text:
    Karns et al. versus Tanner.
    1. Parker leased oil territory to Tanner. Parker took possession, alleging abandonment and forfeiture by Tanner, who afterwards died and his interest was sold by the sheriif. In ejectment by the vendee, Held, that Parker was not a competent witness under the Act of April 15th 1869, being “ assignor of the thing,” &c.
    2. The proviso of the act contemplates that the deceased shall be the assignor of the thing, &c., and that the thing, &c., shall be the subject of the action.
    3. When a party to a thing or contract in action is dead and his rights have passed by his own act or the law to another who represents his interest, the surviving party shall not testify to matters occurring in the life of the adverse party.
    4. The declarations of an agent employed to sink a well are not evidence of the reasons of the principal for ceasing to operate.
    5. Abandonment of the lease was a question of intention and was for the jury.
    6. Tanner went into possession under the lease and ceased operating. If he had not abandoned, Parker ousted him wrongfully and ejectment would lie, notwithstanding the grant under the lease may have been an incorporeal interest.
    October 17th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Armstrong county: No. 67, to October and November Term 1870.
    This case was an action of ejectment brought by James P. Tanner against S. D. Karns, John Karns, Fullerton Parker and William J. Parker, to March Term 1868.
    Subsequently the plaintiff died, and June 12th 1869 Frances E. Tanner his executrix was substituted: on the 8th of March 1870, “ executrix” was stricken out, and “purchaser of the interest of James P. Tanner at sheriff’s sale,” substituted.
    The premises in controversy were “ two small lots * * * on one of which an oil-well is drilled,” of which the title was in Fullerton Parker, March 7th 1866. On that day he entered into an agreement with James P. Tanner, as follows :—
    * * * “ That the said party of the first part, in the consideration of the sum of $500, &c., and the covenants hereinafter, stated by these presents does hereby grant, &c., unto the said party of second part, his heirs and assigns, all the oil and mineral rights and privileges, to, on, in and under that certain tract of land situate in the township of Perry, county of Armstrong, &c., bounded as follows, to wit: commencing at the tan-yard run at low-water mark; thence up the river 800 feet or up to a pine tree; thence west to the public road; thence south by said road to said tan-yard run to place of beginning; also one other piece of land situate below said tan-yard from his (Parker’s) line up to the tan-yard, including all below the public road to low-water mark, containing acres, more or less.

      “ To have and to hold, occupy, use and enjoy the said rights and privileges aforesaid, with the right of way on, to, over and into the said premises, and rights and privileges for the purpose of prospecting, boring, mining, drifting or otherwise operating for oil, coal or other minerals, and with the right of timber, stone, &c., necessary to carry out the objects of this agreement, and with the further right to erect and maintain all buildings and machinery necessary and convenient therefor, and remove the same at pleasure.
    “ The said second party agrees to deliver to the said first party the one-fourth part of all oil obtained on said premises, to be delivered at the tank, &c.; * * * the said second party is hereby bound under a penalty of forfeiture of the rights and privileges hereby granted, to commence operations by boring or mining within one year from the date hereof, and prosecute the same with reasonable diligence. This lease to continue for the term of fifty years.”
    Parker assuming that Tanner had failed to prosecute operations with diligence, and had abandoned the lease ; entered as for condition broken, and on the 25th of June 1868 leased to the other defendants, who entered into possession.
    The case was tried, March 17th 1870, before Buffington, P. J.
    The plaintiff gave evidence of the payment of the $500 and of other expenditures for machinery, &c., to about $4000; that Tanner commenced operations in May 1866; Gr. W. Homer was employed by him to superintend the boring, &c.; the well was sunk about eight hundred and thirty feet, and oil found, which was shipped in November 1866.
    Gr. W. Tanner, a son of J. P. Tanner, testified that in December 1867 his father and E. Parker had a conversation about the well, &c., at which witness and Parker’s son were present; Tanner said the money market was tight; he could not spare money from his business, but in a short' time he would send one of the boys up to take charge of the well; he was confident there was enough oil to make himself and Parker well off; in March 1868 proceedings in bankruptcy were commenced against Tanner; he was struck down with paralysis about July 1st 1868, and was not able to do anything until his death, April 18th 1869. The plaintiff gave other evidence of conversations between Parker and Tanner, tending to show that neither considered the lease abandoned.
    They gave in evidence a sheriff’s sale, May 22d 1869, of Tanner’s interest in the lease to Frances E. Tanner, the plaintiff; also proceedings in bankruptcy against Tanner commenced by petition of creditors April 24th 1868, and the petition dismissed February 2d 1869, at the cost of petitioners.
    The defendants gave evidence by W. Morgan that in May 1866, he was employed by Homer, the agent, to help sink the well, and continued until November; after testing it for two or three weeks, it turned out to be pretty hear a failure. The defendants then offered to prove by the witness that he was discharged from further testing the well by Homer, the agent of Tanner, because Homer declared the well a failure, and that on .that account it was no longer necessary to continue testing.
    The plaintiff objected to the offer ; the court allowed witness to testify that he had been discharged by Homer, but would not permit him to testify the reasons given, as not being within Homer’s agency. A bill of exceptions was sealed for the defendants.
    Homer remained there a short time afterwards; in March or April 1867 the derrick and all the machinery but the engine were moved to another well about two hundred rods distant; the well remained unoccupied from that time until July or August 1868, when work was commenced under defendants; they went about thirty feet deeper, when it turned out to be a good well.
    E. Marshall testified that he assisted in taking down the derrick under Homer; that it, with the enginé, was hauled to Parker’s landing ; there was nothing left on the 'ground.
    The defendants offered Fullerton Parker, a defendant, to testify ; he was objected to by the plaintiff as incompetent; was rejected and a bill of exceptions sealed.
    There was evidence also in contradiction of- the testimony of Gr. W. Tanner, and tending to show that Tanner had abandoned the lease.
    The following were points of the defendants, with the answers:—
    1. “ The agreement of the 7th of March, A. D. 1866, between Fullerton Parker and James P. Tanner did not confer upon said Tanner any right to realty; said agreement is but a license to bore for oil and mine for coal, and under it said Tanner had and acquired thereby nothing more than a chattel interest, an incorporeal hereditament, for which no action of ejectment can be maintained, and therefore, for this reason, the plaintiff is not entitled to recover.”
    Answer : “ This point is answered in the negative.”
    3. “ If the jury find that the drilling of the well in question was stopped in December 1866, by James P. Tanner’s agent, and that in March 1867, the derrick, engine and all fixtures were taken down and removed from the premises, and no renewal or resumption of the work took place by Tanner, Fullerton Parker had the right to regard the Tanner lease as forfeited, and to release it to other persons.”
    Answer: “ I do not say these facts justify a forfeiture in law; they are, however, important for the jury with circumstances.”
    6. “ The work at the well was relinquished by Tanner and his employees in November 1866, and the well was allowed to stand idle from that time till June 1868, and Tanner was notified in December 1867, the derrick, engine, and fixtures were taken away, and Tanner declared in December 1867, he would have nothing more to do with it himself, but would send his son up next week, and neglected to do so and to take any steps towards a resumption of the work, Fullerton Parker was justified in releasing the property in June 1868, and even sooner if he had thought proper to do so.”
    Answer: “If all the facts in this point are true, it is for the jury to say whether there was such abandonment. This is for the jury, and is a question for the jury.”
    7. “ The action of ejectment being in the nature of a bill of equity, before the plaintiff would be entitled to recover the jury must be satisfied that James P. Tanner performed his contract to prosecute with diligence the drilling of the well; and the jury will say whether the stopping of all work in November 1866, and suffering the well to remain idle from that time until Mr. Parker •took possession of the well in June 1868, was not an unreasonable delay. Sitting as a chancellor the judge is entitled, to express his opinion on the facts, and therefore to say that specific execution of the contract under all the .circumstances ought not and cannot be enforced.”
    Answer: “ I do not view this case as a bill in chancery. It is a proceeding to recover a forfeiture on condition broken, and is a proceeding at law. It is therefore answered in the negative.”
    The court further charged:—
    * * * “The lease of the 7th March 1866, is relied upon by the plaintiff, as establishing her right of possession. Without going into an analysis of its terms, being as it is a question of law, [the conclusion the court has come to in the construction is that it is the grant of a corporeal right not only to the oil and mineral, but also to the surface of the premises described as necessarily incident to the working and enjoyment of the main object of the grant. Without the right to the possession of the surface the mineral could not be reached; and being, therefore, an exclusive right to the possession, inseparably connected with the occupation and enjoyment; and being a purchase of the lease held for a valuable consideration of $500, and rents for the term of fifty years, we deem it such a corporeal right to the occupancy of the premises as will sustain an action of ejectment; and we also think that it is a purchase and sale of an estate for years for a valuable consideration, encumbered with a rent-charge, or a rent in the nature of a rent-charge, with a clause of forfeiture upon a contingency. Such is the construction the court have put upon that agreement or lease; and if the terms of it were complied with in its tenor and spirit, the plaintiff must be entitled to recover.] This disposes of the question raised by the defendants’ counsel as to the nature and character of the estate, and the rights whether corporeal or incorporeal contemplated by the lease, and also answers the position of the defendants’ counsel, that ejectment cannot be sustained. In a word we decide that the estate was corporeal and ejectment the proper remedy.” * * *
    “ In the succeeding spring of 1868, a bill was filed against Mr. Tanner, in bankruptcy, which continued till February 1869, when the proceedings were dismissed. I do not look upon this as being very material or controlling, as it was followed so shortly after-wards by a lease to Karns & Co., of the 25th June 1868. From that time the defendants, by their own act, entered and prevented further prosecution of the work by the plaintiff, Mr. Tanner; and they were estopped from further objections.
    “ How stands the matter ? [I do not think that the mere lapse of time in this ease affords a sufficient ground of forfeiture.] A forfeiture is not incurred upon slight circumstances, but requires evidence of sufficient grounds and made out by clear and satisfactory means.
    “[But although the mere lapse of time was in my opinion not sufficient to warrant a declaration of forfeiture or seizure of the premises, still if aided and strengthened by the acts and declarations of the tenant, Tanner, evincing an intention permanently to abandon, or to do so for any unreasonable time, it would justify the entry and forfeiture in proportion to the established facts and circumstances of abandonment. Of this the jury are the judges. There is therefore but one question for the jury, were there such acts and circumstances, or such unreasonable delay manifesting an abandonment, as justified an entry by Parker, and declaration of forfeiture. If the jury think so, the plaintiff cannot recover, but if not, the verdict should be for the plaintiff.”]
    The verdict was for the plaintiff, and the defendants took out a writ of error.
    They assigned for error :—
    1. The rejection of Fullerton Parker.
    2. Rejecting the offer to prove the reasons given by Homer for discharging Morgan.
    3. 4, 5 and 6. The answers to the defendants’ points.
    7,-.8 and 9. The parts of the charge in brackets.

