author: Mr. Chief Justice Mitchell,

text:
    Fearl v. Johnstown, Appellant.

      Ejectment — Rule to bring ejectment — Possession—Acts of March 8, 1889, P. L. 10, June 10, 1893, P. L. 415, and April 1.6, 1903, P. L. 212.
    Where the title to real estate is in dispute, but the fact of possession is clear, the remedy is for the person in possession to rule the person out of possession to bring an ejectment, as provided by the Act of March 8, 1889, P. L. 10; but where both the title to the land and the fact of possession are in dispute, the remedy is a rule for an issue to be framed by the court as provided by the Act of June 10, 1893, P. L. 415.
    Where a city claims a strip of land as part of a public street, and a private individual claims the same land as his own, and has recently built thereon a stone wall to which the city had immediately objected, the remedy for the individual claimant is by a rule on the city under the act of June 10,1893, for an issue to be framed by the court.

      Argued Oct. 10, 1906.
    Appeal, No. 162, Oct. T., 1906, by-defendant, from order of C. P. Cambria Co., March T-, 1906, No; 355, making absolute rule to bring ejectment in case of Thomas J. Fearl v. City of Johnstown.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, J J.
    Reversed.
    Rule to bring ejectment to determine title to a strip of land claimed by the city of Johnstown as a portion of a public street, and by the plaintiff as his own individual property. Before Holt, P. J., specially presiding.
    The court, after describing the land and stating plaintiff’s claim of title, found the facts as follows :
    The petitioner, after obtaining the deed from Samuel L. (Jorgas, executor of the will of Joseph Kern, entered into possession of the said piece of ground and exercised possession over the same until some time in the month of July, 1905, at which time he learned of the claim thereto by the respondent; that the possession consisted in the putting up of a notice or notices on said property warning persons not to take sand therefrom; that in the month of July, 1905, the petitioner commenced the digging of a trench upon the said property for the purpose of constructing thereon a stone wall, when the employees of the respondent undertook to fill in the ditch with earth, and thereupon the petitioner presented a bill on the equity side of said court, alleging his ownership and possession and the said interference, and praying the court for a preliminary injunction to restrain the respondent and its employees from further interference, and thereupon an injunction was granted as prayed for, and the said petitioner proceeded with the construction of the wall, or foundation, upon said property until his operations were stopped by an injunction issued upon the presentation of a cross bill by the said city against the said petitioner. The said wall still remains on the said premises, and is, in our opinion, a sufficient index of actual possession in the said petitioner at the time of the presentation of the said petition.
    The court made absolute rule to bring ejectment.

      Error assigned was the order of the court.

      Charles C. Greer, city solicitor, for appellant.
    Plaintiff’s remedy was under the act of 1893 : Huntzinger v. Helfenstein, 10 Pa. C. C. Rep. 576 ; Kennedy’s Petition, 19 Pa. Superior Ct. 482 ; Canal Co. v. Genet, 169 Pa. 848; McGarry v. McGarry, 9 Pa. Superior Ct. 71; Ullom v. Hughes, 204 Pa. 305 ; Smith v. Hibbs, 213 Pa. 202; Hutchinson v. Dennis, 15 Pa. Dist. Rep. 320.
    January 7, 1907:

      James B. O’ Connor, for appellee.
   Opinion by

Mr. Chief Justice Mitchell,

The single question now before us is whether the plaintiff’s remedy is under the Act of March 8,1889, P. L. 10, or the Act of June 10, 1893, P. L. 415. The purpose of both acts is the same but the methods of procedure are different. Neither act provides expressly for the settlement of the preliminary question of possession in fact, whereas in this case it is claimed by both parties. The language of the act of 1889 (as amended by the Act of April 16, 1903, P. L. 212) is • “ whenever any person not being in possession thereof shall claim or have an apparent interest in or title to real estate, it shall be lawful for any person in possession thereof claiming title to the same, to make application to the court,” etc. On the appearance of these two facts, the possession by plaintiff and the claim of title by the other party, without more, the rule is to be granted to bring ejectment or show cause why it should not be done. The statute does not appear to contemplate any dispute as to present possession, and has certainly made no express provision for it. It would not be straining the act very far to hold if necessary that as the fact of possession is a required preliminary to the exercise of the power granted, the court ex necessitate must decide it or the grant would be nugatory. But there is no necessity to resort to that construction, however allowable.

* The act of 1893, though as already said making no express provision for decision of this preliminary question, does furnish a procedure easily adapted to that purpose and more in accordance with the general principle that questions of fact shall be settled by a jury. The language of section second, is “ When any person .... shall be in possession of any lands .... claiming to hold or own possession of the same by any right or title whatsoever, which right or title or right of possession .shall be disputed or denied by any person,” etc., the person in possession may apply by bill or petition to the court which shall grant a rule “ to show cause why an issue shall not be framed between the parties to settle and determine their respective rights and title in and to said land.” The act of 1889 it will be observed assumes that one party is in possession and the other out, and on those facts appearing directs a rule to bring ejectment. The act of 1893, though it provides for disputed “right or title or right of possession,” (not explicitly for disputed fact of possession) prescribes for remedy a rule for an issue to be framed by the court. The control of the court as said in Ullom v. Hughes, 204 Pa. 305, “ over both the form and the substance of the issue is ample and should be exercised to fit the requirements of the real controversy between the parties.” After hearing the parties and their evidence on the return to the rule the court may mould the issue with due regard to the preliminary question which party is out of actual possession and should therefore have the burden of proof. In clear cases the act of 1889 affords the simpler and more direct remedy and should have the preference. And it should not be defeated by a mere denial in the pleadings that plaintiff is in possession or that defendant is out, for that would make it too easy for an unwilling defendant to render the act ineffective. But where there is a substantial contest as to the fact of present possession, or the evidence leaves this fact in doubt, the act of 1893 provides the more appropriate and effective procedure. On the hearing of the rule the court is to frame the issue according to the circumstances to reach the real controversy. At this stage of the case the court goes no further, the merits of the respective claims or titles of the parties go to trial on the issue. The distinction and the proper, practice are very clearly pointed out by our Brother Mestbezat in Titus v. Bindley, 210 Pa. 121.

In the case now in hand the learned judge properly held that the only material fact before him was that of possession, and he proceeded to find that fact on the evidence produced at the hearing. But we cannot say that the possession was not in substantial dispute. The land in question is a strip adjoining a public street and claimed by the defendant as part of if. The acts of possession on the part of plaintiff were recent and the principal one, on which the court mainly relied, the building of a stone wall on the lot, was immediately disputed by the city and was the subject of active litigation when this proceeding was begun. This was not the kind of possession intended by the act of 1889. The plaintiff is entitled under the finding of the court below to the prima facie advantage of being regarded as in possession, but the city ought not to be barred from disputing that fact, as it would be by the technical admission involved in bringing even a compulsory action of ejectment. By an issue under the act of 1893 the rights of both parties in that regard can be ■ effectually preserved.

The other questions argued by appellant relating to the merits of the respective titles are not yet ripe for adjudication. They belong to the trial of the issue hereafter.

The order making absolute the rule to bring ejectment is reversed, with leave to the court below either to discharge the rule, or to permit the plaintiff to amend his petition to one for a rule for an issue under the act of 1893.


source: Caselaw Access Project

author: Mr. Justice Mestrezat,

license: Public Domain

text:
    Farber, Appellant, v. Blubaker Coal Company.

      Vendor and vendee — Sale of land — Rescission—Election to rescind.

    Where a vendor sells real estate and thereafter it is discovered that he has but an undivided interest therein, the purchaser, if he desire may elect to accept such interest as the vendor can convey, or he may decline to accept and may rescind the contract. When the purchaser makes his election it is irrevocable, and thereafter he cannot change it.
    Where a decedent in his lifetime agreed in writing to sell and convey all of the coal under a tract of land, and after his death his administrator supposing that the decedent had only five-sixths interest, tenders a deed for that amount which is refused by the vendee because a conveyance of the entire interest is not offered, the administrator, on subsequently discovering that the decedent owned a six-sevenths interest, is not required to make another tender of the larger interest. The action of the vendee in refusing the offer of the smaller interest on the ground that he was entitled to the whole, effected a rescission of the contract.
    Where a decedent agreed to sell and convey an entire interest in coal, and it was ascertained after his death that he had only an undivided interest, the widow and heirs of the decedent are not required to purchase an outstanding interest in the coal to enable the administrator to convey a fee simple title; nor can they be required to convey any interest they held or had purchased subsequent to the vendor's death, in order to perfect the title. An ancestor’s warranty can only be enforced against his heirs to the extent of the land acquired by descent. Beyond that they are not liable on his warranty or his contract.
    Argued Oct. 10, 1906.
    Appeal, No. 165, Oct. T., 1906, by plaintiff, from decree of C. P. Cambria Co., Sept. T., 1904, No. 7, dismissing bill in equity in case of Winfield L. Farber, Administrator of Samuel A. Farber, deceased, Winfield L. Farber and H. W. Farber v. Blubaker Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Bill in equity for tbe cancellation of a contract for the sale of coal. Before O’Connor, P. J.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the bill.

