmen with store goods, and boarded a portion of the hands. The charge for this expenditure was afterwards settled between the parties, and although not paid in full by Hean, yet it was satisfactorily arranged by his paying in part, and giving a note for the residue. The hundred and twenty-five dollars for the lot was not paid, and no precise time for payment was fixed by the contract. Of course the money was to be paid in a reasonable time. The cause of a pretty long delay will be adverted to hereafter. From all of this evidence we consider the sale valid and binding; and that there is sufficient proved to take the case out of the prohibition of the statute, and if there is nothing else in the way, the plaintiff is entitled to recover; for we hold that a purchaser by parol, where the title has passed in equity, can recover when out of possession as readily and with the same force and effect as he can defend against the legal title when in possession.

It has been urged that the money and goods of Maulfare, to a considerable extent, made the improvements on the property in dispute, but the evidence shows clearly that they were not furnished on the credit of the title, but on the personal credit of Hean. He alone was looked to for payment; the settlement was made between the parties as for any other debt, and the obligation of Hean taken. It has no effect on this claim, gives Maul-fare no additional equity, and takes away none of Hean’s rights.

Before John Hean, Jr., received possession from Maulfare, an action had been commenced by Ashmead against John Hean, Sr., to recover this property on an adverse title. Maulfare was permitted to defend as landlord. The cause was tried at August Term, 1848, and a verdict rendered infavor of the defendants. In 1850 the judgment was reversed, and in November of the same year, the plaintiff in that case recovered. On the 13th of January, 1851, John Hean, Jr., in order to avoid being dispossessed, was obliged to purchase his house and lot from Ashmead, for the sum of $400, and received a deed.

It is said that by this purchase Hean relinquished the title bought from Maulfare, and can never afterwards set it up. We do not think so.. He had a right to acquire as many titles, in order to perfect his right, as he thought proper: the purchase of one would not extinguish the other. Suppose the conveyance from Maulfare had been by deed, or written article, it would scarcely be pretended that it was abandoned by this purchase. From the decision of the Supreme Court of the State, Hean had every reason to believe that Ashmead, and not Maulfare, was the legal owner, and he had a right to buy his peace. Maulfare cannot complain; he was no loser by this transaction; on the contrary Hean was, and paid his money because he believed the interest acquired from Maulfare was not sufficient for his protection, although the latter, if worth the amount, was bound to make it good.

In 1853, Maulfare brought suit against Mrs. Ashmead, Uhler, and Hean, to try the title a second time, and obtained a verdict .in November of the same year, which was affirmed by the Supreme Court in September, 1854. Before the affirmance a writ of habere facias issued, and Maulfare was placed in possession on the 15th of December, 1853. At that time Hean accepted a lease of the premises from the deputy sheriff, who was authorized by Maulfare to take it, and the same was to hold good until the 1st of April following. Before entering into the lease Hean inquired of the deputy sheriff if it would injuriously affect his title from Maulfare, and was told that it would not. This lease was renewed on the first of April for another year. The rent was small, perhaps merely nominal. In the course of the last-mentioned trial it is conceded that the title of Hean from Maulfare was not set up; that no other title was presented as a defence except the deed to Ashmead. The ease turned solely on the validity of that deed. It is now said that the equity under the parol purchase was abandoned by not presenting it as a defence in that case; that Hean is barred by accepting the lease, and is postponed in equity from his long delay in paying the purchase-money. It is very certain that the present title was not set up by Hean on the trial referred to, nor was his deed from Ashmead. It is said that he was not even present. Had this title, now in controversy, been presented then as a defence, and passed on by the court and jury, it may admit of question whether the party, or those claiming under him, could now set it up, being a mere equity. But not having been presented then, there is nothing to prevent the right from being investigated now. The main contest at that time was between conflicting opinions of the Supreme Court. If that delivered in the former case of Ashmead v. Maulfare was adhered to, the title of the latter was worthless. If it had been overruled in principle, and was not binding as an authority, it was good; there was no inquiry further. Hean was not bound to present this title as a defence, and the failure so to do cannot be considered an abandonment of it.

Accepting the léase under the circumstances is no bar to a recovery. The agent of the then plaintiff, Maulfare, told him it would not affect his right; it was probably his only means of preventing his family from being turned out in the dead of winter, and was evidently, under all the circumstances, not considered by either party as changing their relative rights. The claim of Hean was fully recognized by Maulfare that winter and the following spring, when he still said that all he wanted or expected from Hean was the payment of his purchase-money, $125. He seems to have repelled with indignation the idea that he was going to take Hean’s property from him, or occupy the house himself, and declared long afterwards that but for the oversight of failing to reserve it when he contracted with his counsel, Hean ■should have -it according to the contract. Even as late as the fall .of 1855, he stated the same in substance, and that he would •give ‘him the property as he had agreed but for fear of trouble with Messrs. Fisher and Funck. The failure to pay the purchase-money will not postpone the right of Hean. It is very true that a court-of equity will not interpose in favor of a party who has shown negligence or backwardness; nothing will call forth its action but a pure equity and a reasonable diligence. It seems to me, however, that this delay is fully accounted for. When the contract was made, no time wTas fixed for payment; the law would impart that it should be done in a reasonable time, which might be hastened by request. Payment was never urged.