      S. A. Purviance (with whom was J. Boggs), for plaintiffs in error.
    — It was for the jury to determine whether the time was sufficient to establish an abandonment: Youst v. Martin, 3 S. & R. 429. Forfeiture ensues on condition broken: Bacon’s Abr. Condition, 307-317; Hamilton v. Elliott, 5 S. & R. 375; Walls v. Hartley, 7 Wend. 210; Verplank v. Wylet, 28 Id. 506; Coldren v. Brownwelt, 1 Johns. R. 287; Coke Litt. 215. Entry is not necessary : Sheaffer v. Sheaffer, 1 Wright 525 ; Davis v. Moss, 2 Id. 346. As to what constitutes a condition: Bear v. Whisler, 7 Watts 144; Westenberger v. Reist, 1 Harris 596; Funk v. Haldeman, 3 P. F. Smith 229. A lessee out of possession must show performance of all his covenants : Kreutz v. McKnight, 3 P. F. Smith 319; Sugden on Vendors 246; Youst v. Martin, 3 S. & R. 429; Peebles v. Reading, 8 Id. 483. As to the rejection of Parker: Act of April 9th 1870, Pamph. L. 1605.

      E. S. Golden and W. F. Johnston (with whom was J. B. Neale), for defendant in error,
    referred to Act of April 15th 1869, § 1, Pamph. L. 30, Purd. 1566, pl. 1. Parker was the legal assignor of the plaintiff: 2 Black. Com. 3271; Bouv. L. Dict. 133; Act of April 26th 1850, § 4, Pamph. L. 591, Purd. 366, pl. 13; Act of 1870, supra. The declarations of an agent out of the scope of his agency cannot affect the principal: Eakman v. Sheaffer, 12 Wright 176. Tanner’s rights vested on the execution of the lease: Bortz v. Bortz, 12 Wright 382. The estate was a corporeal interest: Caldwell v. Fulton, 7 Casey 475; Hill v. Hill, 7 Wright 521; Chicago and Allegheny O. and M. Co. v. U. S. Petroleum Co., 7 P. F. Smith 83; Law v. Patterson, 1 W. & S. 184; McMahan v. McMahan, 1 Harris 383; Doe v. Bird, 11 East 49; Tyler on Ejectment 37, 39, 41, 42; Rex v. Arlesford, 1 Term R. 358; Nichols v. Lewis, 15 Conn. 137; Adams on Ejectment 19, 22; Ward v. Petifer, Cro. Car. 362; Wheeler v. Toulson, Hardress 330. The question whether the lease was forfeited was properly submitted to the jury: Youst v. Martin, 3 S. & R. 429; Gratz v. Beates, 9 Wright 495; Railroad v. Hagan, 11 Id. 248. The whole charge and the answers are to be taken together: Pierce v. Cloud, 6 Wright 102; Oakland Railway v. Fielding, 12 Id. 321. Forfeitures are odious and may be waived by silence; when waived they cannot again be asserted: Sharon Iron Co. v. Erie City, 5 Wright 342; McKnight v. Kreutz, 1 P. F. Smith 233; Lycoming Co. Ins. Co. v. Schollenberger, 8 Wright 259; Heil v. Strong, Id. 265. The forfeiture must be claimed at the time it occurs; there must be no indulgence: Forsyth v. Oil Co., 3 P. F. Smith 168; 18 Viner’s Abr. 482; Bacon’s Abr. Rent, H.; Com. Dig. Rent, D 5; McCormick v. Connell, 6 S. & R. 151; Newman v. Rutter, 8 Watts 51. The burden to prove a forfeiture was on defendants: Peachy v. Somerset, 1 Strange 447 ; Livingston v. Tompkins, 4 Johns. Ch. 433; 1 Mitford Eq. Pl. 186; Wigram on Discovery, § 130; 1 Maddock’s Ch. Pr. 173-4; 2 Story’s Eq. Jur., § 1494; Wrottesley v. Bendish, 3 P. Wms. 238.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— By an agreement of March 7th 1866 Fullerton Parker sold and conveyed to James P. Tanner, his heirs and assigns, all the oil and mineral rights and privileges to, on, in and under a certain parcel of land, for the consideration of $500, reserving one-fourth of all the oil to be obtained, and binding Tanner, under the penalty of a forfeiture of the lease, to commence operations within one year, and prosecute the same with reasonable diligence — the lease to continue for a term of fifty years. Tanner paid the consideration, and began operations in a few weeks after the date of the lease, and sunk an oil-well to the depth of 830 feet, expending for fixtures, engine, tools, labor, &c., about $4000. The well was pumped but seemed to be unsuccessful. This was done within the first year. Tanner became embarrassed and operations ceased. The engine, fixtures, &c., were removed by Homer (who drilled the well) in the spring of 1867. The premises then remained without further operations by Tanner until the 25th of June 1868, when Fullerton Parker, believing Tanner’s lease forfeited, leased the same premises to the Messrs. Earns & Co., parties to this suit. They entered into possession, drilled the well 30 feet deeper and obtained oil. Tanner was stricken with paralysis about a week after the second lease, and remained unfit for business till he died on the 13th of April 1869. This ejectmefit was brought by Tanner a few weeks before his death against Fullerton Parker and Messrs. Earns & Co., his lessees. After Tanner’s death a sheriff’s sale of his interest in the lease took place, and it was bought by Mrs. Frances E. Tanner, who was then substituted as plaintiff in this action. The main question on the trial was the alleged abandonment of the lease by Tanner and its forfeiture, on the ground that he had ceased to prosecute operations with diligence. The plaintiff, among other things, proved a conversation between Tanner and Parker in December 1867, to show that Tanner had not abandoned. On part of the defence Fullerton Parker was called as a witness to rebut the plaintiff’s case and was objected to, and was rejected by the court as incompetent. This is the chief question in the cause, and involves the true meaning of the 1st section of the Act of 15th April 1869, allowing parties interested to be witnesses. The act reads thus: “ No interest or policy of law shall exclude a party or person from being a witness in any civil proceeding: Provided, This act shall not alter the law as now declared and practised in the courts of this Commonwealth, so as to allow husband and wife to testify against each other, nor counsel to testify to the confidential communication of his client; and this act shall not apply to actions by or against executors, administrators or guardians, nor where the assignor of the thing or contract in action may be dead, excepting in issues and inquiries devisavit vel non, and others respecting the right of such deceased owner between parties claiming such right by devolution on the death of such owner.” The judge below held that Fullerton Parker was incompetent to testify under that clause of the proviso which declared that the act shall not apply “ where the assignor of the thing or contract in action may be dead.” This clause contemplates two things; the first, that the deceased party shall be the assignor of a thing or contract; the second, that this thing or contract shall be the subject of the action. In a precise sense then James P. Tanner, the deceased lessee of the premises, is not the assignor of Prances E. Tanner, for he was dead before his title passed ; and it passed by a sheriff’s sale by act of the law. He therefore did not assign. Again, the thing in action is the right to the possession of the premises leased, this being an action of ejectment, and the contract under which this right arises is the lease from Parker to Tanner. In that lease Parker is the lessor, and may be said to be the assignor to Tanner of the thing in action, and Parker is alive. As assignor to Tanner, he seems literally not to be within the prohibition of the proviso. Rut is this the true meaning of the proviso ? We think not. In giving to this law a proper interpretation we must recur to the evil intended to be remedied. Post v. Avery, 5 W. & S. 509, overturning Steele v. Phœnix Ins. Co., 3 Binn. 306, established the rule that a party making an assignment of his interest in the subject of the suit, to enable himself to testify for his assignee, is incompetent as a witness. This was confined to assignments termed merely colorable; but it led the way to a vast train of decisions, some of which went beyond the original case.

Thus in Graves v. Griffin, 7 Harris 176, a party to a contract, not the note in suit, and he not a party to the action, assigned his interest in the contract and was then offered by the defendants to prove that the plaintiffs had agreed that the note in suit should be applied in payment of his contract. It was held that by the doctrine of Post v. Avery and its successors, he was incompetent. Woodward, J., saying, “ though not a party to the record, he should have been excluded, whether his assignment was real or fictitious.” So it was held in Irwin v. Shumaker, 4 Barr 199, that a co-defendant who was a certificated bankrupt as to whom a nolle prosequi was entered, and who executed a release of any surplus to his assignees in bankruptcy, was incompetent on the score of policy. Other eases lie in these lines of decision, and hence it was said in Cambria Iron Co. v. Tomb, 12 Wright 394, that a party to the record is incompetent as a witness on the ground of policy has become too firmly fixed to be changed as a rule of practice, except by legislation. Many attempts were made to apply this remedy, but all failed until the Act of 1869 was passed. That act laid the axe to the root of the evil, by declaring that no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding. This is sweeping language, and was intended to reach every imaginable case. But the legislature knew that there were some exceptions that must be allowed, otherwise the law could not stand, for it would run counter to interests so sacred and a policy so clear, that public sentiment would not tolerate their sacrifice. The proviso therefore followed, which was evidently the product of two thoughts, one that there were certain confidential relations to be protected against compulsory disclosure, the other that there were certain cases of inequality where it would be unjust to open a door to one party, that was closed by necessity against the other. Hence the proviso declared that husband and wife should not be permitted to testify against each other; nor counsel to testify to the confidential communications of his client. This belongs to the first thought, the confidential relation. It then declared that the act should not apply to actions by or against executors, administrators or guardians, nor where the assignor of the thing or contract in action may be dead. This evidently came from the second thought, as to the inequality of the parties. Where one of two parties to a transaction is dead, the survivor and the party representing the deceased party, stand on an unequal footing as to a knowledge of the transaction occurring in the lifetime of the deceased. The enacting clause had opened the lips of all parties, but when death came it closed the lips of one, and evenhanded justice required the mouths of both to be sealed. In regard to one class we easily comprehend that a survivor ought not to be permitted to testify against the executor or administrator of his adversary, but as to the other class in the same clause, we do not so readily perceive what assignor it is, who being dead the proviso closes the mouth of the survivor. Evidently it is the true purpose of the proviso to close the mouth of him who is adversary to the deceased assignor. Here the current of former decisions tends to elucidate the meaning of the legislature. If, therefore, the holder of a note, bond or other contract should assign his interest to another, he was held to be incompetent to support the claim by his testimony against the opposite party in the instrument or contract. Hence although he had been stripped of all apparent interest by his assignment or by the operation of the bankrupt law, yet he could not testify against the adverse party. One of the reasons given by Woodward, J., in Graves v. Griffin, supra, is that whilst one of the parties to a contract in litigation is denied the privilege of testifying, the policy of the law is to close the mouth of the other, and this whether it relates to a claim of a plaintiff, or a set-off of a defendant. The true spirit of the proviso then seems to be that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or by that of the law, to another who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party, whose lips are now closed.