      Harvey Roland, for appellants.
    The vendee may elect to take what the vendor can give, or to rescind: Erwin v. Myers, 46 Pa. 96; Napier v. Darlington, 70 Pa. 64; Burk’s Appeal, 75 Pa. 141.
    ■ It would surely not be contended that one might elect not to take, and yet, in suit for cancellation, retract, and take what he had, before suit, refused.
    Election once made is final and irrevocable: Baney et al. v. Killmer, 1 Pa. 30; Fire Association v. Rosenthal, 108 Pa. 474.
    Where one says that he repudiates, or that he will not accept, the- other is never bound to tender; for no one is required to offer what he has previously been informed will not be received: Hampton v. Speckenagle, 9 S. & R. 212; Tiernan et al. v. Roland, 15 Pa. 429; Wain v. Johnson, 3 Brewst. 152 ; Jones v. Sowers, 204 Pa. 329.
    Where a party gives a reason for his conduct and decision touching anything in controversy, he cannot, after litigation has begun, change his ground and put his conduct upon another and a different consideration: Ohio, etc., Ry. Co. v. McCarthy, 96 U. S. 258; Gregg v. Von Phul, 68 U. S. 274.
    Heirs are bound by their ancestor’s warranty, only as to land acquired by descent from him, and never as to land acquired by pürchase : Oliver v. Piatt, 44 U. S. 333, 412,

      January 7, 1907:

      M. D. Kittell, for appellee.
    One who takes the conveyance of the legal title to land with knowledge that his grantor had agreed to sell it to another person, takes it subject to the equitable estate already vested in the purchaser: Brodhead v. Rein-bold, 200 Pa. 618.
    A party in default has no right to insist upon a rescission: Remington v. Irvin, 14 Pa. 143; Tiernan v. Roland, 15 Pa. 429; Irvin v. Bleakley, 67 Pa. 24 ; Hatton v. Johnson, 83 Pa. 219; Vankirk v. Patterson, 201 Pa. 90.
    A bill for specific performance is inadequate which does not contain a sufficient tender, or a statement of an adequate reason for the failure to make such tender: Wilson v. Buchanan, 170 Pa. 14.
   Opinion by

Mr. Justice Mestrezat,

By a written agreement, dated July 13, 1887, Samuel A. Farber sold and agreed to convey to D. H. Hastings all the coal in and under fifty acres of land in Susquehanna township, Cambria county, with certain mining rights described in the agreement. Hastings made the first payment on the purchase money and in the following year conveyed his interest in the coal and mining rights to the Blubaker Coal Company, the defendant in this proceeding. Farber died on October 16, 1895, without having made any provision for the performance of the contract. On April 21, 1903, his administrator presented his petition to the orphans’ court of Cambria county setting forth that the deceased died seized in fee of the undivided five-sixths of the coal and mining rights sold by said agreement; that the petitioner understood that the Blubaker Coal Company was willing to accept a deed for the undivided interest in said coal owned by Farber and pay therefor a proportionate part of the purchase money fixed by the agreement; that the petitioner was “ willing and desirous that the said contract be complied with on the part of said decedent, as to all the title or interest of said decedent in the said coal and mining rights sold thereby,” and prayed that the court decree the specific performance of the contract as to the undivided five-sixths of the coal and mining rights, and that zzpozz payment of the balance of the purchase money due on said undivided interest, the petitiozzer cozivey the same to the Blubaker Coal Company.

' The company filed an answer to the citation awarded on the petition in which it admitted the execution of the agreement, the payment of part of the purchase money by Hastings, and the conveyance by him of his interest in the coal and mining rights to the respondent, and then set forth as follows: “ Your petitioners (respondent) deny that they are willing to accept a deed for an undivided interest in the said coal, mining rights and privileges, and further deny that they have ever agreed to accept a deed other than that required by said agreement, to wit: ‘ A deed with the usual covenants of general warranty, clear of all encumbrances ’ for all said mineral and all mining rights and privileges, subject, however, to said recited reservation. Petitioners (respondent) further represent that they are willing and desirous that the specific performance of said contract be decreed by the court whenever the administrator of said estate is prepared to execute and deliver a deed conveying to them, their successors and assigns, all said coal and the mining rights and privileges covered by said agreement with general warranty, and clear of all encumbrances.” The orphans’ court refused to decree the specific performance of the contract and dismissed the petition. The bill in the present suit avers that the answer of the respondent company in the orphans’ court proceeding was in effect an election by it to rescind and that it did thereby rescind the contract for the sale of the coal and mining rights.

On August 11, 1904, the present bill was filed. It sets forth the facts hereinbefore recited and avers that the estate of the decedent is insolvent and that there is no money with which to pay the debts and funeral expenses, and the amount required to be repaid to the “ Blubaker Company as a result of the aforesaid rescisioti of said contract;” that owing to the existence of the aforesaid contract, of record and uncanceled, the administrator is unable to secure advantageous and adequate bids for said coal and mining fights. The bill prays that the court decree the rescission of the contract and the cancellation and discharge of the same of record and that the administrator sell the coal and mining rights and pay first out of the proceeds thereof to the said Blubaker Coal Company the sum paid by it on said contract with interest thereon.

The defendant company filed an answer to the bill in which it denied tbe right of the plaintiffs to the relief prayed for. The answer admitted the application of the administrator to the orphans’ court for specific performance of the contract and averred “ that we made answer thereto declining to agree to accept a deed for an undivided interest in the coal, mining rights and privileges sold by said agreement, but we deny that we thereby elected to rescind, or that we would thereby rescind said contract or agreement.” The answer further sets forth that the respondent company is willing to pay to the administrator the balance of the purchase money, provided a decree can be obtained from, the court directing the administrator to convey to it the coal, mining rights and privileges described in the agreement; that the administrator has no standing to enforce the contract or to sell the coal with the mining rights and privileges therein described; that Farber died seized of an undivided six-sevenths interest in the coal; that said interest has become vested in the widow under her claim of exemption, and other matters which we do not regard as important or controlling in the disposition of the case.

The learned trial judge refused the relief prayed for in the bill. He held that when the administrator applied to the orphans’ court of Cambria county for the specific performance of the contract as to the undivided interest of the deceased in the coal, he was not in a position to convey such interest to the Blubaker company; that it had filed an answer denying that it had agreed to accept anything less than the contract called for, and that the answer filed by the defendant company to the application of the administrator for specific performance of the contract did not amount to a rescission of the contract between Hastings and Farber. The learned judge concluded his opinion refusing relief as follows: “We, therefore, conclude that the facts do not warrant the court in declaring that the defendant company has forfeited its rights by rescission of contract, and no sufficient tender has been made on part of the plaintiff which would put the. defendant in the position of either rescinding the contract or of complying with the same by payment of the remainder of the purchase money, and we are, therefore, constrained to refuse the prayer- of the complainant.”

It will be observed that the single question for determination on this appeal is whether the answer of the defendant company to the administrator’s application for specific performance of the contract in 1903 was an election by the defendant company to rescind the contract. If it was, the learned court below erred in not granting the plaintiffs the relief they asked for in this bill.

It is settled law that when a vendor sells real estate and thereafter it is discovered that he has but an undivided interest therein, the purchaser, if he desire, may elect to accept such interest as the vendor can convey, or he may decline to accept and may rescind the contract: Erwin v. Myers, 46 Pa. 96 ; Napier v. Darlington, 70 Pa. 64; Burk’s Appeal, 75 Pa. 141. And it is equally well settled that when the purchaser makes his election it is irrevocable and thereafter he cannot change it: Baney v. Killmer, 1 Pa. 30; Pence v. Langdon, 99 U. S. 578; Clough v. London, etc., Ry. Co., L. R., 7 Ex. 26.

We think the answer of the defendant company to the application of Farber’s administrator for specific performance of the contract made in the orphans’ court of Cambria county in 1903, was in effect an election to rescind the agreement for the purchase of the coal. Such is clearly the effect of the answer when construed in connection with the averments of the administrator’s petition. The petition, as we have seen, while reciting that the deceased was seized of an undivided five-sixths interest in the coal, averred a willingness and readiness to perform the contract as to all the interest which the deceased had in the coal. There is nothing in the case to show that the administrator knew or believed that his decedent had any greater interest in the coal than was named in the petition. There is no evidence of fraud or bad faith on the part of Farber in making the agreement or of his personal representative in attempting to carry it out. The administrator was performing his official duty when he asked the orphans’ court to decree the specific execution of the contract. The defendant company exercised its unquestioned right to decline to accept a part of the coal which Farber had agreed to convey to Blastings. As will be observed from its answer, the company denied that it was “ willing to accept a deed for an undivided interest in the said coal, mining rights and privileges,” and averred that it was willing that specific performance of the contract be decreed when the administrator was prepared to execute and deliver a deed conveying “ all said coal and mining rights and privileges covered by said agreement with general warranty, and clear of all encumbrances.” This was a refusal to accept any undivided interest, and an insistence upon a conveyance of the coal in fee. This demand, as the record discloses, the administrator was not in a position to comply with, as his decedent did not own the fee simple title to the coal. The defendant company’s action in declining to accept such interest in the coal as the deceased owned, must, therefore, be regarded as an election by it to rescind the contract. To interpret the answer of the company otherwise would permit it to decline accepting the vendor’s interest in the coal, and at the same time prevent the administrator from selling the interest and applying the proceeds to the payment of decedent’s debts. In other words, the company would not accept the coal nor permit the vendor’s administrator to sell it in order to obtain funds to apply to the debts of the insolvent estate. This is an absurdity which the law will not tolerate. And not only did the company assume this position in 1903 when the administrator offered to convey to it all his decedent’s interest in the coal, but in the answer to the bill filed in this case, it still persists in demanding the conveyance of the fee simple title and declines to accept any lesser interest. A court of equity will not permit such inconsistent and unconscionable conduct on the part of a litigant, but on the contrary will compel him to act with due regard to the rights of the other interested parties.