In March, 1848, a suit was brought on an adverse title to recover the property, and a decision had, in August, in favor- of Maulfare, which was removed by writ of error, and the title decided to be invalid in July, 1850, and the latter dispossessed in November of that year, when Hean was obliged to pay $400 for the adverse claim. Maulfare, it is true, again recovered in November, 1853, but his right Aras left in uncertainty until the affirmance of the judgment in September, 1854, and even to this time he could not have had the face to ask Hean for the purchase-money, and never at any time, then or afterwards, demanded it. The Avhole delay was from that period until the 8th of January, 1856, when the money was tendered. This is, in our opinion, insufficient to postpone Hean’s title.

It has been urged by the plaintiff that Avhere a title, commencing by parol, has once vested by delivery of possession and the. making of valuable improvements, it cannot be divested without a reconveyance in Avriting, or redelivery with improvements by the former OAvner. We do not subscribe to this doctrine by any means, but on the contrary, look upon it as a mere equity, which may be abandoned, surrendered, or lost by negligence, or as it commences in parol may be released by parol.

It is also contended by the defendants that the judgment entered by Hickernel, in 1851, on which the plaintiff’s title is founded, was no lien on the equitable, but only on the legal title acquired by Hean from Ashmead. In Pennsylvania, a judgment is a lien on every kind of equitable interest held by the defendant in land, as well as upon legal titles. If Mr. Plean had a dozen titles, part legal, others equitable, all Avere bound by the judgment, and all passed to the purchaser at sheriff’s sale, Avhich transfers every possible interest, legal or equitable.

We haye no doubt as to the right of the plaintiff to recover against Maulfare, and the next question is in regard to the interest of Messrs. Fisher and Funck.

On the 11th of March, 1854, Maulfare transferred to Fisher and Funck, by deed, one undivided half part of all the property recovered in the ejectment, embracing among others the house and lot in dispute. This was in consideration of professional services rendered. I look upon them as purchasers for value, and the only question is, had they notice, actual or legal, of Hean’s claim. If they had, they purchased subject to it, and are in no better situation than Maulfare. If they had not, they will hold the undivided half of the property by virtue of their deed. We have no evidence that they had actual notice, but constructive or legal is quite as efficacious in law.

In the present case Hean was living on the land, it is true, at the time, as the tenant of Maulfare, but his possession was notice of every kind of title by which he held; of the lease, the deed from Ashmead, the parol contract, and every other possible interest. The person about to purchase is bound to inquire of the tenant in possession as to the character of his -claim. Should any one of the several titles be concealed, or their existence not communicated, it would be postponed, and never could be afterwards set up. Probably the only exception to this rule is where the occupant registers a title; in which case he is confined to it, as a purchaser has a right to presume that he holds under the registered title, and none other.

This doctrine applies most emphatically to a parol sale, as the purchaser, in such case, has no title to register; is therefore guilty of no negligence, and can furnish no other notice than his possession.

Had Mr. Hean set up his deed for Ashmead on the trial, and not spoken of his parol purchase, it might have misled Fisher and Funck, who tried the cause for Maulfare; but it is not pretended that this deed was used. We therefore hold that they had full notice of the present claim, and are in no better situation than Maulfare.

It is further contended that there was a time when Hean could not have recovered from Maulfare; that there was a breach in the continuity of his right, and being once broken, it was gone forever, and Hean driven to an action for the recovery of damages, instead of holding the land.

I confess myself at a loss to precisely understand this course of reasoning. Maulfare’s title never was divested. Although at one time decided to be inefficacious, yet it always existed. He acquired no new title on which the after recovery took place; it was by virtue of the right which he held when he sold to Hean. It is true that Hean might have resorted to an action against Maul-fare when the title sold by him was decided to be invalid; but he never brought such an action, never claimed damages, never surrendered his right, or even his possession, and has the same claim now, against the same property, held by the same title, that he had at first. Even if Maulfare had afterwards acquired a new and better title to the property, he would have held it as a trustee for Plean, his former vendee.

It is urged that the tender is insufficient, and should have been made to Fisher and Funck as well as to Maulfare. It is probable that a tender to one of two tenants in common is good, but that point need not be determined. The contract was with Maulfare alone, and the purchaser from him is not bound to look to his vendees in making the tender. If those persons purchased with notice of the sale to Hean, they are not in law bond fide purchasers. If they purchased without notice, they will hold the property; in no event is Hean, or those claiming under him, bound to look beyond the man who contracted to sell the lot, and the tender is good. The money is now in court for the use of the parties who show themselves entitled, and can be distributed according to their respective interests, but the vendee is not bound to look to that distribution.

