author: Mr. Justice Mestrezat,

text:
    Brandon et al. v. McKinney et al., Appellants.

      Real estate — Conversion by will — Reconversion—Intention—Acts of parties — Judgments.
    1. While the intention on the part of the persons beneficially interested to reconvert into realty real estate of a decedent which had by will been converted into personalty must clearly and unmistakably appear, yet a direct election is not necessary. Any act or acts which disclose plainly an intention to hold the real estate as such are sufficient.
    2. Where it appears that the parties beneficially interested in real estate directed by a testator to be sold, took control of the real estate the year following testator’s death, leased the premises for oil and gas purposes, issued pipe line division orders for oil procured from the leases and made a deed granting a right of way to a railroad company across the premises, such acts are properly held to constitute an election as of the date of the deed to the railroad company, and judgments entered thereafter against the parties became a lien on the property.

      Equity — Jurisdiction—Conversion—Written evidence — Questions of court.

    3. A court of equity has jurisdiction to decree partition where the issue is a question of reconversion and this depends upon evidence in writing disclosing the intention of the parties.

      Appeals, C. P. — Objection—Time for objection — Insufficiency of pleadings.

    4. It is too late for a party on appeal to complain for the first time of the insufficiency of the averments in a bill in equity, after the testimony had been given before the chancellor and the facts found and a decree made.
    Argued Oct. 11, 1911.
    Appeal, No. 197, Oct. T., 1911, by defendant, from decree of C. P. Butler Co., Dec. T., 1907, No. 6, in Equity, granting partition in case of W. D. Brandon and Ella Harley, Guardian of Edna E. Harley, v. Margaret McKinney, widow, James McKinney, M. H. McKinney, D. T. McKinney, T. D. McKinney, W. S. McKinney, Robert McKinney, H. B. McKinney, A. F. McKinney, Mrs. Mary B. Wahl, Mrs. Clara McKinney, E. M. Saylor and T. W. Terwilliger, A. F. McKinney, and Robert McKinney, executors of the last will of C. A. McKinney, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    ■ Bill in equity for a partition. Before Galbreath, P. J.
    It appeared by the record that C. A. McKinney died .March 13, 1887, testate and seized of the land sought to be apportioned. By his last will and testament he directed that sufficient of his land be sold to pay all just claims against his estate. Of the balance, one-third was given to his wife, Margaret, and minor children, should there be any, and he directed that after the decease of his wife, his farm be sold and the proceeds divided equally among his Surviving children. Two of his sons, Amos, and Robert, were appointed executors of his will.
    On December 17, 1888, a lease for oil and gas purposes on a portion of the land was made by the widow and heirs of decedent to I. G. Smith by virtue of which operations were subsequently carried on and oil produced and a one-eighth royalty interest thereof was run to the credit, in the pipe line, of the widow and children of C. A. McKinney, deceased, pursuant to a division order signed by all of them and delivered to the National Transit Company February 28, 1891, certifying that they were the legal owners of said royalty interest and the proceeds of sale of said royalty interest were received by said widow and heirs. This lease was joined in by leave of court by W. D. Brandon as guardian of Margaret Eva McKinney, then a minor, subsequently married to George H. Harley. At the time of the execution of this division order, which was after her marriage, she was of lawful age and signed the same and thereafter received her portion of the oil.
    A lease for oil and gas purposes bearing date October 15, 1889, to Stewart and Hoffius was executed by the widow and all the children of C. A. McKinney, deceased, for thirty acres of said land, which lease was signed also by William Wahl and George H. Harley, husbands of the two • married daughters of decedent, but was not acknowledged ' in any form by said married daughters. Operations were carried on under said lease and oil was obtained and a division order bearing date October 7,1890, signed by the widow and all the heirs of said decedent was delivered to the National Transit Company and the oil and the proceeds thereof were divided accordingly.
    A lease for oil and gas purposes was also made to Dale and Thompson for a portion of said land, the date of which lease and the names of the parties executing it do not appear as the contract of lease could not be found. A bonus of $600 was paid on said lease which was used to pay debts as far as required against the estate of said decedent and the balance thereof was divided among the widow and heirs. Operations were carried on under said lease and oil obtained in paying quantities and a division order dated November, 1890, signed inter alios by the widow and all the children of C. A. McKinney, deceased, representing the one-eighth royalty in the oil produced under said lease, was delivered to the National Transit Company and the proceeds of the sale of the royalty interest were received by the said widow and children of said decedent accordingly during the time oil was produced from said leasehold.