The question of tender was eliminated from the cause by the action of the defendant. The administrator was not required to tender a conveyance of a six-sevenths interest in the coal. The vendee having declined to accept any undivided interest when the five-sixths interest was offered it, thereafter the administrator was not required to do a vain thing by offering again a larger undivided interest. The refusal by the defendant company to accept a conveyance was based on the fact that the administrator had offered to convey an undivided interest and not the entire interest in the coal, and hence the subsequent discovery that the vendor had a greater undivided interest did not impose on the administrator the duty of mating another tender. Had the defendant company accepted the five-sixths,.interest in the coal when it was offered in the .proceedings in the orphans’ court, equity undoubtedly would have compelled the administrator to have conveyed the residue of the six-sevenths interest when it was ascertained that the vendor owned the larger interest.

. The widow .and heirs of the deceased vendor were not required to purchase an. outstanding interest in the coal to enable the administrator to convey a fee simple title. Nor could they be required to convey any interest they held or had purchased subsequent to the vendor’s death in order to perfect the title. An ancestor’s warranty can only be enforced against his heirs to the extent of the land acquired by descent. Beyond that they are not liable on his warranty or his contracts.

We are of, opinion that the action of the defendant company in declining to accept an undivided interest in the coal sold by Farber to Hastings by the agreement of July 13, 1887, being the only interest the vendor ever owned therein, was in effect an election to rescind the contract, and that therefore the plaintiffs are entitled to the relief prayed for in this bill.

The decree of the court below is reversed at the costs of the appellee, the bill is reinstated, and it is now ordered, adjudged and decreed as follows:

1. That the contract entered into July 13, 1887 between Samuel A. Farber and D. H. Hastings for the sale of the coal under about fifty acres of land in Susquehanna township, Cambria county, Pennsylvania, described in the bill, be and the same is hereby rescinded, canceled and discharged, and the recorder of deeds of Cambria county is directed to enter such rescission, cancellation and discharge at the appropriate place on the record of said agreement.

2. That Winfield L. Farber, administrator of Samuel A. Farber, deceased, having given bond, approved by the court below, to secure the due .application of the proceeds of sale, sell the coal, mining rights and privileges mentioned in the aforesaid agreement and out of the proceeds thereof, pay to the Blubaker- Coal Company the amount paid by it or its assignor on said contract with interest from July 13,-1887.

3. That said administrator apply the balance of the proceeds of said sale as required by law.


author: Mr. Justice Stewart,

text:
    Keystone Coal Company v. Williams, Appellant.

      Ejectment — Judgment—Confession of judgment — Lease—Title to personal property — Habere facias possessionem.

    Personal property cannot be subjected to lien except by execution. It cannot be seized under a writ of habere facias possessionem and delivered to the plaintiff in the writ.
    Where a judgment is confessed under an ejectment clause in a lease, and in the confession, reference is made to certain personal property, and subsequently on a return to a writ of habere facias possessionem the sheriff includes such personal property in his return, the defendant in the execution and his trustee in bankruptcy have no standing to have the judgment opened, and the writ set aside as to the personal property. In such a case the confession of judgment and the service of a writ were ineffectual to pass title to the personal property. The defendant’s remedy is by a common-law action, and such remedy is unaffected by anything that the plaintiff may have done in the ejectment proceedings.
    Argued Oct. 9, 1906.
    Appeal, No. 19, Oct. T., 1906, by defendant, from order of C. P. Somerset Co., May T., 1904, No. 62, discharging rule to open judgment and set aside execution in case of Keystone Coal Company v. N. Winslow Williams, trustee in bankruptcy of the Continental Coal Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Rule to open judgment and set aside execution.
    Kooser, P. J., found the facts to be as follows :
    An amicable action and confession of judgment was entered April 27, 1904, to the above number and term, upon the authority of two warrants of attorney contained in two separate agreements called “leases,” which granted defendant company the right to mine and remove “all the unmined portion” of two different seams of coal, severally described in said agreements. These warrants authorize any attorney of any court of record of this- commonwealth to appear and confess judgment in ejectment against defendant company for breach or nonperformance of either of the said contracts and thereupon to cause to be issued a writ of habere facias possessionem to put the lessors or their successors in possession “ of the said demised premises, with the appurtenances, etc.,” with the further proviso that said judgment in ejectment should not prevent the lessor from proceeding to recover “ rent or royalty due by distress or otherwise, and that it should not bar lessor from an action for damages for any loss sustained by any breach of the terms of the leases.”
    These agreements bear date of April 28, 1899, and November 1, 1899, and of course these are also the dates of the warrants of attorney. The first is recorded in recorder’s office, Somerset, Pennsylvania, in volume 99, page 87. It has not been made to appear if the second is recorded or not.
    On May 5, 1899, between the dates of said two agreements, the defendant company received a letter signed “Keystone Coal Co., J. E. Baker, Secy.” in these words :
    “ This is to certify that you are to have the privilege of removing all the machinery and buildings that you erect to cover your machinery on our property at the expiration of your lease dated a few days ago.”
    Alleging a breach of the agreements Messrs. Coffroth & Ruppel, on April 27, 1904, appeared and confessed judgment-in ejectment against defendant company for the land described in the judgment, adding to the confession “ It being understood that in accordance with the terms of said agreements the plaintiff seeks to recover only the coal of the said “ ten foot or big seam,” and the coal of the “ Little Pittsburg seam ” on the tract above described, and such surface and surface privileges as were granted, taken, used or occupied by the defendant in carrying on its mining operations on said -tract of land with all railroad tracks, chutes, mine tracks, mining machines, air tanks, air pipes, pumps, rope haulage, fixtures, weigh sheds, scales, air fans, cars, tipples, railroad siding, blacksmith shop, engines, boilers, engine houses, oil sheds, pump houses, water tanks, and other buildings, structures or fixtures of any kind or character used in connection with the mining operations of said mines or said seams of coal.”
    Same day a writ of habere facias possessionem was issued describing the land by courses and distances, and as containing 230 acres strict measure, and reciting as above: “ It being understood, etc.”
    April 28, 1904, the sheriff returns that he caused plaintiff company- “ to have possession of the lands, coal, premises, coal tracks, chutes, mine tracks, and other property and rights therein mentioned and specified with appurtenances. As to the costs on said writ I return the same nulla bona.”
    January 7, 1907:
    Thus the matter rested until the petition on which these proceedings are based was presented September 14, 1904.
    On August 12, 1904, the defendant company was adjudged an involuntary bankrupt on petition presented in the district court of the United States for the district of Maryland, and as appears by the petition Andrew J. Clarke and N. Winslow WTlliams were same day duly appointed receivers in bankruptcy of the said company.
    September 14, 1904, they presented their petition to this court praying that we “ open and set aside the said judgment in so far as it relates to the said personal property ” and that we “ set aside the habere facias possessionem as to the said personal property.”
    The court, passing upon the title to the personal property as raised by these proceedings, discharged the rule.

      Error assigned was in discharging the rule.

      W. H. Koontz, with him J. G-. Ogle, for appellant.

      W. H. Ruppel, for appellee.
   Opinion by

Mr. Justice Stewart,

By the execution of a writ of habere facias possessionem, certain property claimed by appellant to be personalty, and to belong to him as trustee in bankruptcy of the defendant in the writ, passed into the hands of the appellee. It included railroad tracks, chutes, mine tracks, mining machines, air tanks, air pipes, pumps and a number of other articles used in connection with mining operations. It was recited both in the confession of judgment by warrant of attorney in the action of ejectment, and in the writ under which premises and property were delivered over to the plaintiff, that these enumerated articles were included in plaintiff’s claim for which recovery was sought. Because of this recital and demand in the confession and writ, proceedings were commenced in the court below to have the judgment and writ set aside, so far as either related to the disputed property. In answer to the rule granted, the plaintiff denied the defendant’s ownership of the property, and averred that it constituted part of the estate which was the subject of the ejectment action, and as such passed with the estate. The court proceeded to consider and pass upon the issue thus raised, and, concluding that the contention of the plaintiff was correct, discharged the rule. This appeal followed.

The case shows a clear misapprehension as to the effect of the court’s action; just as the original proceeding shows a misapprehension as to the effect of the recitals in the confession of judgment and in the writ. If in point of fact and law the property was personalty, neither judgment, writ nor sheriff’s return could make it anything else. If personalty, it could not be subject to lien except by execution;' and the judgment in the case affords no basis for any process by which it could be seized except for costs, and such process was not attempted. The writ of habere facias possessionem could not, by anything the plaintiff might do, be enlarged to include anything but the premises, the right of possession of which was adjudged to be in the plaintiff. The delivery to the plaintiff of the premises recovered in the ejectment, was no delivery in law of the personal property upon the premises. Such property with respect to its ownership remained as before. If it belonged to the appellant, no matter how, whether by purchase by the lessee whose estate he represents, or by agreement between the latter and his lessor, his right to recover the same through a common-law action remained unaffected by anything that was done. With the issue attempted to be raised by the appellees’ answer, the court had nothing to do. The proceeding is not one in which the ownership of the property could be adjudicated; and the findings of the court with respect to it are nugatory. We do not feel called upon to review further the action of.the court in discharging the rule, since in no possible aspect could such refusal work prejudice to the appellant. If the latter wants to assert ownership to the property, it may do it in the one way that was open before this proceeding was begun, unprejudiced by anything in the record.