Two other points were suggested in the argument by the defendants : 1. The possession must be taken immediately on the sale; and 2. This possession continued to be mixed until the fence was straightened after the recovery by Ashmead and purchase by Hean in the spring of 1851. We do not think that either objection to the title is valid. The contract was made some time in the winter, and possession taken, with the full approbation of Maulfare, on the 1st of April afterwards. This is, in our opinion, no defect; it is delivered and taken pursuant to the contract. At the time of the purchase there was an offset in the division fence, throwing one more row of apple trees to the purchaser than was included in his purchase ; he got possession of all that he contracted for, and that much more, and the property was so held until John Hean, Sr., was turned off in 1851, after Ashmead’s recovery, when a new tenant took possession. The fence was then straightened, and placed upon a line. This was no mixed possession, and can have no effect on the title. Although we do not consider it politic to extend the law one jot beyond its present limits in supporting parol sales of land, yet we must pronounce our opinion that in the whole evidence in the case, the plaintiff has made out a perfectly regular title, such as gives him an equitable right to recover the possession of the property in dispute, and therefore your verdict should be in his favor.

To this charge the defendants counsel did except; at their request this exception sealed.

Note. — The defendant further assumed the following position: “ That to constitute a good, valid, and binding parol contract, such contract must not only be. mutual in its inception, but must continue so at all times thereafter, and up to the time it is sought to be enforced by the parol vendee against the parol vendor. That in the case in hand, no such mutuality existed between the parties thereto, after the recovery of Aslimead in the ejectment against Hean, Sr., and Maulfare. That after the recovery, if Maulfare had made a deed, tendered it to Hean, Jr., and demanded the consideration-money, Hean, Jr., would have had the undoubted right to refuse to leceivesaid deed or pay the consideration-money, upon an allegation that the possession under such parol contract had been put an end to by that recovery, and that his parol contract fell with Maul-fare’s title. And that the mutuality which must legally exist being thus disrupted and put an end to, the parol contract was no longer in existence, nor afterwards resuscitated by any act of John Hean, and never set up by him, or alleged to be in existence until the tender on behalf of Wengert, made to Maul-fare on the 8th of January.

Williamson, for plaintiff.

Funak and Fisher, for defendant.

To this the court answered: That in legal contemplation, Maulfare’s title was always good and valid, although at one time deemed to be vicious, yet that was under a mistake of the law. The law is never uncertain, is always fixed, and always the same, although sometimes it is a little uncertain how it may be determined. Had Mr. Maulfare presented to John Hean, Jr., a deed for the premises, and demanded his money, and the latter had refused payment and set up his title from Ashmead as a defence, it might operate as an estoppel, and bar his recovery now; but had the deed been tendered and money demanded, it is quite possible the one would have been accepted and the other paid. It is very clear, that had Maulfare sued for his money, there could have been no legal defence by Hean, if the title tendered him was good, and the law as now settled declares it to be good. It is to be presumed it would beso declared at all times. This whole position, we think, is fully met and answered in the general charge. Maulfare acquired no new title by the judgment of the court; he remained on his old title, which was always good. Hean’s interest never ceased, always remaining the same; mutuality of remedy always existed in contemplation of law-Nay, more, it may be well questioned whether Hean could have defended against an ejectment brought by Maulfare, or been permitted to aver that his title was bad, as he received the possession from him. This answer made part of the charge and embraced within the exception.

This case was reversed by the Supreme Court, on the grounds that the vendee of the land, having failed to set up his parol title to it in the action of ejectment brought by his vendor, neither he, nor the purchaser of his title at sheriff's sale, could afterwards assert it, and that by accepting a lease he abandoned his former title. The rest of the opinion was affirmed (Wengert v. Zimmerman, 7 Casey, 401).


author: By'the Court.

text:
      Court of Common Pleas, Lebanon County,

      November 9th, 1858.
    Wengert v. Maulfare et al.
    When a judgment is obtained against a person who has a title to land, which is afterward declared void by the Supreme Court, the purchaser of his interest at sheriff’s sale has no title and cannot recover.
    When a person who has an equitable title to land is made a party to an action of ejectment by his vendor, and fails to set up his equitable right, he and those claiming under him are forever debarred from recovering under it; it is net merely evidence from which the jury might presume that he had abandoned it. The fact that the vendee afterwards leased the property from the vendor will not destroy the former’s title, when he was assured by a person in the latter’s presence that it would not have that effect, and he (the vendor) assented to it.
    Wengert v. Maulfare et al., ante, 484, partly overruled.
   By'the Court.