This intent is gathered also from the coupling of the provision for the assignor who is dead, with the provision for the case of an executor or administrator, evidencing that 'the legislature looked upon both cases as precisely alike. Another clue to the meaning is found in the exception to the proviso found in the last clause; excepting all “ issues and inquiries of devisavit vel non and others respecting the right of such deceased owner between parties claiming such right by devolution on the death of such owner.” Thus parties claiming under the same decedent, by the mere operation of the law devolving the estate upon them, as by descent or succession, are exempted from the prohibition of the proviso, in contrast to those who stand in adversary relation by reason of a subject of contract, one side of which has come from one of the original parties to the disputed subject.

The true intent of the legislature is further developed by the Act of 9th April 1870, declaring “ that in all actions or civil proceedings in any of the courts of this Commonwealth, brought by or against executors, administrators or guardians, or in actions where the assignor of the thing or contract in action may be dead, no interest or policy of law shall exclude any party to the record from testifying to matters occurring since the death of the person whose estate, through a legal representative, is a party to the record.” Here the terms “since the death of the person whose estate through a legal representative is a party to the record,” are striking, for both classes are linked together in the same clause, and the terms through a legal representative, applied to the case of a deceased assignor as well as to the case of an executor or administrator, evincing the intention of the legislature not to confine the term assignor to one who has by his own act merely transferred his title, but rather to treat the correlative term assignee just as the term assignees is oftentimes used, in a broad sense, including any one taking title by a sheriff’s sale, an Orphans’ Court sale, or even a devise under a will. Thus, in the present case, though Tanner died without making an assignment himself, yet he and Parker were the parties to the contest arising upon the lease, a contest now between Mrs. Tanner and Earns & Co. Mrs. Tanner now represents that side of the controversy which her deceased husband, and predecessor in the title, once represented. -Parker is the survivor of the parties to that controversy, and liable to his second lessees on his covenants in his lease, as well as entitled to one-eighth of the oil to be derived from it. If he be admitted to testify to matters occurring in the lifetime of Tanner, between him and Tanner, it is obvious the very case in the view of the legislature would arise and he would hold a position of advantage which would be unfair to Mrs. Tanner, who knows nothing of the transactions between them, and. must therefore suffer from any one-sided narration he might give. We think the court committed no error in excluding Parker as a witness.'

The remaining assignments of error need no extended notice. The court properly rejected Homer’s declarations, so far as they were offered to impute to Tanner an intention to abandon the lease. Homer was only employed to operate for oil, and no authority beyond this was shown. Having drilled 830 feet, and pumped unsuccessfully, he might well suppose the prospect of finding oil bad, and quit work and discharge the hands. But this gave him no authority to commit Tanner to an abandonment of his lease. Tanner had paid $500 for the lease, and though not willing to operate further himself, and might even sell his engine, derrick and tools, and yet be desirous of selling out to assigns, as the terms of the lease permitted, or of operating through an under tenant, who would supply the machinery, &c. Having, expended $4500 in the undertaking, it is not very probable he would abandon the lease voluntarily and lose everything. Now without very clear authority to Homer to commit him to such an abandonment, the evidence of Homer’s declarations would be clearly incompetent.

In regard to the forfeiture, as the work had been begun promptly and prosecuted diligently, at great expense, to the depth of 830 feet, and as the whole question as put to the jury was one of due diligence after that, and depended on a variety of circumstances, it was clearly one of fact for the jury. Abandonment of the lease was a question of intention, and was to be determined only on an investigation of facts. The court was right, therefore, in submitting it to them.

The other question, whether ejectment was the proper remedy, was placed in the argument upon the ground that the right conferred by the lease was incorporeal, and not the subject of this action. But the question as to the nature of the interest vested by the lease is not necessary to the decision of the right to maintain ejectment in this case. This is an action brought for wrongful ouster from actual possession, as it is alleged.

By the terms of the lease Tanner was entitled not only to the right of boring for oil and mining, but “ to hold, occupy, use and enjoy with this right, and also the right of way, the rights and privileges for the purpose of prospecting, boring, mining, drifting or otherwise operating for oil, coal and other minerals,” and with the further right to erect and maintain all buildings and machinery necessary and convenient therefor, and to renew the same at pleasure.” Now in order to bore for oil and to pump and take the oil, it is well understood that the party must have the actual possession of so much land as is necessary for his engine-house, derrick, tanks and machinery, and to operate them conveniently ; and this possession must continue so long as the party draws oil from the well. The evidence is clear that Tanner had gone into actual possession under the lease, and had been operating there. If his lease had not been forfeited, it is clear that the entry on him by Parker’s second lessees was wrongful. It was in just such a case, and under a writing that was clearly nothing but a license, it was stated by Justice Strong as the opinion of the court in Dark v. Johnston, 5 P. F. Smith 170, that an entry upon the tenant was unlawful, and we should feel ourselves justified in sustaining an ejectment to restore a possession unlawfully taken away. The authorities cited by the defendant in error lead in the same direction. The possession taken under the lease was actual though qualified, but still essential to prosecute the purposes of the lease, and when given to effectuate even incorporeal rights is still a substantial possession, and therefore the proper subject of this remedy by ejectment; otherwise a party might be actually ejected from a valuable oil-well or mine, with no remedy for the injury but the unsatisfactory valuation of a jury of his damages for lights prospective as well as present. Possession to a qualified extent is essential to the enjoyment of his rights, and the law therefore must restore him to his actual place on the land, and this can be done only by an ejectment.

Upon the whole case finding no error, the judgment is affirmed.


source: Caselaw Access Project

author: Sharswood, J.

license: Public Domain

text:
    Armor et al. versus Cochrane et al.

    1. An intestate died leaving real estate and children; a daughter after-wards married, her husband’s interest in her share was sold by the sheriff; the land was divided, valued and ordered to be sold under partition; it was struck down to one of the sons, afterwards all but the daughter agreed that one tract should be conveyed to the administrator; specific execution by the heirs of the purchaser nineteen years afterwards, was decreed to the administrator. The daughter died, the husband died fourteen years after the decree; within five years of the death of the husband, the heirs of the daughter brought ejectment for her share. Held, that they could not recover, those claiming under the administrator not being affected with a trust.
    2. When an administrator, &c., desires to bid, he should obtain leave . from the court or have some other person appointed to sell under Act of February 24th 1834, $ 44. ,
    October 27th and 28th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Westmoreland county : No. 98, to October and November Term 1870.
    This was an action of ejectment by William Armor and others, children and heirs of Jane Armor, late Cochrane, deceased, against John Cochrane and others, brought January Í2th 1869, for an undivided eighth part of 270 acres of land.
    John Cochrane, the elder, died in 1816, leaving eight children, amongst whom were John, William and Jane. The decedent died seised of two tracts of land — one containing 187 acres; the other, 83 acres, being the premises in controversy. Jane Cochrane married John Armor in 1819. In 1829 John Armor’s life estate, as husband of Jane, in her father’s real estate, was sold by the sheriff to John Cochrane. In October 1830 an inquest jn partition in the Orphans’ Court, on John Cochrane’s estate, valued, the large tract at $10 per acre, and the small tract at $16 per acre. On the 26th of February 1831 all the children but William, who was the administrator, appointed him their attorney, to refuse the real estate at the valuation, and to do all things necessary to procure an order of sale. The inquisition was confirmed March 3d 1831, and a sale, by William, ordered to be made April 11th 1831. He returned that he had sold the land to John Cochrane— the large tract at $9 per acre, $1689.75; the small tract, $13 per acre, $1055. The sale was confirmed May 23d 1831, and the deed made by William as administrator, to John, August 24th 1831. John died in 1844.
    At February Term 1848 William presented a petition to the Orphans’ Court, setting forth that on the 4th April 1831, he, John, Samuel and James, “heirs of John Cochrane, the elder, deceased, agreed together and the rest of the heirs afterwards assented and agreed thereto,” that the whole of the land of the decedent should be bid off and returned as sold to John at a price then agreed to by the heirs, and that a deed should be made to John, that he sold and conveyed the land to John at the prices above stated; that John did, by parol, bind himself to sell and convey to William 81 acres of the lands sold: the prayer was for a •specific execution of John’s contract, which was decreed February 3d 1850, and a deed made to William. Jane died in 1859; her husband died in 1864.
    Samuel Cochrane, one of the heirs, testified that the heirs were notified of the sale, and all were present except Mr. and Mrs. Armor, who lived at some distance; it was understood John was to purchase the place; there was no agreement except that John was to bid it off; no price fixed till after it was bid off; the price was fixed after it was knocked down; John was to convey to William the 81 acres; William was to pay the witness and James; John was to pay the girls — two of them bid; the sale was cried for an hour.
    The plaintiff then offered in evidence the deposition of Samuel, taken under the proceedings for specific performance, in which, in testifying as to the agreement, he said that it was between John and William, by it John was to bid off the whole place at a price agreed upon — $9 and $13 per acre for the respective tracts — and it was struck down to John in pursuance of the agreement.