    A lease for oil and gas purposes of a portion of said land and signed by all the defendants was given to E. M. Saylor and T. W. Terwilliger dated September 1, 1905, under which the said land had been and is now being operated for oil and gas purposes and large quantities of oil from time to time have been produced from said land. Operations thereon were begun about the latter part of November, 1905, and are still being carried on and oil is still being produced therefrom and the proceeds of sale of the royalty interest are being distributed to the widow and heirs. This lease was j oined in by Ella Harley, trustee and guardian of Edna Harley, minor daughter of Margaret E. Harley, deceased.
    A right of way to the Pittsburg, Harmony, Butler and New Castle Street Railway Company bearing date April 7, 1906, for the location, construction and operation of a street railway across said land in consideration of the payment of $550, being $50.00 to the widow and each heir of the decedent, signed by the widow and surviving children of said decedent and subsequently joined in by Ella Harley, guardian of Edna Harley, was made and delivered to said railway company. The record of said right of way shows the acknowledgment thereof by all the grantors including Mary B. Wahl and her husband, William Wahl, but the acknowledgment of Mary B. Wahl is not separate and apart from her said husband.
    On October 31, 1904, a judgment was entered at C. P. No. 103, December Term, 1904, in favor of J. A. Painter v. D. T. McKinney, a son of decedent, and Margaret McKinney, his widow, which judgment was entered by confession on warrant of attorney with waiver of inquisition and agreement of condemnation. On November 5, 1906, a writ of vend. ex. with clause of fi. fa. issued on said judgment by virtue of which the interest of the defendants in the land sought to be partitioned was levied upon, which writ with levy indorsed, was returned by order of attorney, December 3, 1906. On January 19, 1907, written notice was served on Margaret McKinney, the widow- and life tenant under the will of her husband, C. A. McKinney, deceased, that application would be made to the court of common pleas of Butler county on February 4, 1907, at ten o’clock a. m. for a writ of vend, ex. in said case. On said February 4, 1907, a motion was made in said court with proof of service of said notice on Margaret McKinney, that a writ of vend. ex. be directed to issue to sell the life estate of Margaret McKinney, aforesaid, and the order awarding the said writ was accordingly made without objection. Pursuant to said writ, an alias writ of vend. ex. issued on said February 4, 1907, on which, after due advertisement, the interest of the defendants in said land was sold at public outcry by the sheriff to W. D. Brandon, one of the plaintiffs herein, to whom deed was duly made and acknowledged March 19, 1907.

      On February 4, 1891, judgment was entered in said court at C. P. No. 253, March Term, 1891, in favor of Jennie P. Mates for use v. M. H. McKinney, another of decedent’s sons, and on execution issued thereon, the interest of said defendant in said land was levied upon and sold to W. D. Brandon, aforesaid, to whom deed was duly made bearing date December 13, 1893.
    On October 18, 1901, a judgment was entered in common pleas court of Butler county on judgment note on warrant of attorney with waiver of inquisition and agreement of condemnation. Scire facias issued thereon November 16, 1906, and an alias scire facias December 17, 1906, on which judgment was entered at No. 58, September Term, 1907, in favor of George H. Harley for use v. W. S. McKinney, one of the defendants named in the pending bill and a son of said decedent, on which judgment execution issued and the interest of the said W. S. McKinney in said land was levied upon and sold by the sheriff to Ella Harley, guardian of Edna Harley, and deed delivered bearing date December 3, 1907.
    The court awarded partition.
    On exceptions to 'the adjudication Galbreath, P. J., on March 22,1909, filed the following opinion:
    On the trial of this case, little stress was laid by counsel for plaintiffs on the effect on the question at issue of the various enabling statutes of recent years by which the rights and powers of married women are enlarged. On the argument of the exceptions filed, the effect of those enactments was urged upon the court’s consideration.