This cause comes before the court a second time on precisely the same evidence, except as relates to a single point, which was probably substantially proved before as now, though not so clearly expressed by the witnesses. It is now shown by the evidence of John Hean that Daniel Maulfare was present,-and assented when Mr. Ely, the deputy sheriff, assured Hean, that accepting a lease would have no effect on his title acquired by parol from Maulfare. This statement is not contradicted. Mr. Ely proved on the former trial that Maulfare came in before the lease was taken, and assented to what was doing, and agreed to the reduction of the rent to almost a nominal sum. Two points are decided by the Supreme Court in relation to this title, as raised by the former evidence, one of which in our opinion is completely removed by the present testimony. If Maulfare was present, and agreed that Heads rights should not be injuriously affected by accepting the lease, he, and those claiming under him, must stand in the same situation that they would if the lease had not been given and received. The Supreme Court predicates its judgment on two points, as we understand it: 1st, by accepting a lease, John Hean abandoned his former title: 2d, by failing to set it up on the former trial, he is forever barred from claiming under it. It is in the nature of a decree in equity against his title. This decision is binding on us, and our instruction is equally obligatory on you. We take the decisions of the Supreme Court as a matter of faith, whether they accord Avith our own judgment or not. They are of equal force with the acts of Assembly in the inferior courts, on juries, and the citizens at large, until altered or reversed by the tribunal that made them. Neither you nor Ave are responsible for their justness or correctness. We take it for granted they are both the one and the other. We therefore instruct you that the evidence as given makes out a valid equitable right in the plaintiff to recover the premises in dispute, but for the failure of John Hean, Jr., to set up his equitable title on the trial of the ejectment, Maulfare v. Uhler, Hean, Jr., and Ashmead, No. 31, April Term, 1853, and that the judgment given in that case is a perpetual bar to his recovery, and forever extinguishes his equity. Those claiming under John Hean, Jr., stand in the same situation with himself, consequently the plaintiff has no title, and cannot recover. The effect of the lease is entirely destroyed and removed by the evidence now given; but that of the former verdict stands as it did when the Supreme Court passed on the titles of the parties — nothing has, or can change, or impair the effect of that recovery. As we understand the opinion of his honor, Mr. Justice Woodward, the effect of that judgment is the main ground of the decision.

We hold the same opinion now that we did on the former trial; that the parol sale to John Hean, Jr., the delivery of possession, and valuable improvements made by him, gave him a right of possession as against all the world, Maulfare included; that he could retain the possession against Maulfare, who held the legal title, on complying with his contract by paying the purchase-money, or if out of possession, he had such a right of entry as would enable him to regain it on paying, or tendering the purchase-money, the non-payment of which on the day it fell due, did not amount to a forfeiture, and gave Maulfare no legal right to rescind the contract. But under the decision in this case we say that the recovery by Maulfare, in 1853, extinguished Hean’s equity; is not merely evidence of an abandonment of the title by Hean, to be passed on and considered by a jury, but amounts to a flat bar to his recovery now, and forever. This leaves no question for the jury to decide, and consequently your verdict must be in favor of defendants.

Both plaintiff and defendants have raised various points of law, which they consider applicable to their case; but, as what we have said is decisive, no further instruction will now be given, and we will answer the points hereafter in our written charge.

The defendants’ counsel state in their argument that they desire us to consider as raised by them all the points they raised in the former trial, and also one more: “That the judgment obtained against Hean was no lien on his equity, and the sheriff’s sale did not pass it to .the plaintiff; consequently he has no title, and .cannot recover.” All the points raised before are considered fully answered in our former charge. We adopt it now, and it may be considered and taken as part of the present. This will give a fall opportunity to raise and reargue the questions thus presented. In answer to the new point raised by the defendant: If Hean had no title to or interest in the estate, at the time of the levy and sheriff’s sale in 1855, no title passed to Wengert, the purchaser. The Supreme Court has decided that Hean’s title was extinguished by the recovery in 1853; consequently the plaintiff acquired no title. When the judgment in favor of Hickernel, on which thefi.fa. issued, was obtained in 1851, Hean had an interest in the property which was bound by it. Although but an equity, yet we consider that, according to the settled law of Pennsylvania, every kind of equitable interest which a man may have in real estate, is bound by a judgment entered against him and may be seized by his creditors. In Carkhuff v. Anderson (3 Binn. 4), it is held that every, kind of equitable interest in land is bound by a judgment, and that was applied to a Connecticut claimant, whose title was void, but who had a right to come in and have it confirmed, which was not done by him, but by the assignee at sheriff’s sale. Even an inchoate interest, provided it be an estate, is bound (2 Rawle, 188). So every kind of title, contingent or otherwise (1 Yeates, 427). A purchaser at sheriff’s, sale before payment of the money or execution of the deed, has such interest (7 W. 437). So where land was conveyed in fee for building a schoolhouse, with condition of reverter annexed to the grant if the contract was violated, it was held that the grantor had such an interest by the possibility of forfeiture as was bound by a judgment and could be sold (4 Harris, 140). So where property was purchased at auction, and judgment obtained before money paid or deed made (8 W. & S. 186). So where a lease was taken with the condition that, if the tenant made valuable improvements, he should have the land at a price to be fixed afterwards (5 S. & R. 124). Where lands are legally assigned by deed for the benefit of creditors, the possibility of reverter to the assignee may be bound (9 Harris, 29). So the interest of tenant by the curtesy initiate, and tenant in dower. In short, says Judge Rogers, in 3 Barr, 69, “ Every interest of every description in land may be sold by the sheriff” (see 12 S. & R. 12). We have no doubt that Hean at one time had such an interest in this house and lot as might be and was bound by the judgment in this case, but according to the decision, that interest was extinguished before the sale. Although a purchaser by parol has but an equity which may be abandoned, yet there are cases where he would be precluded from so doing; as where a man had bought by parol land of little value, and put on it extensive and valuable improvements, he would not be permitted to abandon his right, to the. injury of his creditors and benefit of his vendor; but the creditors could, notwithstanding the abandonment, seize it for their debts, and on complying with the conditions of purchase, would be entitled to all the rights and benefits which their debtor could have claimed.