The appeal is dismissed, at the costs of the appellant..


text:
    Ligonier Valley Railroad Company, Appellant, v. Latrobe Borough.

      Railroads — Boroughs—Act of June 7, 1901, P. L. 531.
    The Act of June 7, 1901, P. L. 531, prohibiting the construction of grade crossings, does not apply to streets in a borough established by ordinance three years before the date of the act; and it is .immaterial that the actual crossings were not what they ought to be to meet public requirements as to convenience, if it appears in fact that they were established crossings.
    Borough authorities in laying out grade crossings under the authority of the Act of April 3, 1851, P. L. 320, prior to the act of June 7, 1901, were not running counter to any established policy.
    Where the legislature in terms confers upon a municipal corporation the power to pass ordinances of a specific and defined character, an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if it had been passed under the incidental power of the corporation, or under a grant of power general in its nature. What the legislature distinctly says may be done cannot be set aside by the courts on the ground that it is unreasonable or against sound policy.
    Argued Oct. 10, 1906.
    Appeal, No. 41, Oct. T., 1906, by-plaintiff, from decree of C. P. Westmoreland' Co., No. 384, of 1900, dismissing bill in equity in case of Ligonier Valley Railroad Company v. Latrobe Borough.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elion and Stewart, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Doty, P. J.
    From the record it appeared that on September 13, 1898, ordinances of the borough of Latrobe were approved by which Weldon street and Spring street were opened of the full width of fifty feet across the Ligonier Valley Railroad. In 1900 the Ligonier Valley Railroad Company was served with notice by the borough, to provide and lay proper crossings at the intersection of the railroad with Weldon and Spring streets. The company failed to comply with the notice and the borough took steps to put down the crossing. This bill was then filed for an injunction to restrain the borough from constructing grade crossings at the points in question.
    The court made the following findings of fact as to the situation at the crossing.

      8. That the Welden and Spring street crossings, like all grade crossings, are dangerous ; that because of reasonable proximity • to other crossings, there is no great necessity for their construction, but, if opened, it will be a matter of convenience to citizens of the borough now living on both sides of the railroad; that the actual opening of the crossings to public travel will seriously inconvenience the plaintiff company, but will not work irreparable injury. The scale tracks and switches were constructed after the adoption of the ordinances and after notice to the plaintiff company of the opening of said streets.
    The court entered a decree dismissing the bill.

      Error assigned was the decree of the court.

      Edward E. Robbins, with him John E. Kunkle, for appellant.
    —Whether an ordinance is unreasonable or not is a question for the court, and if the ordinance is oppressive and unnecessary it is unreasonable : Gitt v. Hanover Borough, 4 Pa. Dist. Rep. 606; Elizabeth Borough v. Braum, 17 Pa. C. C. Rep. 267; Warren Borough v. Lewis, 16 Pa. C. C. Rep. 176; Kneedler v. Norristown Borough, 100 Pa. 368 ; Sayre Borough v. Phillips, 148 Pa. 482; 1 Trickett, Borough Law, p. 125.
    The ordinance under consideration is unreasonable for the reason that it confiscates' the property of the railroad company: Kneedler v. Norristown Borough, 100 Pa. 368 ; Reimer’s App., 100 Pa. 182; Livingston v. Wolf, 136 Pa. 519; Ruan Street, 132 Pa. 257.
    Should the court be of opinion that this ordinance can be sustained, yet the defendant most earnestly urges that these grade crossings cannot now be opened.
    The word “ establish ” as used in this section, means construct, actually build, made or opened. The word “ establish ” is used advisedly and for a purpose. “ Establish ” (a) to settle firmly; to fix unalterably; (b) to make firm: Dickey v. Maysville, etc., Turnpike Road Co., 7 Dana (Ky.), 113 ; Wright v. Nagle, 101 U. S. 791; Palatka, etc., R. R. Co. v. State, 23 Florida, 546 (3 So. Repr. 158) ; Penna. R. R. Co. v. Bogert, 209 Pa. 589; Perry Co. R. R. Extension Co. v. R. R. Co., 150 Pa. 193; Mifflinville Bridge, 206 Pa. 420; B. & O. R. R. Co. v. Butler Pass. Ry. Co., 207 Pa. 406.

      January 7, 1907:

      C. E. Heller, with him F. B. Sargrave and J. S. Lightcap, for appellee.
   Opinion by

Mr. Justice Stewart,

It is futile to contend that the Act of June 7, 1901, P. L. 531, prohibiting grade crossings, except they are allowed by the court, applies here. The streets of which the grade crossing complained of are a part, were established by ordinance and regularly laid out at least three years before the act went into effect. There is no dispute about this. The mere fact that up to this time the actual crossings are not what they ought to be to meet public requirements as to convenience, is nothing to the point. They are none the less established crossings. It would hardly be contended that the highway had not been constructed, because something remained to be done to make it all that the public had a right to expect. With no more reason can it be urged, that the crossings have not been constructed, because as yet there have been no planks placed alongside the rails, to make travel over them easy. The public had the right to travel on these streets in whatever condition they were in, and this right extended to the railroad crossing as well as any other part.

The other contention of appellant has no better support. We agree in all that is said as to grade crossings being a menace to public safety. We have again and again reprobated them, and have no disposition to qualify anything we have said on this general subject. But our disfavor affords no warrant for supposing that when grade crossings have been legally established, public rights with respect to them are to be disregarded. In ordering and laying out these streets across appellant’s railroad, the borough authorities were running counter to no established policy. The act of June 7, 1901, had not then been passed. The general borough Act of April 3, 1851, P. L. 320, was the authority under which the streets were laid out. In so many words that act empowers boroughs to survey, lay out, enact and ordain such roads, lanes and alleys as they may deem necessary. ■ That the ordinance is unreasonable, in view of the danger attending the use of the crossing, and the adequacy of the crossings then existing for the public need, is a view that might have been urged when the adoption of the ordinance was being considered by the borough authorities ; their decision however, with respect to it, in any event would have determined the question finally. It is settled law that where the legislature in terms confers upon a municipal corporation the power to pass ordinances of a specific and defined character, an ordinance passed pursuant thereto cannot be impeached as invalid because it would have been regarded as unreasonable if passed under the incidental power of the corporation, or under a grant of power general in its nature. In other words, what the legislature distinctly says may be done, cannot be set aside by the courts because they deem it to be unreasonable or against sound policy : Dillon’s Municipal Corporations, sec. 328.

The establishment of the streets with the crossing complained of, was the exercise of a discretion conferred upon the borough authorities. The ultimate and sole responsibility for their action must be with them.

The assignments are overruled; the decree is affirmed at costs of appellant.


author: Mr. Justice Fell,

text:
    Schonhardt v. Pennsylvania Railroad Company, Appellant.

      Railroads — Eminent domain — Widening road — Evidence—Licensed saloon property — Harmless error.

    In an action against a railroad company to recover the value of a hotel property appropriated in the widening of a railroad, it is improper to admit in evidence a record of the quarter sessions showing that an application for a license had been filed after the bond to secure the owners had been approved, and that a remonstrance had been filed by the defendant. Damages in such a case are to be ascertained as of the date of the filing and approval of the bond. The admission of such evidence, however, will, not be cause for reversal, if it appears that the defendant was not injured by it.
    On the trial of a railroad condemnation case, where the plaintiff in his examination in chief has placed the market value of his. property at a sum named, he cannot on cross-examination be asked what other properties on the same street had been sold for within two years for the purpose of having his answer go to the jury as affirmative evidence of value.
    Argued Oct. 9, 1906.
    Appeal, No. 69, Oct. T., 1906, by defendant, from judgment of C. P. Cambria Co., March T., 1905, No. 66, on verdict for plaintiff in case of John Schonhardt et al. v. Pennsylvania Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Appeal from award of jury of view. Before O’Connor, P. J.
    At the trial counsel for plaintiff offered in evidence petition and bond of John Schonhardt for a license to sell liquor at retail in the premises in question, situate in the tenth ward, city, of Johnstown, filed January 16, 1905.
    Also offers a demurrer objecting to the granting of the license to John Schonhardt at this place, said demurrer having been filed by the Pennsylvania Railroad Company.
    Mr. Storey, for the defendant: The offers are objected to for the reason that they are irrelevant and immaterial to the issues in this case; in fact, anything after December 28, would be irrelevant as to the question of damages for the reason that after the bond was approved the railroad company became entitled to the possession of the property.
    The Court: So far as the speculative features of the offer are concerned it is immaterial, but it shows the conduct of Mr. Schonhardt in continuing his license and in obtaining it at the end of the year. We overrule the objection, note an exception, and seal a bill for the defendant company. [1]
    Counsel for defendant company proposed to ask plaintiff, on cross-examination, for the purpose of testing his knowledge as to values and as to the value of his property, what the two adjoining properties on the westerly side of his property and the two on the easterly side were sold for within the past two years, the frontage of those properties and the buildings thereon and the amount of money that each of the owners received for the same for the purpose of having the testimony go to the jury on the question of the value, which the witness has fixed at 118,000.
    Mr. Stephens: Objected to for the reason that the same would be incompetent and irrelevant as tending to test the competency of the witness to testify to the value of real estate in question; further, for the reason that the properties the price of which has been called to the attention of the witness were dissimilar in character, adapted to entirely different uses than the property taken by the Pennsylvania Railroad Company and for which damages are sought to be recovered.
    The Court: Plaintiffs cannot- prove the value of property taken by the defendant company by offering evidence of prices received for properties in the immediate vicinity or adjoining; therefore, it is incompetent for the defendant, upon cross-examination of plaintiffs’ witnesses, to develop that which would not be received as evidence in the case. It is not the way of arriving at the value of property taken under condemnation proceedings, and for that reason we reject the offer, sustain the objection, note an exception and seal a bill for defendant company. [2]
    Verdict and judgment for plaintiff for $15,583. Defendant appealed.

      Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions.

      H. W. Storey, for appellant.
    We contend the court erred in admitting the application of Mr. Schonhardt for a renewal of his license for the year 1905 and also the introduction of the demurrer thereto filed by the defendant company.
    Values of particular sales cannot be ascertained, but “such evidence may, however, be brought out by the cross-examination of witnesses : ” Becker v. P. & R. Terminal R. R. Co., 177 Pa. 252.

      M. B. Stephens, with him John H. Stephens, for appellee.
    Whatever facts tend to enlighten the jury on the subject and thus enable them to reach a correct conclusion as to the value of the property taken are admissible in evidence: Penna. S. V. Railroad Co. v. Keller, 20 W. N. C. 125; Kemmerer v. Edelman, 23 Pa. 143 ; Messner v. Lancaster County, 23 Pa. 291.
    What particular owners were willing to accept or had accepted from the company by way of settlement or compromise could not affect the plaintiff. Aside from this, to render such testimony of any value the conditions must have been shown to have been similar: Penna. Schuylkill Valley Railroad Co. v. Ziemer, 124 Pa. 560 ; Pennsylvania Schuylkill Valley R. R. Co. v. Cleary, 125 Pa. 442; Pittsburg & Western R. R. Co. v. Patterson, 107 Pa. 461.

      January 7, 1907:
   Opinion by

Mr. Justice Fell,

This action was to recover the value of a hotel property appropriated by the railroad company, defendant, in widening its roadbed. The assignments of error that need be considered relate to the admission and rejection of testimony. The plaintiffs offered in evidence a record of the quarter sessions which showed that an application for a license had been filed after the bond to secure the owners had been approved, and that a remonstrance had been filed by the defendant. This record was admitted ; it should have been excluded. The damages were to be determined as of the date of the appropriation. This was completed by the filing and approval of the bond, and the railroad company had then the right of possession. The application for a new license had no bearing on the issue. The admission of this record would be cause for reversal if there were reason to believe that the defendant was injured by it. There does not appear to be any. The property had been used as a licensed hotel for fourteen years, and its adaptability to this use was considered as one of the elements of value upon which the jury passed. No new or prospective use was shown by the record. The instruction in the charge was clear and distinct that there could be no recovery for the loss of the business and that the measure of damages was the market value of the real estate at the date of the approval of the bond.

One of the plaintiffs in his examination in chief had placed the market value of the property at $18,000, and on cross-examination it was proposed to ask him what other properties on the same street had sold for within two years. The purpose of the offer, as stated by defendant’s counsel, was to test the knowledge of the witness and to have his testimony go to the jury on the question of value. The offer was properly rejected. Where a witness has testified to value, his good faith and the accuracy and extent of his knowledge may be tested on cross-examination by questioning him as to particular sales of properties similarly situated to ascertain whether he knew of them and considered them in forming an opinion; such questions go directly to the value as evidence of the opinion he has expressed: East Pennsylvania Railroad Co. v. Hiester, 40 Pa. 53; Pittsburg, Virginia & Charleston Ry. Co. v. Vance, 115 Pa. 325 ; Becker v. Philadelphia & Reading Terminal Railroad Co., 177 Pa. 252; Henkel v. Wabash Pittsburg Terminal Railroad Co., 213 Pa. 485. It is within the limits of a proper cross-examination to show that the witness is unfair or that his opinion is founded on a misapprehension of facts, but it is not proper under the guise of cross-examination to develop as affirmative evidence of value facts that neither party could have shown in chief. The proper test of value when the' whole property is taken is the market price, and this is to be shown not by proof of particular sales but by the general selling price.

The judgment is affirmed.


author: Per Curiam,

text:
    Davis v. Davis, Appellant.

      Trusts and trustees — Trust ex maleficio — Bare parol trust — Evidence.
    A trust cannot be taken out of the prohibition of the statute as a trust ex maleficio which, under the most favorable view for the claimant, shows nothing more than a bare parol trust.
    Argued Oct. 11, 1906.
    Appeal, No. 90, Oct. T., 1906, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1903, No. 33, on verdict for plaintiff in case of Julia F. Davis v. George L. Davis.
    Before Mitchell, C. J., Fell, Brown, Mestbezat, Potteb, Elkin and Stewart, JJ.
    Reversed.
    Assumpsit for money had and received for the use of the plaintiff. Before Kooser, P. J.
    In addition to the facts stated in the opinion of the Supreme Court it appeared that the defendant sold the property in question for $3,000, and did not account to the plaintiff for the difference between the selling price and the purchase price, plus certain other items of credit.
    The court refused binding instructions for defendant.
    Verdict and judgment for plaintiff for $1,979.86. Defendant appealed.

      Error assigned among others was in refusing binding instructions for defendant.

      January 7, 1907:

      Valentine Hay, with him A. L. G. Hay and George R. Scull, for appellant,
    cited: Kellum v. Smith, 83 Pa. 158; Franks v. Groff, 14 S. & R. 181; Wolford v. Herrington, 86 Pa. 39; Beegle v. Wentz, 55 Pa. 369; Boynton v. Housler, 73 Pa. 453 ; Dollar Sayings Bank v. Bennett, 76 Pa. 402; Bryan v. Douds, 213 Pa. 221.

      J. A. Berkey,

    for appellee, cited: Seichrist’s App., 66 Pa. 237; Benjamin v. Zell, 100 Pa. 33; Everhart’s App., 106 Pa. 349.
   Per Curiam,

■ The plaintiff paid no money or other consideration towards the purchase of the land, and therefore there is no basis for a resulting trust in her behalf.

, Nor is there any sufficient evidence of a trust ex maleficio. The plaintiff and her husband had endeavored to buy the land but had been unable to raise the money. The defendant then made the purchase from the attorney of the vendor, borrowed the money on his own note with Saylor as surety, neither plaintiff nor her husband being party to it, took title in his own name, mortgaged it, subsequently paid the note, and treated the land throughout as his own. No act of his was shown which in anywise indicated or recognized any interest in the plaintiff, and the latter did not assert her present claim for nearly five years and a half, though her husband was working on the land, and being paid for his services by the defendant. The testimony which the learned judge below thought should carry the case to the jury is thus summed up in his opinion refusing a new trial: “ The facts for the jury’s consideration back of the mere promise (as alleged by plaintiff) of defendant to take and hold the title in trust are: The previous relations of Ross F. Davis, plaintiff’s husband, and the grantors in connection with this particular land; the basis upon which the purchase price, $950, was fixed ; Ross F. Davis’s testimony as to defendant’s suggestion ‘ To put the deed in his (defendant’s) name for reasons he assigned ; ’ and the testimony of H. B. Beal one of the grantors (and apparently the managing grantor) that he would not have sold the premises to anyone but Ross F. Davis for the price of $950, giving as his reason that ‘ he done at least $600 worth of work and I thought it was taking advantage of him not to sell to him.’ ”

The “ previous relations ” of plaintiff’s husband to the land referred to, consist in his purchase of it from Beal six or seven years previously, his inability to pay for it, and the reverter of the title to Beal. With these matters defendant had no connection at all. The “ basis upon which the purchase price of $950 was fixed ” and the testimony of Beal that he would not have sold for that price to anyone but Ross were not connected with defendant at all. Beal testified that he never saw defendant, the sale and the making of the deed were conducted by Mr. Pugh as Beal’s attorney, and neither he nor anyone else testified to defendant’s knowledge of these matters. The only testimony that went really to the point of the case was that of Ross Davis that the title was put in defendant’s name at the latter’s own suggestion because Ross was in. debt. But this was flatly denied by defendant and with oath against oath the writings must prevail. The testimony of Meyers who loaned the money was favorable to defendant. He says “ I don’t recollect speaking to Ross Davis about this transaction. I know nothing of any private arrangement between the parties.” And the same may be said of the testimony of Saylor who signed the note to Meyers as surety, though he knew of the efforts of Ross to buy the land and to borrow the money for that purpose. To the question “ whom were you bailing at that time ? ” he answered George L. Davis, “ At the time the note was made was anything mentioned about Ross Davis or Julia? A.. Not to my knowledge.”

A trust cannot be taken out of the prohibition of the statute as a trust ex maleficio by testimony as loose as this: Grove v. Kase, 195 Pa. 325. Under the most favorable view for the plaintiff she showed nothing more than a bare parol trust.

Judgment reversed and judgment directed to be entered for defendant.


text:
    Baldridge v. George, Appellants.

      Equity — Specific performance — Description of land.