      The offer was rejected by the court, and a bill of exceptions sealed for the plaintiff.
    There was no actual fraud alleged. The plaintiffs claimed on the ground that William, the administrator, being a purchaser at his own sale, there was legal fraud. The defendants claimed under William and John Cochrane.
    On motion of the defendants, the court ordered a nonsuit; this and the rejection of their offer of evidence were assigned for error on the removal of the case to the Supreme Court, by the defendants.

      F. Cowan, for plaintiffs in error.
    — Jane’s heirs had ten years after their father’s death to bring suit: Henry v. Carson, 9 P. F. Smith 297. The cestui que trust may take the land, however fair the sale, to the trustee-: Ex parte Lacey, 6 Yesey 625; Ex parte Bennett, 10 Id. 381; Fisk v. Sarber, 6 W. & S. 22; Leisenring v. Black, 5 Watts 304; Beeson v. Beeson, 9 Barr 280. For laches to operate, it must appear that the cestui qui trust knew of the fraud: Randall v. Errington, 10 Yesey 423; Campbell v. Walker, 5 Id. 678; S. c., 13 Id. 602; Roche v. O’Brien, 1 Ball & B. 330; Lewin on Trusts 475. As to rejecting the evidence: Bull v. Towson, 4 W. & S. 557.

      H. D. Foster (with whom were H. C. Marchand and A. A. Stewart), for defendants in error.
    — The proceedings in the.Orphans’ Court were conclusive: Gilmore v. Rodgers, 5 Wright 123 ; Dixcy v. Laning, 13 Id. 143. The delay was too great: Kribbs v. Downing, 1 Casey 399 ; Strimpfler v. Roberts, 6 Harris 283. Declarations of trust must be in writing: Act of April 22d 1856, § 4, Pamph. L. 533; Purd. 497, pi. 3; Warfield v. Fox, 3 P. F. Smith, 382.
   The opinion of the court was delivered, January 3d 1871, by

Sharswood, J.

— This was a compulsory nonsuit entered in the court below, on ¡motion of the defendants, after the conclusion of the evidence of the plaintiffs. The question then is, whether the plaintiffs had made out a case which in any aspect entitled them to go to the jury ? No actual fraud was pretended. But it was maintained that as it appeared that William Cochrane, the administrator of John Cochrane, Sr., had become the purchaser at his own sale, made by the order of the Orphans’ Court, his title and that of his heirs were defeasible at the election of any of the cestuis que trust who did not agree or assent to the purchase. It is not necessary to decide whether, when one of the heirs of a decedent, who happens to be also the administrator, is ordered by the Orphans’ Court to make sale of the real estate under proceedings in partition, he is thereby precluded from his equal right ■with all the other heirs of bidding at, and becoming a purchaser at the sale. It may be doubted whether the doctrine of Fisk v. Sarber, 6 W. & S. 18, does not apply. The administrator, as such, has nothing to do with the realty; he is the mere organ of the court in making the sale, and it is possible that he ought not to be regarded as in any sense a trustee until the purchase-money has been received by him. But in reference to this we intimate no opinion. It would of course be advisable in all such cases, if the administrator has any wish to be a bidder, either that an" order should be obtained from the court allowing it, or that application should be made for the appointment of some other suitable person as trustee for the purpose, under the 44th section of the Act of February 24th 1834, Pamph. L. 81, which' the court has authority to make whenever the executor or administrator refuses to execute the order. In this case, however, upon the plaintiffs’ own evidence, although there may have been some understanding among the heirs before the sale that William was to become the purchaser of one of the properties, and John of the other, yet according to the clear testimony of Samuel Cochrane, the only witness produced and examined, the agreement was not made until after the sale, at which the whole was knocked down to John Cochrane. He said : “ No particular agreement except that John bid off the land; no price fixed until it was bid off; the agreement was fixed after it was knocked down.” And again: “John Cochrane claimed Armor’s share; were notified of the sale, that it would be sold on this day; two of my sisters bid on it“ the land was cried for an hour.” The sale was confirmed by the Orphans’ Court, and the deed made accordingly by William Cochrane to John Cochrane for the whole, August 24th 1831. Nearly nineteen years afterwards, on petition to the Orphans’ Court, William Cochrane obtained a decree for the specific performance of this parol contract, John Cochrane being then deceased. It was certainly competent for William, after the sale, to purchase from John — no actual fraud or deterring of bidders at the sale being pretended. The thing was evidently an amicable arrangement and understanding among all the heirs, Mrs. Armor > included, as appears by the petition of William Cochrane to the Orphans’ Court, which is a part of the testimony produced by the plaintiffs. That neither she nor her husband were at the sale is accounted for by the fact that his curtesy estate in her purpart had been sold by the sheriff and was vested in John Cochrane. We see no evidence, therefore, to affect the heirs of William Cochrane with any trust for Mrs. Armor or her heirs as to this land.

The deposition of Samuel Cochrane was clearly inadmissible. The witness himself was on the stand under examination. What he had stated before could not be shown, as it seems, for any purpose. What the deposition was offered for does not appear. He had at the time testified to nothing which the deposition touched upon, and if he had, the plaintiffs could not contradict and impeach their own witness. But even if admitted, it would not have helped the plaintiffs’ case. It is plain that in the proceeding in which that deposition was taken, it was not material at what point of time, whether before or after the property was struck off, the agreement was entered into; and it is, after all, mere inference from the general language used in the deposition that the witness then stated it to be before and not after the sale.

Judgment affirmed.


author: Williams, J.

text:
    Lewis's Appeal.
    1. A lessor died during the term having devised the premises to his wife for life. Held, that she might distrain for rent in arrear under the lease.
    2. She was consequently entitled to receive the rent due from the proceeds of sheriff's sale of tenant's goods on the premises, although the term had expired and the tenant was holding under a new lease from herself.
    3. The landlord's right to receive his rent from a sheriff's sale depends upon his right to distrain the goods sold.
    4. The landlord may distrain whenever the rent is in arrear and he retains the title.
    5. The landlord’s right to distrain is without limitation as to time.
    October 28th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Appeal from the decree of the Court of Common Pleas of Indiana county: No. 211, to October and November Term 1870. In the distribution of the proceeds of sheriff’s sale of the personal property of James W. Mahan.
    On the 25th of February 1868, Henry Kinter leased a tavern to Mahan for one year from the first day of the following April, at the rent of $475, payable quarterly. ’ Henry Kinter died in September 1868, devising the tavern to his wife Catharine for life. There was a receipt without date on the lease, by one of the executors, for $160, “ leaving a balance due on 1st and 2d quarterly payments of $44.”
    On the 17th of February 1869, the widow leased the same premises to Mahan for one year from the next 1st of April, at the rent of $475, payable quarterly. The amount due April 1st 1869 to the widow under the lease to her husband and the devise was for three quarters, or $356.25. Executions, one at the suit of William Sims, for $475, were issued against Mahan, and his goods levied on. Up to the day of sale, December 17th 1869, various payments had been made to Mrs. Kinter, and on that day she gave the sheriff notice that there was due to her for rent in arrear the sum of $243.26, wbicb was in fact less than was due to her. Tbe proceeds of tbe sheriff’s sale were brought into court. Tbe auditor to whom tbe distribution was referred, awarded $243.26 to Mrs. Kinter, and after awarding tbe amount due on another execution and costs, reported $39.89 to Lewis. Tbe Court of Common Pleas confirmed tbe report.
    Lewis appealed to tbe Supreme Court, and assigned tbe decree of confirmation for error.

      J. M. Thompson (with whom was D. S. Porter), for appellant.
    None but tbe immediate landlord is entitled to rent from tbe proceeds of a sheriff’s sale: Bromley v. Hopewell, 2 Harris 400; Comm’th. v. Conter, 9 Id. 266; Greider’s Appeal, 5 Barr 422.

      H. W. Weir (with whom were Taylor & Morehead), for appellee.
    The wife was entitled to tbe rent of the first year as reversioner: Coke Litt. 47 a, 143 a, 3 Bacon’s Ab. 62, 63; Johnson v. Smith, 3 Penna. R. 500; Bank of Penna. v. Wise, 3 Watts 404; Woodfall Land. & T. 305, 2 Black. Com. 41, 42; 3 Kent’s Com. 469. Rent is never apportioned in respect to time: Clem’s Case, 10 Rep. 127; Jenner v. Morgan, 1 P. Wms. 392; Hay v. Palmer, 2 Id. 502, Litt. § 222; Gilbert on Rents 152, 163, 164; Co. Litt. 147 b, 148 a. Distress may be taken for any kind of rent in arrear: 3 Black. Comm. 6 Coke Litt. 214. The landlord’s right to bis rent from tbe proceeds of sheriff’s sale depends on his right to distrain tbe goods levied on: Moss’s Appeal, 11 Casey 162; Rowland v. Goldsmith, 1 Am. Law Reg. 632; Parker’s Appeal, 5 Barr 393; West v. Sink, 2 Yeates 274; Binn v. Hudson, 5 Binn. 505; Morgan v. Moody, 6 W. & S. 333; Collins’s Appeal, 11 Casey 83; Ege v. Ege, 5 Watts 134; Wickey v. Eyster, 8 P. F. Smith 501.
   The opinion of tbe court was delivered, January 3d 1871, by

Williams, J.

— By a devise of tbe reversion the rent with its incidents passes to tbe devisee, and consequently tbe appellee became entitled to tbe rent of tbe demised premises, devised to ber for life, which fell due after ber husband’s death, and she might have distrained for it as incident to the reversion. It is true, that at common law distress for rent was allowed only during a subsisting tenancy, but tbe remedy by distress was extended by tbe Statute 8 Anne, cb. 14, wbicb provided that if a tenant retained possession of tbe estate after tbe expiration of bis tenancy, the landlord, if bis interest continued, might distrain within six months for tbe rent due and unpaid. The right of distress was further enlarged by our Act of tbe 21st March 1772, wbicb declares that “ it shall and may be lawful for any person or persons having any rents in arrear, or due upon any lease for life or lives, or for one or more years, or at will, ended or determined, to distrain for such arrears, after the determination of the said respective leases, in the same manner as they might have done if such lease or leases had not been ended or determined — provided, that such distress be made during the continuance of such lessor’s title or interest.” There can be no doubt of the appellee’s right, under the provisions of this act, to distrain the goods of the tenant on the demised premises, at the time of the sheriff’s sale, for the arrears of rent which accrued under the original lease, after her husband’s death, notwithstanding the expiration of the term and the subsisting tenancy under the new lease. And, therefore, she was entitled, under the Act of 1836, to payment out of the proceeds of the sheriff’s sale. The landlord’s right to be paid out of the proceeds of sale, as ruled in Moss’s Appeal, 11 Casey 162, depends on his power to distrain on the goods sold; and a landlord having power to distrain, after the determination of the term, is entitled to payment out of the proceeds of a sheriff’s sale of goods found on the premises, under an execution against the lessee. His right to distrain, after the termination of the term, is without limitation as to time; the statute gives him this right whenever the rent is in arrear, and he retains the title. It follows that the court below was clearly,right in decreeing the payment of the arrears of rent in controversy out of the proceeds of sale for distribution.