We will now proceed to examine.the legal questions ’presented by the plaintiff’s counsel in his argument. He contends that the title of the plaintiff is sufficiently established by the evidence, and the recovery in ejectment by Maulfare, in 1853, does not destroy or impair it; but the failure to set it up is mere evidence, from which the jury may or may not infer an abandonment, and the subsequent acts and declarations of both vendor and vendee repel that idea. That taking the lease, under the circumstances stated, is not a relinquishment of the title; and failure to pay the purchase-money when due is excusable, on account of the uncertainty of Maulfare’s title, and the same was paid, or offered, in a reasonable time after his right to the property was established.” We have already expressed the opinion, that the title of John Hean, Jr., although founded on a parol sale, was good and valid. There has been, of late, an apparent effort on the part of our Supreme Court, to get clear of the decisions establishing the validity of such sales, and come down to the letter of the statute; but in our humble judgment, such decisions not only tend to shake our confidence in a system of jurisprudence founded on a long train of adjudicated cases, but to counteract the intention of the legislature. It must be borne in mind that our act of Assembly is fashioned from the statute 29 Charles II, commonly called the statute of frauds and perjuries, which had been in force for about one hundred years before ours was enacted, and under which it had been repeatedly decided by the courts, that the statute was designed to prevent fraud, as well as peijury, and parol sales and leases of land had often been sustained, when accompanied with delivery of possession, and valuable improvements made, and where it would have been against equity to revoke or set them aside. These decisions were well known to our law-makers, and it must be presumed that the legislature framed the act with a view to them, and expected, and intended it to receive, the same construction given to the present statute. The failure to pay the purchase-money promptly is sufficiently accounted for. Shortly after Maulfare sold to Hean, Ashmead brought his ejectment, and should his title prevail, none could be made by Maulfare to Hean. That contest was urged with various success till the close of 1850, when final judgment was entered in favor of Ashmead, whose title was decided to be valid by the Supreme Court. So long as that decision stood in force, Maulfare could not demand and Hean need not pay or tender the purchase-money. Maulfare never established his title, so as to show that it was valid, until the 14th of September, 1854, when it was settled in his favor by the Supreme Court. Hean was not bound to regard the adjudication of the Court of Common Pleas of Lebanon County, in November, 1853, as he had no reason to suppose that the court of last resort in the State intended to revoke its own decision, and declare valid a title which, but four years previously, it had said was void. The tender was made and deed demanded on the 8th of January, 1856. This was within a reasonable time, and if Maulfare desired more prompt payment, he might have hastened it by request. Taking the lease, under the circumstances stated by John Hean in bis evidence, will not operate as a bar to his title, and if Maulfare agreed that it should have no such effect, it would be fraud on Hean to give it an operation not intended by the parties. Accepting the lease would oblige Hean to.give up possession to Maulfare, but he could afterwards contest his title as fully as if it had not been taken (Lewis v. Bradford, 10 W. 78; Treaster v. Fleisher, 7 W. & S. 139; Miller v. Shaw, 7 S. & R. 129). The subsequent transaction with Hean in April, 1855, by which he was induced to pay fifty dollars as tenant to Maulfare for another year, should have no weight in this case; it was a mere imposition practiced on an ignorant man, by making him believe that by remaining on the premises after the 1st of April, it was a continuance of his lease for another year, at such rate of rent as the landlord chose to impose ; whereas, in reality, it was at most an implied contract to remain at the same rent fixed in the former lease, to wit, three dollars from September till April. By continuing on after the first of April, under the circumstances, no contract of any kind was raised.

The plaintiff’s counsel most strenuously contends, that the failure to set up the parol sale, as a defence against the ejectment brought by Maulfare, was not a bar to Hean’s claim, but only evidence, from which the jury may, or may not, infer that it was abandoned. Such, in our own opinion, is the law, but we do not so understand the decision of the Supreme Court. The decision, as we understand it, is, that the recovery is in the nature of a decree in equity, and destroys the right, extinguishes it forever! True, the evidence shows that the title of Hean was never'passed on, was not even presented for adjudication; this was a fact conceded on the former, and proved on the present trial. No title in Hean, as acquired from either Ashmead or Maulfare, was then presented for the consideration of the court and jury. The only matter in controversy was the respective titles of Ashmead and Maulfare, and the only point decided, or passed on, by the court below, Avas, that the Supreme Court had since settled the law differently from their former adjudication between the same parties.