    The essential basis of a decree for specific performance is a definite present agreement in regard to a specified piece of land, clearly designated as present to the minds of both parties, and to be conveyed by one to the other. Without this basis there is nothing to take a case out of the general rule of law that the remedy for a contract unperformed is an action for damages. Every element of this essential basis must be clearly and fully established,’ even where the contract is in writing and a fortiori where it is in parol.
    A mere executory agreement to buy an unidentified house in the future for another person, cannot be specifically enforced.
    A parol agreement cannot be specifically enforced by a daughter as against her father’s estate in the orphans’ court where it appears that the only possession of the petitioner was as a part of the father’s family, and that she made no improvements, nor paid any part of the purchase money.
    Argued Oct. 10, 1906.
    Appeal, No. 155, Oct. T., 1906, by defendant, from decree of O. C. Westmoreland Co., Nov. T., 1905, No. 150, awarding specific performance in case of Jennie G. Baldridge v. Homer J. George, Administrator of Isaac George, deceased, et al.
    Before Mitchell, C. J., Fell, Bbown, Mestrezat, Potteb, Elkin and Stewart, JJ.
    Reversed.
    Petition for specific performance. Before Steel, P. J.
    The petition of Jennie G. Baldridge averred:
    That on or about January 3,1903, “ Isaac George entered into an oral agreement ” with her, by which he was to purchase a house in Latrohe, sufficient in size for him and his wife and petitioner’s family; that she agreed to keep and care for him and her mother during their lives ; that he was to give her the property which he would and afterwards did purchase, the property being described in the petition ; the same to be hers in fee simple at the time of his death.
    That on February 17,1903, Isaac George did buy a property, by articles, and still later obtained a deed for it; that she moved to this property April 1, 1903, and the same day George and wife came to live with her.
    That she provided, cared for and maintained both father and mother until her father’s death, on January 3, 1905, at consid-

      January 7, 1907 :
    erable expense, and that he died intestate, never having conveyed to her this property.
    That she was still maintaining her mother, and was ready and willing to do so as long as she lives, and otherwise to perform this parol contract on her part.
    The court entered a decree awarding specific performance.

      Rrror assigned was the decree of the court.

      James S. Moorhead, with him Robert W. Smith and James B. Weaver, for appellants.

      H. Clay Beistel, for appellee.
   Per Curiam,

The essential basis of a decree for specific performance is a definite present agreement in regard to a specified piece of land, clearly designated as present to the minds of both parties, and to be conveyed by one to the other. Without this basis there is nothing to take a case out of the general rule of law that the remedy for a contract unperformed is an action for damages. Every element of this essential basis must be clearly and fully established, even where the contract is in writing and a fortiori where it is in parol.

In the present case this essential basis is wholly wanting. The petition sets out and the learned judge below finds as a fact that the contract, if it be so considered, between the petitioner and her father was made in January, 1903. It did not relate to any house that the father then owned, nor to any house present to the mind of either party. It was that “ he would purchase a house suitable for himself and wife and Jennje Gf. Baldridge (the petitioner) and her family.” It was at the utmost an executory agreement to buy a house in the future. If he had never bought such house there never would have been any subject-matter on which this proceeding could operate, and the fact that he did subsequently select and purchase a house did not carry it back and make it a defined and designated subject of the previous agreement.

The petitioner’s case thus fails in its essential foundation. But even if this difficulty could be got over the evidence falls far short of what is required to entitle a parol agreement to specific enforcement. The petitioner did not show possession taken by herself. The possession in accordance with the title was in the father, who paid the taxes and was in fact as in law the owner, and such possession as the petitioner had was subordinate to his as part of his family. No improvements were shown to have been made by her, nor any payments on account of purchase money. There was nothing at all to show that a failure to enforce the contract would be inequitable in the sense required. So far as the evidence discloses it was merely a parol promise to make a gift. But even if regarded as a contract there is nothing at all to show that the breach could not be adequately remedied in damages on a quantum meruit.

It is not necessary to go so far as appellant argues that the petition for partition should operate as an estoppel against the present claim of the petitioner. She may have been differently advised as to her rights in regard to the house, and it does not appear that any of the other parties have been led to act to their disadvantage. But the petitioner’s sworn statement of the title to the house in the partition proceedings is strong evidence that her present claim is an afterthought no better founded in fact than it is in law.

Decree reversed and petition dismissed with costs.


text:
    Byers, Appellant, v. Ferner.

      Trusts and trustees — Resulting trust — Husband and wife — Evidence.
    To establish a resulting trust in favor of a wife in real estate purchased in the name of the husband, it must appear by clear proof that the wife’s money went into the property at the inception of the title; that the purchase was made by her, or for her account, and that the placing of title in her husband was in violation of an agreement by which the deed was to be made to her. The intention of the parties may be shown by their actions, their claims or declarations in the presence of each other, and other cotemporary circumstances; and the necessary facts must not only be shown, but must also be averred in the pleadings. The length of time that the title has stood in the husband’s name is a circumstance of weight in determining the validity of the challenge to his title.

      Argued Oet. 11, 1906.
    Appeal, No. 166, Oct. T., 1906, by plaintiff, from judgment of C. P. Westmoreland Co., Aug. T., 1905, No. 422, on verdict for defendant in case of Harry K. Byers et al. v. C. R. Ferner, Executor of tbe Estate of Jacob Byers, deceased.
    Before Mitchell, C. J., Fell, Brown, Mbstrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Assumpsit to recover purchase money of two-fifths interest in land. Before Doty, P. J.
    At the trial it appeared -that the suit was brought by the heirs of Elizabeth Byers, deceased, against the executor of her deceased husband, Jacob Byers, to recover the purchase money of land, which was alleged to have been bought by Jacob Byers in 1867, with the money of his wife.
    The court charged in part as follows :
    [As we understand the law and as we said to you a moment ago, it would be necessary for you to find another question; not simply that Elizabeth Byers.had money or an estate in March, 1867, or not simply that she was the source from which the money was obtained, but that it was invested in some way under an understanding or agreement between the husband and wife, or with the intent that the title was to be for her ; that she was paying the purchase money with the intent that the property should enure to her, or that it was done with her knowledge or consent. It would not do to simply say that because the husband obtained from his wife money and then made an investment of that money, that a trust would arise. It must be more than that. It arose, if at all, out of some breach of duty, or out of some violation of an agreement; some understanding between the parties,' because a husband by loan or by gift or in other ways that would not make a trust, might obtain from his wife money or sufficient money to pay the consideration.] [1]
    [A legal title is not to be lightly set aside; It means considerable when one has a paper title, and deed regularly made to him, and anybody who attempts by parol, that is, by what you would understand by verbal testimony or oral testimony, to set aside a solemn deed that appears regular on its face and regularly recorded, it is only fair to hold, as the law does require, that the burden is upon the party so attempting; and parol trusts, it is our duty to say to you, are not favored in the law. The presumption is in favor of the holder of the legal title. The laboring oar is with the other party, and when they attempt by parol testimony to overturn a title of this kind that has been regularly reduced to writing and recorded upon the records of the court,.then they must be prepared to satisfy the jury by clear and satisfactory evidence of every essential element that would go to set aside that deed and to establish an equitable estate in the party so claiming. And this is especially so after the long lapse of years; thirty-eight years this deed stood unattacked; no effort to establish a trust; nobody, so far as the evidence in this case shows, alleged that there was an outstanding title or an equitable estate in Elizabeth Rumbaugh or Byers; and so, after this long lapse of years it is our duty to say to you that a high quality of evidence, clear, convincing and satisfactory, is required to establish a resulting trust against a legal title.] [2]
    January 7, 1907:
    Verdict and judgment for defendant. Plaintiff appealed.

      Errors assigned were (1, 2) above instructions, quoting them.

      Paul H. Gaither, with him Cyrus E. Woods, for appellant.

      C. E. Heller, with him James S. Moorhead, for appellee.
   Per Curiam,

The first assignment of error is to the charge of the judge below that to justify a verdict for the plaintiffs it would be necessary for the jury to find “ not simply that Elizabeth Byers had money or an estate in March, 1867, or not simply that she was the source from which the money was obtained, but that it was invested in some way under an understanding or agreement between the husband and wife, or with the intent that the title was to he for her; that she was paying the purchase money with the intent that the property should enure to her, or that it was done with her knowlege or consent. It would not do to simply say that because the husband obtained from his wife money and then made an investment of that money that a trust would arise. It must be more than that. It arose, if at all, out of some breach of duty, or out of some violation of an agreement or some understanding between the parties ; because a husband by loan or by gift or in other ways that would not make a trust, might obtain from his wife money or sufficient money to pay the consideration.”

This was a correct statement of the law. The doctrine of resulting trusts is founded on a presumption of the intent of the parties arising from and shown by their acts at the time of the transaction. The principle is thus concisely stated by our late Brother Clakk in Bigley v. Jones, 114 Pa. 510 : The presumption is, in the absence of all rebutting circumstances, that one who pays the purchase money of land, intends to become the owner of it, although as a matter of convenience or through an arrangement of the parties for collateral purposes the conveyance may be in the name of another.” In the application of this principle to cases arising from use by a husband of his wife’s money in paying for land taken in his own name it has been expressly held that “ more must be shown than that the wife’s money went into the property. It may have done so, and yet .been a mere loan or gift from the wife. To establish a resulting trust which is to overturn a record title of nearly thirty years, it must appear by clear proof that her money went into the property at the inception of the title; that the purchase was made by her or for her account, and that the placing of title in her husband was in violation of an agreement by which the deed was to be made to her: ” Crawford v. Thompson, 142 Pa. 551; Cornman’s Estate, 197 Pa. 125. It must be shown “ that at the time the land was purchased and paid for and title thereto secured that it was the understanding and intention (of the wife) to take title in her own name or in the name of her husband in trust for herself to the extent of the interest paid for by her separate estate: ” McCormick v. Cooke, 199 Pa. 631. Such understanding or intent may always be shown by the actions of the parties, their claims or declarations in presence of each .other, and other co-temporary circumstances. Cases like Bigley v. Jones, 114 Pa. 510, have been ruled on the evidence of such intent. But the necessary facts must not only be shown but must also be averred in the pleadings. In McCormick v. Cooke, 199 Pa. 631, tbe bill was dismissed on demurrer for failure to set up such essential ground for relief.