Decree affirmed at the costs of the appellant.


text:
    Campbell versus Stephens.
    1. Stephens died seised of land, Thomas, one of his sons and heirs, having been long absent and unheard of; the others assuming his death,sold the land, the vendee sold to Campbell, who to extinguish the title of Thomas instituted proceedings in partition, took the land at the appraisement and entered into recognisance to Thomas. In a suit on the recognisance, Held, that Campbell was estopped from setting up that Thomas was dead when it was given.
    2. Campbell paid all the purchase-money to his vendor, except the amount of the recognisance to Thomas; the suit on the recognisance was in the name of Thomas to the use of Campbell’s vendor. The court charged that the person designated in it need have no interest in the fund as the money is to be paid under the order of the court, the recognisance may be moulded as the court may decree. Heldnoi to be error.
    October 28th 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Armstrong county: No. 70, to October and November Term 1870.
    This was a scire facias sur recognisance in the Orphans’ Court, by Thomas Stephens, to the use of Peter Byers, against James Campbell, John Mortland, B. Wilt and William Colwell.
    Under proceedings in partition in the Orphans’ Court, the real estate of Ephraim'Stephens, who had died in 1837, was, on the 5th of September 1859, decreed to James Campbell and John Mortland, alienees of Peter Byers, the alienee of Robert Stephens, who had purchased the interest of all the heirs of the decedent, except a son, Thomas Stephens. On the same day Campbell and Mortland, with the' other two defendants as their sureties, entered into a recognisance to Thomas Stephens, in the sum of $251.53, conditioned for the payment to Thomas of $125.76 in one year, with interest, and the further sum of $62.88 on the death of the widow of the decedent.
    After Byers became owner of the land he sold to Campbell, securing $2738.40, part of the purchase-money, in three annual payments, by a judgment-bond, dated March 27th 1857. To show this part of the transaction between Campbell and Byers, the plaintiff gave in evidence, under objection and exception, deed August 14th 1837, E. Stephens’s heirs to Robert Stephens ; deed February 12th 1840, R. Stephens to Peter Byers; deed February 13th 1857, Byers to Campbell; also the record of the entry of judgment on the bond, execution issued on it and entry on the record, of the payment, July 11th 1861, of the balance in full. He also gave in evidence a statement made at the time the parties settled, showing that from the balance due on the bond there had been deducted this recognisance, as being a lien on the land and still payable to Thomas. Thomas had been absent and unheard of for a long time before his father’s death; Byers, his predecessor, Robert Stephens, and Campbell, his alienee, had held adverse possession of the land for much more than twenty-one years. Campbell refused to pay the whole of the purchase-money on account of the recognisance, and Byers claiming that he had owned and conveyed to Campbell the interest of Thomas in the land, brought this scire facias in the name of Thomas to his own use, that he might thus secure the balance of the purchase-money due him, under his contract with Campbell.
    The case being given in detail in the opinion of Judge Williams, no further statement is necessary.
    The defendants’ points and the answers were:—
    “ 1. The evidence of the defendants in this case is amply sufficient to raise a presumption in law of the death of Thomas Stephens before this suit commenced, and no sufficient evidence on the part of the plaintiff having been given to rebut such presumption, the plaintiff cannot recover, and the verdict must be for the defendant.”
    Answer: “ Perhaps, under ordinary circumstances, where suit was brought between creditor and debtor, this point would be answered in the affirmative. But the defendants themselves having given this recognisance under the decree of the court, and at their own suggestion and insinuation to the court, it is not now competent for them to dispute it. Furthermore, the person designated in the recognisance need have no interest in the fund; and as the money is to be paid under the order and decree of the court, the recognisance may be moulded as the court may decree or recognise. The point is therefore answered in the negative so far as this case is concerned.”
    “ 3. Under the whole evidence in this case, the verdict must be for the defendants.”
    Answer: “ This point is answered in the negative.”
    The verdict was for the plaintiff for $303.15.
    The defendants took a writ of error.
    They assigned for error the answers to the points and the admission of the evidence excepted to.

      D. Barclay (with whom was B. Fulton), for plaintiff in error.

      J. Boggs (with whom was W. F. Johnston), for defendant in error.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— This case is novel in some of its aspects. Ephraim Stephens moved to Franklin township, Armstrong county, in 1826, and died seised of a tract of land in said township, containing about 178 acres, sometime before the year 1837, leaving a widow and nine children surviving. He had another son, Thomas, who was never heard from after the family moved to Franklin. By his will, which was defectively executed, he devised the land to his son Robert, to whom his brothers and sisters, in order to carry “ into full effect the wishes of their deceased father,” conveyed it by deed, bearing date the 14th of August 1837. In this deed the parties are recited as “ being the only heirs and legal representatives” of Ephraim Stephens, deceased. Robert Stephens, by deed, dated the 12th of February 1840, conveyed the land to Peter Byers, who sold it by articles of agreement, bearing date the 13th of February 1857, to James Campbell, one of the defendants below, for the consideration of $3458.40, payable in annual instalments — the last of which was payable on the 1st of April 1860 — at which time Byers covenanted to make Campbell a good and indisputable title. It appears that Campbell objected to the payment of the whole purchase-money, unless some proceedings were had to divest the possible outstanding title in Thomas Stephens; and, for this purpose, he and Byers presented a petition to the Orphans’ Court of Armstrong county, setting forth that Ephraim Stephens died intestate, leaving surviving him a widow then residing in the state of Iowa, and ten children, to wit: William, James, et al., of all of whom the said petitioners are alienees, and Thomas Stephens whose residence is unknown, and it is also unknown to your petitioners whether he is alive or dead; and, after describing the land of which the intestate died seised, they prayed the court to award an inquest to make partition of the premises, &c.

A writ of partition or valuation was thereupon issued, in pursu-> anee of which the land was appraised, and, on the 5th of September 1859, taken by Campbell at the appraisement made by the inquest. On the same day, he and his co-defendants entered into a recognisance by which they became bound unto Thomas Stephens in the sum of $251.53, conditioned for the payment of $125.76 within twelve months of the date thereof, and the further sum of $62.88 on the death of the widow. She died in 1861, and the scire facias on the recognisance was issued in this case, in 1867, in the name of Thomas Stephens, as plaintiff, for the use of Peter Byers against the plaintiffs in error, the defendants below. On the trial the defendants gave evidence of the declarations of Ephraim Stephens that his son, Thomas, went away before he moved to Armstrong county; and that he had not been heard from for over forty years; and requested the court to charge the jury that the evidence of the defendants in this case is amply sufficient to raise a presumption in law of the death of Thomas Stephens before this suit commenced, and no sufficient evidence on the part of the plaintiff having been given to rebut such presumption, the plaintiff cannot recover and the verdict must be for the defendant. The court answered this point as follows: “ Perhaps under ordinary circumstances, where suit wras brought between creditor and debtor, this point would be answered in the affirmative. But the defendants themselves having given this recognisance, under the decree of the court, and at their own suggestion and insinuation to the court, it is not now competent for them to dispute it. Furthermore, the person designated in the recognisance need have no interest in the fund, and as the money is to be paid under the order and decree of the court, the recognisance may be moulded as the court may decree or recognise. The point is therefore answered in the negative, so far as this case is concerned.” We are of the opinion, under the facts of the case, that the court rightly refused to affirm the defendants’ point. There was no evidence that Thomas Stephens was living at the time the defendants entered into the recognisance, and the legal presumption, arising from the evidence, is that he had been for a long time dead. When Campbell instituted the proceedings in partition he knew, as the petition shows, that Thomas Stephens had not been heard from for years, and he instituted the proceed* ings for the purpose of protecting himself against the claim he might have in the improbable event of his being alive. Though dead in legal presumption, the defendant elected to treat him as still living, in order that he might acquire whatever semblance of title he had by the proceedings in partition; and he became bound in the recognisance with his co-defendants, as sureties, in order that he might extinguish any possible title that he might have, and acquire it for himself. He was permitted by Byers to retain the amount of the recognisance out of the purchase-money in order that he might pay it to Thomas, in satisfaction of the recognisance, if living. The whole proceeding was a contrivance of the parties for the purpose of giving Campbell “ a good and indisputable title” to the land, and protecting him from loss in any event; and it has answered its purpose. Under the deed from Byers, and the proceedings in partition, he has an unquestionable title to the land, whether Thomas is living or dead; and if it were not so, he has a good and valid title under the Statute of Limitations by an uninterrupted adverse possession of the land by himself and Byers for a period of more than twenty-one years. What right or equity then has he to retain longer the purchase-money and refuse to apply it in satisfaction of the recognisance ? He has been permitted to retain it as long as there was any possible apprehension of a claim to it on the part of Thomas. But now that it is certain that he never had any claim to it, he seeks to hold both the land and the money; and he sets up as a defence to the action the legal presumption that Thomas was dead when the recognisance was given, and being dead, that no action can be maintained on it in his name. But as he elected to treat Thomas as living when he instituted the proceedings in partition and gave the recognisance, the law will hold him to the fiction, and treat Thomas as still living, for the purposes of this action, in order to compel the defendant to pay what he justly owes. Under the facts of this case he is estopped in equity from setting up the legal presumption of Thomas’s death as a defence to the action, and the court below rightly refused to permit him to do it.

There is nothing in any of the other assignments of error that requires to be noticed. The evidence complained of was properly admitted, as it tended to show the real nature and purpose of the proceedings, and the relations of the parties to each other in the transaction.