Although it must be conceded that a decree by a court of chancery is equally conclusive with a judgment at law, in respect to all matters adjudicated, and cannot be questioned collaterally in another, or directly in the same case, except by a bill of review, only entertained for particular reasons and under special circumstances, yet, as we conceive, such a decree is only conclusive of the points and rights presented by the record. The bill, answer, and decree, must show what was passed on by the court. If an action of ejectment is to be treated as a bill in chancery, for the purpose of settling the rights of the parties, it should not be carried beyond such a proceeding in its effect. In the present case, if everything which transpired on the trial between Maul-fare, Ashmead, and Hean, in 1853, had been proved, it would conclusively show that this title or equity was not presented for adjudication. A decree in equity only puts an end to the points there decided (1 Howard, 148-9). And it must be conclusively shown that the same points were put in issue, and the rights afterwards attempted to be set up were conclusively determined (13 Ohio Rep. 430, 450-1; 7 John. C. E. 1). Here, it is conclusively shown that this right was not determined. It is a maxim of equity, that in order to ask for its interposition, the party must show himself ready, desirous, prompt, and eager to perform his part of the contract. We are entirely unable to see any backwardness on the part of Hean here. He is not required in equity to be ready, prompt, and eager to litigate, and contest his right, but to comply with his bargain. When the suit was brought, in 1853, by Maulfare v. Ashmead and Hean, there was no reason to suppose that the former had any title, and he certainly did not claim that Hean should turn out, or pay his purchase-money. From all appearance, throughout the trial, and till the argument had commenced, it was a mere experiment, to see if a change in the court, under the present Constitution, would not lead to a change of decision on the point destructive to Maulfare’s title before. Nothing was presented but the original titles of Ashmead and Maulfare, and although Hean was present, he took no part in the controversy. On the argument, a manuscript decision, made a few weeks previous at Sunbury, was produced, which we considered conclusive of the rights of the parties, and so instructed the jury. Down to that time Hean had no reason to suppose that Maulfare had a title, could comply with his contract by giving him one, or that he (Hean) could safely or properly pay him his money. It has often been held, in Pennsylvania, that the failure to pay money on a particular day is no bar in equity, and even where a vendee promised that unless he paid by a certain time he would give up possession, he was still entitled, to have further time, and a conditional verdict (Dixon v. Oliver, 5 W. 509).

Courts of equity grant relief in contracts relating to real property to a far greater extent than as to personal, whether it relates to failure of payment or to make title (2 Story, Equity, sec. 746-7). The doctrine of such courts is not forfeiture, but compensation (Idem, sec. 775, 776). And circumstances of surprise, mistake, or misapprehension constantly led to relief (Idem, vol. 1, sec. 119, 120, 251).

In order to bar the parties’ rights, even in a court of law, the decision must be on the same title. Although two verdicts and judgments had been rendered against a party, which were contended to be conclusive of liis right, yet he was afterwards permitted successfully to set up another title, held by him at the same time, as it had never been presented or passed on by the court (Treaster v. Fleisher, 7 W. & S. 137).

At each time when the present case was tried, the act of April 21st, 1846, was supposed to be in full force; therefore no question was raised as to the effect of one verdict and judgment operating as a bar. The repeal of that act has been since discovered, although the repealing act is not yet published. According to our ideas of the law, the repeal of that statute is unimportant for two reasons.

First. It must appear either from the record, or from the evidence presented on the first trial, or the claim then urged, that the object ivas to enforce an equity, and that the ejectment was brought as a substitute for a bill in chancery. Neither can be predicated of the action tried in 1853. The record does not show that purchase-money was demanded. No evidence was produced on the trial to show that any was due; the possession Avas not required to be restored because it had not been paid. The contract of sale was not set up either by Avay of claim or defence. It Avas a legal form of action brought to enforce a legal right, and founded on a legal title, and the defence was rested on a title of the same character. No question of equitable title Avas presented.

And, secondly. We are of the opinion that under the act of the 13th April, 1807, there must be at least two verdicts and judgments thereon, against the same party, or rather, against the same title, to bar the right.