    The Act of June 8, 1893, P. L. 344, sec. 1, provides that “Hereafter a married woman shall have the‘same right and power as an unmarried person to acquire, own, possess, control, use, lease, sell, or otherwise dispose of any property of any kind, real, personal or mixed and either in possession or expectancy, and may exercise the said right and power in the same manner and to the same extent as an unmarried person, but she may not mortgage or convey her real estate, unless her husband join in such mortgage or conveyance.” The same provisions in substance are found in the Act of June 3, 1887, P. L. 332. Under these acts, however, she could not make a valid conveyance although her husband was joined therein, unless it were separately acknowledged by her, as required by the Act of February 24, 1770, 1 Sm. L. 307: Bingler v. Bowman, 194 Pa. 210. However, by the Act of April 4, 1901, P. L. 67, the acknowledgment of a married woman may be, “In the same manner and form as though said married woman were feme sole; said acknowledgment to have the same force and effect as if taken separate and apart from the husband of said married woman.” Any contract made by a married woman touching her real estate in which her husband joins is good without acknowledgment, providing it is not a mortgage or conveyance of the property: McCoy v. Niblick, 221 Pa. 123. In the discussion of this case in the former opinion, to which the pending exceptions were filed, we held that a married woman may elect to reconvert, but to have this effect by implication growing out of acts in pais, those acts must be performed with the same formalities requisite to convey her separate estate, in support of which conclusion we cited 2 American and English Decisions in Equity,. p. 96, and cases there referred to. We are not convinced that this conclusion was error, although in the absence of the authority quoted and the trend of judicial decision, as evidenced in the cases referred to, we would be inclined to hold that a married woman could elect to reconvert by receiving the proceeds of real estate, especially when the proceeds so received were essentially a part of the corpus of the land, as in the case of the receipt of a royalty interest from oil. In the light, however, of the authorities to which we have referred, we would not seem to be justified in so holding. The reason for the rule laid down is possibly to be found in the fact that where an election is predicated upon an act which is essentially a sale of the real estate, which is the case where an oil lease has been given, that act can only be evidenced by performance in the statutory way on the part of a married woman. The question remains, however, whether, in the light of the enabling statutes, before referred to, any of the acts on which plaintiffs seek to predicate a reconversion come within the rule as above held. An election to reconvert may arise by implication out of the acts of the parties and it is necessary that all should elect. It is not necessary, however, that all should elect at the same time, or in the same way, the question being, whether all have at some time and in some way, either expressly or by implication, elected to take the land as such, instead of the proceeds thereof.
    As to the eight sons of the decedent, C. A. McKinney, there can be no doubt, we think, that their execution of leases of the land for oil and gas purposes, reserving a royalty to themselves, and the receipt of such royalty in kind for a period of years pursuant to division orders signed by them, gave rise to an implied election to take the land as such. These leases were essentially a sale of the oil in place, they were dealing with the land as such. If, in addition to those, there was an election to take the land in its original character by the two daughters, Mrs. Harley and Mrs. Wahl, the reconversion would be complete. In the former opinion, we predicated the conclusion that no reconversion had taken place largely upon the fact that although Mrs. Wahl had joined with the others in the execution of leases of the land for oil purposes, had signed division orders and received her share of the proceeds of the oil, and although she and her husband had joined with all the other heirs in executing a right of way to the railway company and had acknowledged it, yet, there had been no separate acknowledgment by her, thus overlooking the fact that this is no longer necessary since the aforesaid act of 1901 was passed. In view of that enactment, it was not necessary that she should separately acknowledge it.
    At this point, it becomes necessary to consider the effect of a paper executed by a number of the McKinney heirs before the execution of said right of way and set forth in full in the fourteenth finding of fact. It is a declaration by those signing it that it was not their intention in the execution of leases for oil and gas purposes, which had been or might be made, nor in the execution of any right of way for street car purposes or otherwise to convert the property into , land contrary to the intent of the will of their father, C. A. McKinney, deceased. Whatever effect this instrument might have on the act they were about to perform or which they might perform in the future touching the land, yet, we think it could not have the effect of changing the character of that which they had already done in years gone by so as to nullify an election already made by them or any of them and growing as a legal sequence and by implication of law out of their acts. In short, they could not, we think, by such a declaration undo the legal effect of their former acts. Its effect on the right of way then in contemplation is problematical.. Assuming that it would negative an implication of an election to reconvert on the part of those signing it, yet it would not have that effect in the case of those not joining in it, and although Mrs. Wahl is named in the body of the writing, yet, it is not signed by her and is not, therefore, a declaration of intention by her. Her execution of the right of way to the railway company stands unaffected by any declaration contained in the writing referred to and her execution of said right of way was, we think, an election in law to take the land as such. It was the conveyance of a right in or upon the land and growing out of the land and running with the land, and having in it the possibilities of duration beyond the time when conversion would take place under the will, and thus manifesting an intent on the part of those granting it to deal with the land as such beyond the time of that event. Such right of way could not be fastened on to a mere right to receive the proceeds of the sale of the land. As to Mrs. Wahl, therefore, we conclude that there was an election to reconvert when she, jointly with her husband, executed and acknowledged such right of way, April 7, 1906.