Judgment affirmed.


author: Thompson, C. J.

text:
    Lane versus Harrold.
    1. In practice ejectment is our mode of trying title as well as the right of possession.
    2. If there he a disclaimer by the defendant of title and possession, and the plaintiff proceeds for costs and damages, the only point of contest is the possession of the defendant.
    3. If possession be established against the defendant notwithstanding the disclaimer, he will be subject to costs.
    4. In ejectment the defendant pleaded “not guilty;’’ when the case was called for trial she disclaimed title to all but an undivided fourth of the land; the judgment was for the plaintiff for three-quarters and for the defendant for one-quarter. Reld, that the plaintiff should recover his costs to the time of the disclaimer and the defendant her costs afterwards.
    5. After disclaimer the plaintiff might have taken judgment for the part disclaimed and had his costs to that time.
    6. After the disclaimer the contest was for one-quarter, in which the plaintiff having failed, was liable for costs under Stat. Jac. 1, cap. 3.
    October 28th 1870.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Westmoreland county: No. 179, to October and November Term 1870.
    This was a question of costs in an action of ejectment, which was commenced, July 29th 1865, by Henry Lane against Bennett Lane and Elizabeth Harrold.
    On the 9th of October 1866, arbitrators awarded for the plaintiff; the defendants appealed and pleaded “Not guilty.” The case being on the trial list, May 24th 1866, Lane disclaimed any title in the land. Same day Elizabeth Harrold filed a plea taking defence for an undivided fourth part of the land and disclaimed title to the residue; the verdict was for the plaintiff, and judgment was entered on the verdict. The judgment was reversed by the Supreme Court, and a venire de novo awarded. The case was again tried November 20th 1867, and verdict rendered for the plaintiff for the undivided three-fourths of the land and for the defendant for the undivided one-fourth. The case was removed to the Supreme Court and affirmed November 1st 1869.
    The prothonotary having taxed costs to each party, both parties appealed.
    The court ordered that “ the defendant pay all the costs prior to the disclaimer, and at the term it was first tried, subsequent to said disclaimer, the plaintiff would not be entitled to costs, but the defendant would be entitled to recover costs of the plaintiff.” In pursuance of this order the prothonotary taxed the costs as follows: — “Defendants to pay plaintiff’s bill of costs at May Term 1866; plaintiff to pay defendants’ bills of costs at May and November Terms 1867, &c.”
    On a writ of error, the plaintiff assigned for error:—
    1. Not allowing the plaintiff to recover the whole amount of his bills of costs as taxed by the prothonotary.

      2. Allowing the defendants to recover from plaintiff their hills of costs of May and November Terms 1867.

      H. P. Laird (with whom was H. C. Marchand), for plaintiff in error,
    cited Stat. 6 Edw. 1, cap. 1; Roberts’s Digest 107; 4 Jac. 1, cap. 3; Id, 130; 8 & 9 William 3, cap. 11; Id. 139; Steinmetz v. Logan, 3 Watts 162; Zeigler v. Fisher, 3 Barr 365; Mitchell v. Bratten, 5 Watts 69 ; Kirkpatrick v. Vanhorn, 8 Casey 131; Gill v. Gill, 1 Wright 312; Tripner v. Abrahams, 11 Id. 220; Allen v. Flock, 2 Penna. R. 159; Helfenstein v. Leonard, 14 Wright 461.

      F. Qowan and R. L. Foster, for defendant in error.
   The opinion of the court was delivered, January 3d 1871, by

Thompson, C. J.

— In the text-books the action of ejectment rates merely as a possessory action, but in practice with us, it is more; it is our mode of trying title as well as the right to possession of lands and tenements. As these two elements may in a certain state of the record be severed partially or generally, and if so tried, it is sometimes a question of difficulty as to what is really the condition of parties in regard to costs incident to a verdict under such circumstances. This severance may be effected by a disclaimer of title and possession by a defendant. This, of course, leaves but a single point of contest, if the plaintiff chooses to proceed for costs and damages, viz.: the fact of the possession of the defendant. This the plaintiff may do by compelling the defendant to plead the general issue or by putting in the plea himself and proceeding to trial: Bratton v. Mitchell, 5 Watts 69. If this fact be established against the defendant notwithstanding the disclaimer, he will be subject to the costs of the action, but the authorities on the point agree, that if the result be the other way, the plaintiff will not be entitled to costs: Kirkland v. Thompson, 1 P. E. Smith 216; Hill v. Hill, 7 Wright 525; Tripner v. Abrahams, 11 Id. 230. But in such a contingency, will the defendant be entitled to tax his costs ? That is the question now for adjudication.

It appears in this case, that the defendants at first took a general defence by a plea of “not guilty,” but afterwards disclaimed title as to all the land described in the plaintiff’s writ excepting the one undivided fourth part of it, and there was a verdict on the trial in favor of the plaintiff for the undivided three-fourth parts of the land described, and in favor of the defendants for the remaining one undivided fourth part. This was exactly according to the disclaimer. It was a finding, that the defendants had not possession of any more, or greater proportion of the lands sued for than that for which the defence was taken. Under this finding, the plaintiff claims full costs as' incident thereto, notwithstanding the defendants’ disclaimer and the establishment of the facts in accordance therewith; and the defendants claim costs subsequent to the disclaimer. The court below held with the defendants, and overruled the plaintiff’s taxation of costs subsequent to the disclaimer, and in this we think it was right.

We have no other statute on this subject directly applicable, excepting that of 4 Jac. 1, cap. 3, reported to be in force in Pennsylvania. It is there provided that in all actions of trespass, ejectione firmes, and other actions, real and personal, therein referred to, “whenever the plaintiff or demandant might have recovered costs, in case judgment should be given for him, and the plaintiff or plaintiffs, or demandant or demandants * * * be nonsuited, or that any verdict happen to pass by any lawful trial against the plaintiff or plaintiffs, * * * then the defendant or defendants, in any such action, bill or plaint, shall have judgment to recover his costs against any such plaintiff or plaintiffs, or demandant or demandants, to be assessed, taxed and levied in manner and form as costs in said recited act, 23 Hen. 8, cap. 15, are to be assessed, levied and taxed:” Rob. Dig. 129. After disclaimer of title and possession in this case, the plaintiff- might have taken judgment for the part disclaimed, and had his costs up to the disclaimer. But he chose to proceed further, and then the contest was for the one-fourth of the land, for which defendants took defence. It was essentially, thereafter, an action for this portion of the land. In this the plaintiff failed and the defendants succeeded. By a fair interpretation of the statute, we think the defendants were entitled to their costs. The plaintiff had a verdict against him on his claim for the land in contest, and is within the spirit of the act, if not within its precise terms, and ought to pay costs. This I regard as largely within the practice in this state, if not wholly so, and so we understood it in Tripner v. Abrahams, 11 Wright 220. The defendants were entitled to their costs, having recovered a verdict and judgment in their favor.

Judgment affirmed.


text:
    Gilmore versus Hunt’s Administrator.
    1. Gilmore agreed to convey coal-land,, &c., to Hunt, part of the consideration to be paid in notes; in a suit on the notes Hunt gave evidence by way of set-off that Gilmore refused to give him possession, &c., and he had to obtain it by ejectment. The court charged: “If the jury find from the evidence that Gilmore violated his part of the agreement by refusing to allow Hunt possession, they may assess such damages as the evidence would warrant.” Held to be error.
    2. Such instruction was a misdirection not a mere omission.
    3. The measure of damage in such case is the amount of rent or profit that Hunt might derive from the property from the time, he should have had possession until he obtained it under the ejectment.

      4. Such damage would be the mesne profits.
    5. The court should hold the jury to the strict legal rule with a firm hand, by setting aside the verdict whenever they disregard it.
    October 31st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No.. 21, to October and November Term 1869.
    This was an action of assumpsit, to April Term 1854, by John Gilmore against David Hunt on three promissory notes. The defendant pleaded, by way of set-off, that the notes had been given as the consideration of an agreement that the plaintiff should convey to the defendant his undivided moiety of a tract of coal-land, with the appliances for working, &c., of which the parties were joint owners, and that the plaintiff had-refused to give possession, and to comply with the contract, &c.
    The case was tried, December 3d 1855, before Hampton, P. J.
    The plaintiff gave in evidence, as his claim, three notes from defendant to him, dated February 11th 1848, each for $183.33, and payable respectively in two, four and six months.
    The defendant gave in evidence an agreement, made the 21st day of January 1848, between Hunt and Gilmore:—
    “ That whereas the said parties are tenants in common of a certain tract of land, &c., on which there is a coal-bank now in operation, with a railway and sundry buildings erected thereon, &c.