More than one-half of all the ejectments ever tried in Pennsylvania AArere founded on equitable titles, and in every such case the Avrit Avas used as a substitute for a bill in equity. Every claim by settlement right, every mere application and survey Avithout AArarrant, and many other titles recognized by our laAvs, ha\^e been held sufficient to support such actions in our courts of laAv, and yet Avould be entirely insufficient in those courts where the distinction has been maintained between legal and equitable proceedings. We are unable to see hoAV an action brought by the holder of a strictly legal title against his vendee by articles of agreement can be considered as partaking of the nature of a bill in equity, although such vendee may defend under his article, by paying the purchase-money, or have the amount ascertained by a verdict. If one trial in such case should not be conclusive against the legal right of the plaintiff, AA'hy should the defendant be concluded ? Where the jury, by their verdict, have fixed the equities between the parties, it is in the nature of a decree, and must be complied with, or the right is gone, but a mere general verdict only fixes the right of possession, and by the common law, and under the act of 1807, is not conclusive. For these reasons we have always considered the case of Seitzinger v. Ridgway (9 W. 496), a perversion of the laws of Pennsylvania. Before that decision the Supreme Court had declared, in Youst v. Martin (3 S. & R. 423, 432), that although defeated in his action founded on an article of agreement, the vendee could recover in another action, and he did so recover. In Ives v. Leet (14 S. & R. 301), the right to two verdicts and judgments is again ásserted, and by Chief Justice Tilghman, who says, at p. 303, that the act was framed with great caution, because the object was to deprive the party of a right which had always been enjoyed before, of having more than two verdicts against his claim before it would be concluded. All of the evils apprehended and deprecated by Judge Kennedy, in Seitzinger v. Ridgway, of different juries finding different sums due on the article, has been, as I conceive, effectually removed by the decision in Gable v. Hain (1 Penna. Rep. 265), that “where the jury fixes the amount due, and determines the time within which it shall be paid, if not done, the title is gone,” and I apprehend, if paid, it is equally binding on the other party, and his right to turn the vendee out of possession or have another fix a different sum is forever at an end. These principles have settled hundreds of cases in Pennsylvania. Where no sum of money was decreed to be paid, or time fixed for payment, according to Youst v. Martin, the vendee, if turned out, could tender the money due and regain possession by an action. The same judge who delivered the opinion in Seitzinger v. Ridgway, had previously declared in Mercer v. Watson (1 W. 344), that “ what a court of chancery would do is not to be our guide, because the act of Assembly has been given as a rule of decision as to the number of verdicts and judgments which should be a bar between the parties upon the same title.” Great dissatisfaction was felt by the legal profession with the decision in Seitzinger v. Ridgway, and it led to the immediate passage of the act of May 5th, 1841, repealed and modified, but retained in substance, by that of' April 21st, 1846.

Williamson, for plaintiff.

Funok and Fisher, for defendant.

All of this is, however, beside the present case, having but little bearing upon it, as it must be conceded that an equity arising from a purchase and improvements made, may be abandoned, and if abandoned or extinguished it will be insufficient to support a first or second ejectment.

Affirmed by the Supreme'Court, June 30th, 1859. Not reported.


text:
      Court of Common Pleas, Lebanon County,

      November 17th, 1857.
    Baehler v. Hartman.
    When persons make a written contract for the performance of a certain piece of work, and extra work is afterwards done with the verbal assent of the parties, the contractor cannot recover for it in an action of covenant upon his article of agreement; and the recovery in such suit for the work originally contracted for will not debar him from bringing an action of assumpsit for the extra work. This is his proper remedy, and he is not obliged to sue in case for the whole work.
    Logan v. Caffrey, 6 Casey, 196, distinguished.
   By the Court.

This suit is brought to recover the amount of work done by plaintiff, for defendant, in putting up the back wall of a lager beer vault. It is conceded that the work was done, and the value thereof is admitted to be $241.38, for which your verdict is to be rendered, if the plaintiff, is entitled to recover on the facts proved or agreed on. The parties entered into an article of agreement for the construction of the beer vault, on the 23d of October, 1856, which is in evidence. An action of covenant was brought on that article to April Term, 1857, and a recovery had on trial on the 21st of August, of the same year, for $202.97|-. In that suit the plaintiff, in addition to declaring in covenant on the article, joined a count in assumpsit for work and labor done. On the trial, after evidence given of the whole work done, including the present wall, and the number of perches of stone, both in the vault and the wall, now claimed as extra, the defendant objected that the plaintiff could not recover in covenant for any part of the work, because the original contract had been materially changed by parol, and under such change the plaintiff had done all of the work for which he now claims. It appeared on the trial then, as now, that this wall was an essential part of the vault, without which it could not be substantially and properly built; but as it appeared to be constructed different from the contract — of greatly increased thickness and the walls of a different character from those described in the writing — we were of the opinion there could be no recovery for the work so done, although the alteration was assented to by the defendant. It did not come within the covenants, and if they were claimed to have been changed by parol, the action should have been case. On this ruling the plaintiff, on that trial, withdrew the second count of his narr, and all the evidence given under it, and for all work done outside of its terms. The covenant had not been literally performed, but it was claimed that certain acts were dispensed with by the defendant. We were then of the opinion that there could be a recovery in that action for the work done under the article, but not for additional labor performed outside of it, although essentially a part of the vault and necessary for its security. We are still of the same opinion. To secure the plaintiff against being barred of his subsequent action for this work, the second count and all the evidence given concerning the wall, for building which this claim is preferred, were withdrawn from the jury, and such withdrawal made a matter of record. We also directed the calculation of the work then claimed to be filed, and also the verdict, when rendered, so as to show exactly what the jury had included. It is conceded that the witness Al-wine gave the same evidence before in relation to this back wall that he does now, but that is a portion of the evidence withdrawn on withdrawing the claim. On this statement of facts, two questions arise as to the bar of the former action interposed by the defendant. 1st. Could the plaintiff have recovered for this work in the suit heretofore tried? 2d. If he could not, was it his duty to have brought an action on the case, so as to have recovered his entire claim in one suit ? The wall for which this suit was brought does not by any means correspond with any of those described in the article. The front wall was to be two and one-half feet, and each of the three other Avails two feet, and the arch two and one-half feet thick. This was four, three and one-half, and three feet thick, a portion of the Avork built to sustain and guard the other Avails. From the description given on the former trial, Avhere all was detailed fully and at large, Ave Avere of the opinion that this AArall Avas in the nature of additional work, essential to the vault, but not contemplated or described in the article; and, although the change was made with the assent of the defendant, and Avas to be paid for by the perch at the same price with the other work, yet there could be no recovery for it; the article did not embrace it, and we are still of the same opinion.