    In the former discussion of this question, we said that the acts which will have the effect of a reconversion of the property must be joined in by all the parties in interest, “who must be sui juris or if not may possibly be authorized thereto by the proper court, in which case the election to reconvert is exercised by the court in order to preserve or further the interest of the person under disability.” This was predicated on the citation of authorities to that effect found in 2 American and English Decisions in Equity, p. 96, and we then had in mind its application to the case of Mrs. Harley, who, prior to her marriage was Eva McKinney, a daughter of the decedent. But, as we at that time concluded that there had been no election on the part of Mrs. Wahl, it did not seem necessary to pass on the question of an election by or on behalf of Mrs. Harley. It now becomes necessary to do so.
    On March 21, 1889, Eva McKinney, then a minor, but who would attain her majority on September 17, following, chose as her guardian W. D. Brandon, Esq., who was accordingly appointed. The petition of Eva McKinney for appointment of guardian sets out, inter alia, that she is the daughter of C. A. McKinney, deceased, and is the owner of the undivided one-tenth interest in a tract of land containing eighty acres, “being the farm lately owned by her father and subject to her mother’s interest, as widow.” On the same day, the guardian presented his petition to the court setting forth that his ward was the owner of an undivided one-tenth interest in said eighty acres of land; that the widow and remaining heirs, all of age, had executed a lease of twenty-five acres of said land to I. G. Smith for oil and gas purposes; that the minor had agreed to join in said lease and for that purpose had said guardian appointed; that operations under said lease had already begun and praying that he be permitted to join in said lease, a copy of which was attached to petition. The ward also joined in the petition. The court thereupon made the decree setting forth that it would be for the best interest of the minor that her guardian execute said lease and authorized him so to do, which decree was in due form complied with by said guardian. This decree necessarily involved an adjudication that the ward’s interest was an interest in the land and authorized the guardian to deal with it as such and in a way that was deemed to be for the best interest of the ward. This having been done in the ward’s interest and by authority of the proper court must be taken, we think, as the equivalent, in its legal consequence, of the same act when performed by one sui juris.
    We conclude, therefore, that all the children of the decedent, in the several ways hereinbefore set forth have elected to take the land as such and that the reconversion became complete with the execution by Mrs. Wahl on April 7,1906, of said right of way to said railway company. The effect of this was to give back to the land its original and actual character and to give to all those theretofore entitled to the proceeds of sale under the will an interest in the land as such, commensurate with their respective shares in the proceeds of sale and a sale of any interest thereafter made as land would vest title thereto in the purchaser.
    Applying this conclusion to the facts as found, we have two sales made on executions after the date when the reconversion became complete, as follows: First, sale made by the sheriff March 19, 1907, of the interest of D. T. McKinney and Margaret McKinney, son and widow of decedent, on the‘judgment in favor of J. A. Painter entered October 31, 1904, as set forth in the fifth finding of fact. Although this judgment was entered before the time the reconversion became complete, yet, the actual levy made on the land after that event would attach to the land as such, and a sale thereon would pass title thereto, we take it, as in the case of after acquired land, when an execution issued on a previous judgment and levied upon after acquired lands is a lien thereon: Wilson’s Appeal, 90 Pa. 370. In the former opinion, we held that the sale made on said judgment served to pass the title of Margaret McKinney, widow, to the purchaser, W. D. Brandon, but not the interest of T. D. McKinney. We now conclude that the said sale passed to the purchaser the undivided one-tenth interest of the other defendant, D. T. McKinney, as well. Second, the other sale made after the time of reconversion on April 7, 1906, was that of the Interest of W. S. McKinney on the judgment entered October 18, 1901, in favor of George H. Harley for use, on which judgment on sci. fa. was entered at No. 58, September Term, 1907. The interest of the defendant was sold by the sheriff to Ella Harley, guardian, to whom deed was delivered December 3, 1907, as set out in the seventh finding of fact.