      “ Whereas, also, in the course of their business sundry debts have been contracted, for which judgment has been obtained, and upon execution thereupon inquisition has been held this day by the sheriff of Westmoreland county, and the said property has been extended to pay the debts in seven years; whereas, also, it is believed by the said parties that it is their mutual interest to dissolve the partnership and that the said coal-bank, land and concerns generally should be concentrated in one of them, for the purpose of making the best avail of the property for the payment of the said debts, by the said party of the second part taking the whole into his hands, under the extent as allowed by law, and discharging the said liens in the order of priority, according to the appraisement of the jury and the law. Now, therefore, it is agreed that the said John Gilmore doth hereby agree to sell to the said David Hunt all his title, interest and claim in the said land, coal-bank, railway, carts, ropes and two flats, and other property on the premises, &c., the said property to be now in the possession of said Hunt, and all the accounts and debts due the said firm to be collected for his sole benefit. In consideration of the interest of the said Gilmore in the said land, &c., Hunt agrees to pay Gilmore $650, viz., $100 on the 28th of the present month, and the balance in three equal instalments, at.two, four and six months, for which he is to give three notes with interest. Hunt also agrees to take the whole property at the appraisement of the jury under the extent, and pay the liens in the order of priority, so far as judgment now exists, and also to pay all the other debts of the late firm as he may be legally required, or otherwise as he may arrange to the satisfaction of the creditors, so as to keep Gilmore fully clear and indemnified from every claim against the late firm, &e., it being the meaning of the parties that upon the payment of the $650, Hunt is to be the sole owner of the said property, &c., and alone liable for the payment of all the debts, &c. * * * Gilmore agrees to make a deed for Hunt for his right, interest and claim in said property, upon the payment of the $650.”
    There were other stipulations not necessary to notice. The first payment of $100 was made by Hunt according to the agreement.
    The defendant then offered the record of an ejectment brought by Hunt against Gilmore, to February Term 1849, for the premises and recovery by him, for the purpose of showing that Gilmore had violated his part of the agreement of January 21st 1848 in not delivering him possession. The plaintiff objected to the offer; it was admitted and a bill of exceptions sealed.
    The defendant then called Kinney Goff, who testified that he and Hunt made an agreement as to the land and works, by which Goff was to take out coal at the. rate of one-quarter of a cent per bushel until it amounted to $1000; that he had been prepared to go on, but Gilmore refused to give him possession; the agreement fell through on that account; both Gilmore and Hunt had agreed to the arrangement. He also gave in evidence the record of the executions under which the land was extended; Hunt’s notice that he would retain the land; failure to pay second instalment of rent, and sale of the property, August 7th 1849.
    The plaintiff submitted two points; the 2d was:—
    “The presumption of law from the record of the action of ejectment in evidence is, that defendant received all damages for the detention of the possession of the premises from the commencement of the action to December 12th 1849, date of trial, and the jury should exclude all damages for the detention of the premises prior to that date, and defendant’s remedy, if any, is an action for the mesne profits.”
    The court answered both the plaintiff’s points in the negative, and instructed the jury that by the terms of the agreement of 21st January 1848, Hunt was entitled to the exclusive possession of the premises, except so far as is therein specially provided in relation to the privileges of Gilmore to load two boats, &c. “ [Arid if the jury find from the evidence that Gilmore violated his part of the agreement by refusing to allow Hunt such possession, they might assess such damages as the evidence would warrant] for such violation, and if tbe same exceed tbe amount of tbe notes, they might certify the balance in favor of the defendant; if less than the amount of the notes, then the plaintiff would be entitled to receive the balance due on the notes.”
    The jury found for the defendant $450. The court overruled a motion for a new trial, but directed the judgment to be entered generally for the defendant, January 5th 1856.
    On the 24th of August 1868, the death of the defendant was suggested, and Robert S. Hunt, his administrator, substituted.
    Same day judgment was entered on the verdict.
    The defendant took out a writ of error; the judgment was reversed by the Supreme Court (9 P. E. Smith 450), and judgment directed to be entered on the verdict for the defendant for $450, with interest from December 8d 1855.
    The plaintiff then took a writ of error, and assigned for error, rejecting his offer of evidence, denying his 2d point and the part of the charge in brackets.

      J. Mellon, for plaintiff in error.
    — As to the 1st and 2d assignments cited: Piper v. White, 6 P. E. Smith 90; Gardner v. Buck-bee, 3 Cow. 120 ; Beck v. Greyball, 4 Casey 72; Seitzinger v. Ridgway, 9 Watts 496; Ervin v. Myers, 10 Wright 96; Ery on Specific Peuf., § 796; Prothero v. Phillips, 25 L. J. Ch. 105; Duchess of Kingston’s Case, 2 Smith’s L. C. 674; Croft v. State, 6 Watts 375. As to the 3d assignment: Kain’s Principles of Eq. 78; Penna. Railroad v. Kelly, 7 Casey 372; Penna. Railroad v. Yandever, 12 Id. 298; Ileil v. Glanding, 6 Wright 493.

      J. M. Kennedy, for defendant in error,
    referred to Piper v. White, Gardner v. Buckbee, supra; Sedgwick on Damages 131; Hunt v. Gilmore, 9 P. F. Smith 450.
   The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— This record was brought before us two years

ago by the defendant, for the correction of the error of the court below, in not entering judgment in favor of his intestate for the amount found to be due him by the jury, under his plea of set-off, and the judgment was reversed by this court, and entered for the defendant on the verdict in accordance with the finding of the jury. The case is reported in 9 P. E. Smith 450. It is now brought up by the plaintiff, for the correction of alleged errors committed in the trial, before the finding of the verdict. The plaintiff and the defendant’s intestate, who was living at the time of the trial, were the owners of a tract of coal-land in Westmoreland county, on which there was an open mine, which they had worked in partnership — but having become involved, the plaintiff sold out his interest in the coal property, subject to the payment of the judgments and other debts of the firm, to the defendant for the sum of $650 — $100 payable in seven days, and the balance, $550, in three equal instalments, for which the notes in suit were given at two, four and six months, each for the sum of $183.33.

On the trial, the defendant set up as a defence, under his plea of set-off, the refusal of the plaintiff to give him possession of the property, in accordance with the terms of his agreement, and gave in evidence the record of an ejectment which he brought against the plaintiff, in the Common Pleas of Westmoreland county, to February Term 1849, for the recovery of the possession of said property, in which a verdict and judgment were rendered in his favor; and showed, by the testimony of Kinney Goff, that he had made an agreement with the defendant to take out coal sufficient to pay $1000, at one-fourth of a cent a bushel; that he was ready and prepared to go on with the contract, but that it fell through in consequence of the refusal of the plaintiff to let him have possession of the property.

The jury, under the instructions of the court, found a verdict for the defendant, and returned a certificate in his favor for the sum of $450. The consequence of this finding is that the defendant gets the plaintiff’s half of the property for nothing, and the sum of $450 as damages, because he did not obtain possession of it a year or two sooner. This result, however wrong, if occasioned by the error of .the jury, we have no power to correct; but if it was occasioned, as alleged, by the error of the court ir. the instructions given to the jury as to the measure of damages for the plaintiff’s refusal to deliver possession of the property to the defendant, then it is our duty to correct it. The court charged that “ if the jury find from the evidence that Gilmore violated his part of the agreement by refusing to allow Hunt such possession, they might assess such damages as the evidence would warrant.” This was leaving the jury to find such damages as they thought proper, without giving them any rule or standard for their guidance. It was not a mere omission, but a misdirection; and the result, as shown by their verdict, was that they ran wild in their finding. They allowed the defendant, as damages, the $1000 which Kinney Goff had agreed to pay him for the privilege of taking out 400,000 bushels of coal at one-fourth of a cent per bushel, without a particle of evidence that the defendant had paid him any damages for the breach of the contract in not being able to deliver him possession of the mine, and without any evidence that the coal remaining in the mine, as it did, was worth any less at the time of the trial than the price which Goff had agreed to pay for it. The court, instead of leaving the damages to the discretion or caprice of the jury, should have instructed them as to the proper rule or measure of damages for thé breach of a contract, such as this, for the sale and delivery of the possession of real estate; and the measure which the jury would in law have been bound to apply, would be the amount of rent or profit that the defendant might have derived from the property from the time when possession ought to have been delivered to him under the contract and the time when it was obtained under the action of ejectment; in other words, the mesne profits during the interval. The count should hold the jury to the strict legal rule or measure of damages with a firm hand, by setting the verdict aside and granting a new trial whenever the jury palpably disregard or transcend the rule by their finding.

The other assignments of error are not sustained, and there is nothing in them requiring discussion. But for the error of the court, in not instructing the jury as to the proper measure of damages for the plaintiff’s breach of the agreement in refusing to deliver possession of the property, the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.


author: Read, J.

text:
    Kerr et al. versus Verner.
    1. A devise was “ to my daughters Christiana and Phoebe, the house I now live in * * * and 20 acres of land. * * * The 20 acres that I have willed to my daughters, to have during their lifetime, at their death to have the privilege to will to my daughter Sarah Kerr's children, or my son Thomas verner’s children, just as they see proper.” The daughters took an estate for their joint lives, in such wise that the share of the one first deceased should enure on her death for the benefit of the survivor.
    2. Christiana died intestate, Phoebe devised the 20 acres to a son of Thomas. Held, that the power was well executed.
    October 31st 1870.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 15, to October and November Term 1868.
    This was an action of ejectment, brought October 26th 1867, by James Kerr and seven others against Melchor Yerner, for eight-ninths of a tract of land.
    The tract in question belonged to John Yerner, who by his will, proved July 6th 1837, devised as follows :—
    “ I will to my daughters Christiana and Phoebe the house I now live in, together with all my ’ household furniture, and 20 acres of land, with the privilege of half the orchard — the orchard to be divided in quantity and quality; I will to my daughters Christiana and Phoebe all my cattle, hogs, sheep and fowls, and half of the Het mare, and likewise half the clock, half of all the grain in the ground, and half of all the grain in the barn. The remainder of my estate, real and personal, I will and bequeath to my son Thomas Verner, in addition to what I have already given him. * * * I will to my daughters Christiana and Phoebe, to have privilege of what coal they may want. The 20 acres of land that I have willed to my daughters Christiana and Phoebe, to have during their lifetime — at their death to have the privilege to will to my daughter Sarah Kerr’s children, or my son Thomas Verner’s children, just as they see proper.”
    Christiana died in 1850 intestate, unmarried and without issue. Phoebe died in 1863, having made her will, which contains this clause:—
    “I will the 20 acres of land bequeathed to me and my sister Christiana, by our father, unto my nephew Melchor Verner, son of my brother Thomas Verner, his heirs and assigns, for ever, as a compensation for his services while he resided with my sister Christiana and myself.”
    The plaintiffs are the children of Sarah Kerr, the defendant is the devisee under Phoebe’s will.
    The plaintiffs contended that the power, under the will of John Verner, could not be executed by Phoebe alone, and therefore the land passed to them and the defendant in equal shares.
    The court directed the jury to find a verdict for the plaintiffs for eight-ninths of the land, reserving the question whether, under all the evidence, the plaintiffs were entitled to recover. The jury found in accordance with the instruction of the court. After-wards, August 1st 1868, the court in banc (Hampton, P. J.) directed judgment for the defendant on the reserved point, non obstante veredicto.

    This was assigned for error by the plaintiffs on the removal of the case to the Supreme Court.

      T. C. Lazear (with whom was J. Hopkins), for plaintiffs in error, cited:
    6 Cruise 256, “Devise,” ch. 13, pl. 5; Jackson v. Robins, 16 Johns. R. 537. A power by will to two or more by name, not executors, will not survive: Sugden on Powers, ch. 3, § 2, art. 1, pp. 165, 166; 2 Story’s Eq. § 1062; Hill on Trustees 472; Zebach v. Smith, 3 Binn. 99. The power here is a trust and the devise will pass to all the children as a class: 2 Story’s Eq. § 1061; Brown v. Higgs, 4 Vesey 719 and note; Longmoor v. Broom, 7 Id. 129; Burrough v. Philcox, 3 Milne & Craig 73.