The defendant contends that as all of the work to the vault was done before the first suit was brought, the action should have been case and not covenant, whereby the plaintiff could have recovered his entire claim at once, and not having so sued, he is precluded from recovering any part of it in the present action. To support this position, they rely on Logan v. Caffrey (6 Casey, 196). That suit was on a book account for work and labor done under an entire contract of hiring. The account was an entirety, as Avas also the contract. There Avas no legal principle in the way of recovering the whole claim in that suit, but the plaintiff was not prepared with evidence to support a part of it, consequently it was withdrawn. A party is not permitted to split up his book into separate items, and annoy his adversary with .several suits, when the whole could as well be recovered at once. But in the ■ present case there could be no joinder of claims. A portion was performed under a written contract, and according to the terms of the covenant; the other was work not embraced Avithin the covenant, Avas done under a subsequent contract, and although necessarily a portion of the beer vault, and essential to its safety, yet it could not be recovered in the first action, nor could the plaintiff join covenant and case, although it is possible that in an action on the case the whole might have been recovered, yet that is by no means certain, as the work was done under the article so far as was required by the writing, and that now claimed was in addition, formed no part of it. The plaintiff, therefore, was not obliged to waive his written contract and bring an action on the case, and the defendant successfully objected to the joinder of case with covenant, or to a recovery for this work under the contract, as it did not come within its terms. The claim was consequently withdrawn, together with the counts in the narr on which it was predicated. This is unlike the cases referred to in 3 W. & S. 143, 6 W. 373, 2 W. 246, and 9 S. & N. 424, which were all actions, either on instruments payable in instalments, and that claimed in the second, not due when the first suit was brought, cr for money had and received, when a portion came to the hands of the defendant after the first action was commenced, in none of which cases could the party, by any possibility, have recovered that which was claimed in the second action. It is true he was equally precluded from recovery here, as the work was not done under his written contract, but the money was then due and payable, and the only question is, must the party pursue such a remedy as will cover his entire claim? We think not. As well might it be contended that when a man holds the bond of another, and also has a book account against the same party, that he must join all in one action, under the penalty of losing the one omitted. Even if the bond Avas entered as a charge in the book account, and the plaintiff could prove a promise to pay the whole, he Avould not be obliged to resort to his action of assumpsit alone, but could bring that action on his account and debt on his bond. In Killion v. Wright (Leg. Int. of April 8th, 1859) it is said, “ If claims may be counted on separately, they are separate causes of action, and a suit for one is no bar to a suit for another, and as a plaintiff is not bound to account for several claims in one action unless on an order to consolidate, so when he does so account, he may, Avith leave of the court, withdraw one of them, and then it stands as a claim not sued upon, and may be the subject of a future action.” This principle we consider decisive of the present case. There was an illegal joinder of counts, covenant with assumpsit, which would have been fatal in demurrer or in arrest pf judgment. The defendant successfully objected to the present claim on the former trial, and on the ruling of the court it was withdrawn, the count and all of the evidence under it. Great pains were taken to have the facts fully appear on the record, both in the verdict, the calculation submitted to the jury, the notes, and on the docket itself. Great injustice would now be done the plaintiff if he should be prevented from recovering that portion of his claim, and we do not consider him precluded by any rule of law. The amount due for this work is admitted, with interest computed to the present time. Your verdict will, therefore, be rendered in favor of the plaintiff for that sum, as the admissions and proofs make the case entirely a question of law.

Boughter, for plaintiff.

Kline and Punch, for defendant.

Affirmed by the Supreme Court, May 31st, 1860. Not reported.