The second assignment of error is to the reference by the learned judge in his charge, to the length of time that the title had stood in the husband’s name. But long acquiescence in an asserted title, or delay in challenging it, is always a circumstance of weight in determining the validity of the challenge. The cases already cited, particularly Crawford v. Thompson, 142 Pa. 551, sustain the correctness of the charge in the present case.

Judgment affirmed.


author: Mr. Justice Elkin,

text:
    Gorgas v. Saxman, Appellant.

      Mortgage — Tender—Weak-minded persons — Act of June 25, 1895, P. L. 300.
    Where a mortgagor with the aid of a physician satisfies himself that the mortgagee is of unsound mind, and acting upon this belief makes no tender of an installment due on the mortgage, and does not pay the installment into court, he will be liable for interest on the installment until the time when it is subsequently paid; and this is the case although the mortgagee was, subsequently to the time when the installment was due, in proceedings under the act of June 25, 1895, found to be of weak mind.
    The act of June 25, 1895, operates prospectively in order to protect a person, not a lunatic, nor an habitual drunkard, but of weak mind, against his own improvidence thereafter. The power to find how long the person has been weak-minded, is not conferred by the act.
    Argued Oct. 11, 1906.
    Appeal, No. 175, Oct. T., 1906, by defendant, from order of C. P. Westmoreland Co., Feb. T., 1906, No. 228, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Samuel L. Gorgas v. Marcus W. Saxman.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Scire facias sur mortgage. Before Doty, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court made absolute rule for judgment for want of a sufficient affidavit of defense'.

      January 7, 1907:

      Error assigned was the order of the court.

      James S. Moorhead, with him Robert W. Smith,

    for appellants, cited: Gensemer’s Estate, 170 Pa. 96.

      W. C. Peoples, with him W. M Potter and D. S. Atkinson,

    for appellee, cited: Black’s Estate, 132 Pa. 134 ; Fritz v. Heyl, 93 Pa. 77; Thornton v. Britton, 144 Pa. 126; Hummel v. Brown, 24 Pa. 310; Schaeffer’s Estate, 9 Sergeant & Rawle, 263; Bouillou’s' Est., 9 W. N. 0.14; King v. Kelly, 51 Pa. 36.
   Opinion by

Mr. Justice Elkin,

Saxman was the mortgagor; Gorgas .the mortgagee. Two installments of the mortgage in the sum of $7,000 each, together with the accrued interest thereon, were due and unpaid. A scire facias was issued to enforce payment of the same. The appellants do not deny the amount of the payments due nor the accrued interest thereon up to a certain time, but claim that before the payments were made the mortgagor received notice from some source, not disclosed by the pleadings, that he should not pay Mr. Gorgas, because he was of unsound mind and not competent to transact business. Acting upon this information, he called upon Mr. Gorgas in company with a physician and having satisfied himself that the mortgagee was not of sound mind, did not either tender the amount of money then due, or make any further arrangement in reference to the payment of the same. It is contended that what was done was equivalent to a tender, and that interest should not be charged since the date of the discovery of the alleged inability of mortgagee to receive payment. The court below, very properly, held under these circumstances, that a legal defense was not made out by the affidavits filed, and directed judgment to be entered in favor of the plaintiff. In this we see no error. The debt was one of record. The mortgage provided for the payment of certain sums at certain times with accrued interest thereon. There was no tender in fact made to stop the interest, nor was anything done which could be construed in law as equivalent to a tender.

It is argued that the good faith of the mortgagor in making an effort to ascertain the mental condition of the mortgagee, and in relying on the information thus obtained, is shown by the subsequent proceedings instituted in the courts of Beaver county under the Act of June 25, 1895, P. L. 800, in which the mortgagee was found to be of weak mind and a guardian was appointed. It will be observed, however, that a proceeding under the provisions of that act is different in scope and character from one de lunático inquirendo. It is an act intended for the protection of persons unable to care for their own property, and is not so far reaching as a proceeding in lunacy. The power to find how long the person hath been weak-minded, and to make decrees regarding the disposition of property made prior thereto, is not conferred by the statute. It is apparent that the act was intended to operate prospectively, in order to protect a person, not a lunatic, nor an habitual drunkard, but weak-minded, against his own improvidence thereafter. Indeed, it is provided in section five that from and after the entry of the decree, the weak-minded person shall be incapable of making a contract, or gift, or any instrument in writing, thus clearly fixing the time when in contemplation of the law he is no longer able to act for himself, and giving notice to the world that thereafter all contracts relating to his estate must be made with the guardian and approved by the court. So far as the record shows, no legal reason appears why the mortgagor would not have been justified in making payment to the mortgagee, and if such payment had been made, and the record properly receipted it would have been held to be a good acquittance. Again, if the mortgagor thought he could not safely make payment to the mortgagee, and had desired to stop interest, he could have asked leave to pay the money into court, and permission so to do would have relieved and fully protected him. The argument so' ably made by the learned counsel for appellants, is not only ingenious but it has the additional merit of being founded in equity, but it is clearly open to the objection, which in this instance must be sustained, that a rule made to cover the exigencies of a particular case makes bad law generally.

Judgment affirmed.


text:
    Sydney v. Linton, Appellant.

      Nonsuit — Delay in returning commission — Discretion—Review.
    The Supreme Court will not review the discretion of the court below in nonsuiting a case because of unreasonable and improper delay of the plaintiff in securing the return of a commission to take testimony.
    The correctness of a nonsuit must be decided on the facts as they were before the court at the time. Facts subsequently appearing by depositions or otherwise might authorize a judge to take off the nonsuit, but could not make it error for him not to do so.
    Argued Oct. 11,1906.
    January 7, 1907:
    Appeal, No. 59, Oct T., 1906, by defendant, from order of C. P. Armstrong Co., June T., 1897, No. 63, refusing to take off nonsuit in case of Algernon Edward Sydney, Ancillary Administrator of Samuel Lewis, to use of H. A. Colwell v. Elwina Linton.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Foreign attachment in assumpsit. Before Smith, P. J., specially presiding.
    The opinion of the Supreme Court states the case.

      Error assigned was refusal to take off nonsuit.

      Thomas Watson and R. A. McCullough, with them George R. Wallace, for appellant.

      R. L. Ralston, for appellee.
   Per Curiam,

Following a suggestion made by this court when the case was here last (207 Pa. 320) the learned judge below on petition, answer and rule to show cause, awarded an issue to determine what payments had been made on the judgment, by the defendant or by her co-obligor, for which she was entitled to credit. This issue was framed by the court September 10, 1904, and was put on the trial list for December term of that year, but the plaintiff in the issue, present appellant, failing to appear it was continued to the March term, 1905, when it was again continued on appellant’s application, because a commission issued by her to take testimony in England had not been returned. Trial was again called in June, 1905, and the commission having been refused admission in evidence because improperly executed, the court again continued the trial until August 15, apparently with a peremptory direction that the case must be tried then. At that date the testimony not being produced, the court made the following order: “Now August 15, 1905, this case having been on trial June 8,1905, at which time the depositions were offered, which were wholly contrary to the rules of the Armstrong county court, and illegal, which caused an adjournment until the date August 15,1905, in order that the plaintiff might secure the testimony in a proper and legal manner, and, in the opinion of the court, time sufficient having elapsed in which to secure the testimony, we do not think this reason to continue the case is sufficient to move us to refuse the granting of the nonsuit. This is especially true in view of the fact that this court was three times called to Kittanning for trial of this case, as he was especially certified from the president judge of Armstrong county. It seems like trifling with justice, and in view of all the facts and circumstances connected with this, and further, in view of the fact that there is no testimony to sustain the contention of the plaintiff, we grant the motion for non-suit.”

It certainly cannot be maintained on this state of facts that the court was unduly harsh. The ease was old, had been twice here on appeal, and since the last appeal had been continued three times.

The depositions, however, subsequently arrived, and the judge though not bound to do so, did in fact examine them; The main stress of appellant’s argument is that on this examination he reached an erroneous conclusion. Of this we have not been convinced, but even if our views had differed from his we should not be justified in reversing the judgment, for it was a nonsuit and its propriety must be determined by the facts as they existed at the time of its entry.' The subsequent hearing which he gave appellant on the depositions was an act of grace which might have authorized him to open the judgment and take off the nonsuit, but his refusal to do so did not make the nonsuit erroneous.

Judgment affirmed.


text:
    Armstrong County Trust Company v. Boozer.

      Sheriff’s sale — Setting aside sale — Evidence—Practice, C. P.