      J. H. Miller and M. W. Acheson (with whom were Collier & McBride), for defendant in error.
    0Christiana and Phoebe took a joint estate for life and the power survived: Phila. & Reading Railroad v. Lehigh Nav. Co., 12 Casey 204 ; Act of May 3d 1855, § 2, Pamph. L. 415, Purd. 976, pi. 66; Wilson v. Stuart, 3 Phila. Rep. 51; Lentz v. Lentz, 2 Id. 117; 1 Sugden on Powers 144, 146; 2 Story’s Eq. Jur. § 1062.
   The opinion of the court was delivered, January 3d 1871, by

Read, J.

— John Yerner, by his last will dated 14th June 1837 and proved July 6th 1837, devised and bequeathed as follows:— “First, I will and bequeath to my daughters Christiana and Phoebe the house I now live in, together with all my household furniture, and 20 acres of land with the privilege of half the orchard — the orchard to be divided in quantity and quality; I will to my daughters Christiana and Phoebe all my cattle, hogs, sheep and fowls, and half of the Het mare, and likewise half the clock, half of all the grain in the ground, and half of all the grain in the barn. The remainder of my estate, real and personal, I will and bequeath to my son Thomas Yerner, in addition to what I have already given him, with the privilege of the barn (until he can get one built with the exception of one of the stables). I will to my son Thomas Yerner all my farming utensils, wagon, windmill, &c. The large copper kettle to belong to my daughters Christiana and Phoebe, and my son Thomas Yerner.” “I will to my daughters Christiana and Phoebe, to have privilege of what coal they may want. The 20 acres of land I have willed to my daughters Christiana and. Phoebe, to have during their lifetime; at their death, to have the privilege to will to my daughter Sarah Kerr’s children or my son Thomas Yerner’s children, just .as they see proper.”

Christiana died in 1850 intestate, and without issue. Phoebe Yerner died in 1863 without issue, having made her last will and testament dated March 18th 1859, which was duly proved.

By this will she bequeathed as follows: — “ I will to my nephew Melchor Yerner one feather bed and the necessary bedding. The bed willed to Melchor to be the bed usually known as Melchor’s bed.’ ”

“ I will the 20 acres of land, bequeathed to me and my sister Christiana by our father, to my nephew Melchor Yerner, son of my brother Thomas Yerner, his heirs and assigns for ever, as a compensation for his services while he resided with my sister Christiana and myself.”

“ I will all my personal property not mentioned above to be equally divided between my brother Thomas Yerner and my nephew Melchor Yerner.”

She appointed Melchor Yerner her executor. The plaintiffs are the children of Sarah Kerr, deceased, and the defendant who is in possession is the only child of Thomas Verner.

The whole tenor and scope of this will shows in the clearest manner it was the express intent of the testator to confer an estate upon Christiana and Phoebe for their joint lives in such wise, that the share of the one first deceased should enure on her death for the benefit of the survivor. I have quoted nearly the whole will, as this construction necessarily results from an implication pervading the whole will and clearly Reducible from the spirit of its provisions : Arnold v. Jack’s Executors, 12 Harris 57; Jack’s Executors v. Arnold, 1 Grant 405 ; Lentz v. Lentz, 2 Philad. R. 117.

This being the nature of the estate, it follows logically that the privilege or power was legally executed by the will of the survivor, Phoebe, and that the court below were right.

The court below would be right, even if the power did not survive; for in that event the estate would be vested in Thomas Yerner.

Judgment affirmed.


author: Agnew, J.

text:
    Bartley versus Williams.
    1. Ordinarily trover or replevin will not lie by one partner against another for goods; the conversion.must be followed by an action for account.

      2. Partners under seal agreed to dissolve and one to take all the assets, pay the debts and divide the surplus, each agreeing with the other to make up any deficiency. Trover would lie by the liquidating partner against the other for refusal to deliver the goods.
    3. -Oral testimony is always for the jury when, what is its effect is the question.
    4. When a point is put on oral testimony it must always state the evidence hypothetically, leaving the jury to determine what the fact is and to apply the instruction of the court.
    October 31st 1870.
    Before Thompson, C. J., Read, Asnew, Sharswood and Williams, JJ.
    Error to the District Court of Allegheny county: No. 18, to October and November Term 1869.
    This was an action of trover commenced, January 31st 1868, by William D. Williams against Reuben Bartley.
    The plaintiff and defendant and one John M. Addy had been partners in the plumbing business, having one of their shops in Manchester, Allegheny county. On the 31st of July 1867, the partners entered into an agreement under seal, dissolving their partnership, and “ mutually agreed that William D. Williams do take, and is hereby authorized to take, all the assets of the said Addy, Williams & Bartley and liquidate the debts of said firm, so far as the assets will go, and it is also agreed that the said William D. Williams, only, have power to collect all debts due the said firm, &c.; and, finally, the said William D. Williams agrees to pay over to the said John M. Addy and R. Bartley, or their legal representatives, their full share and profits which shall appear to be due them after all liabilities of said firm are satisfied. And the said John M. Addy, William D. Williams and R. Bartley do hereby agree to make good their several shares of any deficiencies which may accrue to the business of said firm, not at present known.”
    The action was brought to recover damages for the defendant’s refusal to deliver the goods of the firm to the plaintiff.
    W. B. Neal, for the plaintiff, testified that in August 1867, the plaintiff came to the Manchester shop and demanded from the defendant the stock and articles of the firm, and that the defendant refused to give him anything belonging to the firm in that shop. Plaintiff said, by virtue of the agreement, he demanded everything in defendant’s possession belonging to the firm; the lease of the premises was not mentioned; witness’s impression was that the building was included in the demand. The plaintiff gave other evidence bearing on the question of demand.
    The defendant called Jacob Rush, who testified that when plaintiff made the demand, the defendant said he was willing to give up the goods hut not the lease. David Irwin testified that when the plaintiff said he had come to demand charge of the assets, stock and shop of the firm, defendant said he could take away the stock, the shop he, defendant, would keep.
    The defendant’s points were:—
    1. This action being brought by one partner against his co-partner for partnership assets alleged to have been converted by the latter, the plaintiff cannot recover, notwithstanding the agreement of dissolution offered in evidence.
    2. The evidence of Mr. Neal offered to prove demand and' refusal is not sufficient to establish a conversion so as to enable the plaintiff to maintain this action.
    3. If the jury believe the testimony of witnesses Rush and Irwin, there was no such refusal to deliver the. property in controversy as would, in law, amount to a conversion. ■
    4. If the court should refuse to charge as requested above, then they are asked to charge that no recovery can be had in this case for any of the stock remaining on hand after this action was brought.
    The court (Hampton, P. J.) answered:—

      “ 1. The court decline to charge as requested in this point, and instruct the jury that so far as this question is concerned, the plaintiff is entitled to recover.

      “ 2 and 3. The jury will take into consideration all the evidence in the cause bearing on the question of a demand and refusal, and if they are satisfied that a demand was made by the plaintiff on the defendant for all the assets or personal property belonging to the late firm in his possession, and that the same was not delivered up to him according to the terms of the agreement of dissolution, but was retained and sold, or in any other way converted to his own use, or kept in his own possession, then the plaintiff is entitled to recover the value of such property, with interest thereon, together with such damages, if any, as he may have sustained by the wrongful act of the defendant.
    “ 4. The court decline to charge as requested in this point.”
    The verdict was for the plaintiff for $>433.76.
    The defendant took out a writ of error, and assigned for error the answers to his points.

      T. C. Lazear (with whom was J. Hopkins), for plaintiff in error.
    — One partner cannot maintain trover against another: Parsons on Part’p 390; Rank v. Rank, 5 JBarr 211; 2 Greenlf. Ev. § 646. A refusal on a demand, including more than that to which there was a right, was not a conversion: 2 Greenlf. Ev. § 645; 1 Chitty’s PI. 182.

      J. Barton, for defendant in error.
   The opinion of the court was delivered, January 3d 1871, by

Agnew, J.

— It may be conceded that ordinarily in the case of a partnership trover or replevin will not lie by one partner against another for the possession of goods; but that a conversion must be followed by an aqtion for an account. But such is not this case. Here we have a mutual agreement of dissolution between the partners, under seal, and therefore importing a consideration, in which they agree or covenant with each other that all the assets of the firm shall be taken by Williams, who shall liquidate the debts of the firm so far as the assets will go ; that he only shall recover the debts due to the firm, and finally shall pay over to Addy and Bartley, their shares of the profits if any, they agreeing to make good their shares of the deficiency if any. The covenants here are mutual and in consideration of each other, and are, therefore, more than the mere constitution of an agency. The instrument confers rights, as well as powers, and is not revocable. The action of trover can well be maintained: Kahle v. Sneed, 9 P. F. Smith 389; Corbett v. Lewis, 3 P. F. Smith 330.

There was no error in the answers given to the 2d, 3d and 4th points. It should never be forgotten that oral testimony is always for the jury, and not for the court, when what it is, or what is its effect, is the question for determination. The notes of counsel or of court are not the testimony of the witness. When he has spoken, the words die with his utterance, and leave their legal impress only on the memories of the jurors. Therefore, when the counsel asked the court to charge that the testimony of Neal proved no demand sufficient to establish a conversion, and that the testimony of Rush and Irwin proved no such refusal as amounted to a conversion, they asked the court to determine what their testimony was, as well as its effect. This it was not competent for the court to do without usurping the province of the jury. Where a point is put to the court' upon oral testimony, it must always state the evidence hypothetically, leaving it to the jury to determine what the fact is, and then to apply to it the instruction of the court as given upon the supposed state of the fact. It would have been easy to have asked the court to say that if the jury believed, from the testimony, that the refusal of Bartley to deliver the articles demanded by Williams was qualified in a certain way, the refusal would not be sufficient evidence of a conversion. As it was, the court properly answered the points by leaving it to the jury to find, on all the evidence, whether a demand was made for all the assets or personal property of the firm in Bartley’s possession, and the same was not delivered up by him according to the terms of the agreement, but was retained and sold, or otherwise converted to his use. Finding no error in the record, the judgment is affirmed.