    Where the essential facts averred in a petition to set aside a sheriff’s sale, are aliunde the record, and not verified by affidavit, the petition will not be granted.
    Such a petition should set forth the amount the property sold for, and at least the probable amount that it would bring on a resale.
    Submitted Oct. 11, 1906.
    Appeal, No. 102, Oct. T., 1906, by Polly Catherine Boozer, from order of C. P. Armstrong Co., March T., 1906, No. 33, dismissing petition to set aside sheriff’s sale in case of Armstrong County Trust Company v. George Boozer.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Petition of Polty Catherine Boozer, a lien creditor of defendant, to set aside sheriff’s sale, on the ground that at the time the sale was made an attack had been made on the validity of the petitioner’s judgment which put her at great disadvantages in bidding at sheriff’s sale and that for this reason the price which the property brought at the sale was grossly inadequate.
    Reed, P. J., specially presiding, filed the following opinion :
    And now, March 22, 1906, the essential facts averred in this petition which would move the court to grant a rule thereon and to set aside the sale are aliunde the record, and the failure to verify them by affidavit is fatal to the application. Moreover, the petition is defective in not setting forth the amount the property sold for and at least the probable amount that it would bring on a resale. So far as the condition of the records referred to is concerned, the petitioner had the same information and knowledge possessed by the execution creditors and purchaser of the property, and it is not apparent that she was not in as good position to protect her judgment at the time of the sale as she would be on a resale. Furthermore, it would not be fair to the purchaser to permit her to stand by and put upon it the burden of bidding up the property for the protection and benefit of both her and itself, and then allow her to come in and have the sale set aside because the property was knocked down to it at less than what she alleges is its actual value.
    January 7, 1907:
    'For the reasons stated- the rule prayed for is denied and the motion to set aside the sale refused.

      Error assigned was the order of the court.

      Thomas ,C. Frame, J. P. Culbertson and W. J. Christy, for appellant.

      Ross Reynolds, for appellee.
   Per Curiam,

Judgment affirmed on the opinion of the court below dismissing the petition.


text:
    Gallagher v. Hicks.

      Mines and mining — Coal lease — Title—Judgment—Sale—Lease.
    Coal or other minerals may be severed from the surface of the land, and may run in its own different line of title without reference to the other.
    A contract regarding coal in place may be a sale absolute, a conditional sale, or a lease.
    An owner of land leased to another “all the coal known as the upper Free-port seam, lying or being in, upon or under” a certain tract of land “with the sole and exclusive right” of talcing coal, etc., in consideration whereof the lessee agreed to pay the lessor, “the sum of six cents per ton for each and every ton of 2,240 pounds of coal mined or dug from the premises, during the continuance of this lease, which rent or royalty shall be paid monthly.” It was further agreed that if sufficient coal was not obtained to make the royalty $50.00 per month, yet the second party was to pay the $50.00 per month, and the payment over and above the royalty earned, was to be considered as an advance payment for coal afterwards mined during the year. The lessee had the right to surrender the lease at any time on payment of all royalties due, and on the other hand the lessor could declare the lease forfeited if the royalty should remain unpaid for three months after it should be due. Held, that the lessor had a continuing interest in the land which would be bound by a judgment against him, and that under a sheriff’s sale of the right, title and interest of the lessor, the right to the royalties passed to the purchaser,

      Argued Oct. 11, 1906.
    Appeal, No. 113, Oct. T., 1906, by The Apollo Trust Company, from decree of C. P. Armstrong Co., Dec. T., 1905, No. 70, on bill in equity in case of Andrew Gallagher, S. S. Jack, C. H. Truby and R. D. Fiscus v. Lewis W. Hicks, W. G. Chambers, S. M. Nelson and The Apollo Trust Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Bill in equity for an account. Before Patton, P. J.
    The opinion of the Supreme Court states the case.

      Error assigned was the decree of the court requiring the defendants to account to the plaintiffs for the royalties accruing under the lease from W. G. Chambers to Lewis W. Hicks.

      Walter J. Gruthrie, for appellant.
    After severance of the surface from the underlying strata, the mineral right is an independent interest in land, and forms a distinct possession, is held upon a distinct title and is as much the subject of sale, devise or inheritance and of separate taxation and incumbrance as the surface: Hosack v. Crill, 204 Pa. 97; Lillibridge v. Coal Co., 143 Pa. 293 ; Dorr v. Reynolds, 26 Pa. Superior Ct. 139 ; Delaware & Hudson Canal Co. v. Hughes, 183 Pa. 66.
    Each estate may be occupied, conveyed, incumbered, sold by the sheriff or allotted in partition without any effect upon the other: Caldwell v. Copeland, 37 Pa. 427; Armstrong v. Caldwell, 53 Pa. 284; Kingsley v. Hillside Coal & Iron Co., 144 Pa. 613 ; Sheets v. Allen, 89 Pa. 47 ; Finnegan v. Stineman, 5 Pa. Superior Ct. 124; Clement v. Youngman, 40 Pa. 341; Hosack v. Crill, 204 Pa. 97 ; Lazarus’s Estate, 145 Pa. 1; Kinports v. Boynton, 120 Pa. 306; Fryer v. Rishell, 84 Pa. 521; Caldwell v. Copeland, 37 Pa. 427; Chartiers Block Coal Co. v. Mellon, 152 Pa. 286.

      J. W. King and Charles M. Thorp, with them Ross Reynolds and A. Leo Weil, for appellees.
    After the lease to Hicks, Chambers had an interest in the coal, which was an interest in land, and was bound by the appellees’ judgment and passed to the appellees by the sheriff’s sale, whereupon the appellees became entitled to receive the royalties and rents payable by Hicks thereafter: Stewart v. Coder, 11 Pa. 90; Denniston v. Haddock, 200 Pa. 426; Coolbaugh y. Lehigh, etc., Coal Co., 218 Pa. 28.
    January 7, 1907:
   Opinion by

Mr. Chief Justice Mitchell,

The learned judge below was quite right in holding that this case is ruled by Denniston v. Haddock, 200 Pa. 426, and Coolbaugh v. Coal Co., 213 Pa. 28. Much of the argument of appellant is wide of the mark. There is no question at all that coal or other minerals may be severed from the surface of the land, and may run in its own different line of title without reference to the other. Nor is it disputed that a contract regarding coal in place may be a sale absolute, a conditional sale or a lease. There is nothing revolutionary in the cases referred to. In Denniston v. Haddock it was pointed out that in Hope’s Appeal, 29 W. N. C. 365, there was in fact a sale of the coal in place and the case was correctly decided on that basis. But an unfortunate expression in the opinion had been the starting point of a tendency to class together all contracts about coal in place as absolute sales without due regard to each particular contract and the obligation to interpret it by its own terms and intent. What Denniston v. Haddock and the cases which have followed it did was to check the tendency to indiscriminate lumping of all such contracts together and to recall in regard to them the true principles of construction applicable alike to all contracts.

The question in the present case is whether after the lease Chambers had such a continuing interest in the land as would be bound by a judgment subsequently obtained against him. Chambers leased to Hicks “ all the coal known as the upper Freeport seam, lying or being in, upon or under ” a certain tract of land “ with the sole and exclusive right ” of taking coal, etc., in consideration whereof Hicks agreed to pay Chambers, “ the sum of six cents per ton for each and every ton of 2,240 pounds of coal mined or dug from the premises, during the continuance of this lease, which rent or royalty shall be paid monthly.” It was further agreed that if sufficient coal was not mined to make the royalty $50.00 per month, yet the second party was to pay the $50.00 per month, and the payment over and above the royalty earned, was to be considered as an advance payment for coal afterwards mined during the . year. Hicks had the right to surrender the lease at any time on payment of all royalties due, and on the other hand Chambers could declare the lease forfeited if the royalty should remain unpaid for three months after it should be due. These terms are not substantially distinguishable with regard to the lessor’s interest from those in Coolbaugh v. Coal Co., 213 Pa. 28, and the language of our Brother Brown in that case is fully applicable here : “ The agreement of the parties is that the minimum rental of $20,000 may be applied by the lessee on account of the purchase money of the coal, provided it will actually ijurchase and acquire title in the manner pointed out in the agreement, viz., by mining it within six years. Until it is so mined the legal title remains in the lessors, and if not taken from them within six years during the continuance of the lease in the manner stated, the money paid them belongs to them as rental for their land which had been occupied by the lessee, though' not used and appropriated by it as it had the ■right to do. This was just the situation when the interest of Dana in the coal land was seized and sold under the execution against him. If the coal had all been mined, the worked-out space would have reverted to him, and what had not been worked out was under a continuing contingency of reverting to him by a forfeiture of the lease. He still had an interest in the coal as land, title to portions of which, and in the end to all of which, he had agreed should pass from him and become vested, not only equitably, but legally, in the lessee, as from time to time it acquired the legal title to the coal by mining and removing it. But until the legal title was so taken from him it remained in him, as in the ease of any vendor of real estate. This is the title that was still in him when it was sold from him by the sheriff to Birbeck and Van Horn, and having acquired it, they are now entitled to all the rights under it.”

Chambers therefore had a continuing interest in the land which was bound by the judgment against him, and as under the levy arid sale the sheriff conveyed to the purchaser all of Chambers’ “ estate, right, title, interest, property, claim and demand whatsoever,” the right to the royalties passed as it did in Coolbaugh v. Coal Co.

As there were no disputed facts in the case but only a question of law oil the construction of a writing which involved complainant’s right to an account, a corfrt of equity was justified in taking jurisdiction.

Decree affirmed.