    In conformity with these views the first, fourth, fifth, sixth, seventh, eighth, ninth and tenth exceptions filed on part of the plaintiffs generally are sustained. The exception filed on part of Clara B. and Robert McKinney is also sustained and the court finds the facts as in said exception set forth, but the entry of the judgment therein set forth did not become a lien on any interest of the defendants in the land for the reason that reconversion had not yet taken place until after the entry of said judgment and sale thereon, in consequence of which, no interest in the land passed to the purchaser. All other exceptions are dismissed and the former conclusions of law are modified in accordance herewith and restated as,follows:
    1. The will of C. A. McKinney, deceased, worked an equitable conversion of his land into personalty as to his children.
    2. The said land has been reconverted into its original character as land through the election by implication of law to so reconvert by all the children of said deceased, which said election became complete on April 7, 1906.
    3. W. D. Brandon, one of the plaintiffs, is the owner of an undivided one-third interest in the land sought to be partitioned during the lifetime of Mrs. Margaret McKinney, widow of the deceased. He is also the owner of an undivided one-tenth interest in the said land in fee as purchaser thereof at public sale after reconversion, as aforesaid, said interest being subject to said life estate.
    4. Ella Harley, as trustee and guardian of Edna Harley, is the owner of an undivided two-tenths interest in said land, to-wit: The one-tenth bequeathed by Eva Harley, formerly Eva McKinney, to her husband, George H. Harley, who conveyed the same to Ella Harley in trust for Edna Harley as set forth in the third finding of fact; also an additional one-tenth purchased by said Ella Harley, guardian, at sheriff’s sale, as hereinbefore set forth, said interests being likewise subject to said life estate.
    5. That the other heirs of C. A. McKinney, deceased, except D. T. and W. S., whose interests were sold, are the owners of interests in said land subject, as aforesaid, commensurate with their respective interests in the proceeds of sale under the will of said deceased prior to the reconversion of the land.
    6. That the plaintiffs herein are entitled to have partition of said land.
    On exceptions to final decree Galbbeath, P. J., filed the following opinion:
    In the opinion filed in this case, September 8,1908, after hearing on bill and answer the facts were adjudged and the conclusions of law stated, to which exceptions were filed on part of the defendants. After hearing and argument on the exceptions so filed the original findings of fact and conclusions of law were modified, as set forth in the opinion filed March 22, 1909, in which opinion, also the interests of the parties, plaintiff and defendant, were found and stated and a decree in accordance therewith and setting forth said interests was duly made and filed October 2, 1909, in which decree, also, F. J. Forquer, Esq., was appointed master to divide and partition said real estate into purparts according to the shares and interests of the respective parties thereto if the same can be divided without prejudice to the interests of said parties respectively, or without prejudice to or spoiling the whole; and to value the same and to ascertain the amount which shall be paid or charged thereon for owelty, or which shall be paid or secured to the parties to whom no purpart may or can be alloted in the manner now authorized by law under writs of partition. And if the master shall find that such partition can be made either of the whole of said real estate or any part thereof, then upon such valuation and partition, to award and allot the said purparts to and among the parties severally • and respectively entitled thereto, together with the sums to be charged thereon and payable as and for owelty of partition. And if the. master shall find that the said real estate cannot be conveniently divided into as many purparts as there are parties entitled, he shall award and allot the amount or sum to be paid or secured to them respectively and the times when such payments shall be made and the purparts out of which the same shall be payable, and if he shall find that the real estate or tenements cannot be divided without prejudice to or spoiling the whole then he shall value or appraise the same.” The master so appointed having duly qualified and gone upon the premises and having there met the parties, filed his report in court March 15, 1911, finding that the land described in the bill cannot be divided into purparts to accommodate all in interest without injury to or spoiling the whole and that he had appraised and valued the land described in the bill at $90.00 per acre, aggregating the sum of $6,379.20. On the report thus made the court on March 15, 1911, decreed as follows: “Now, March 15, 1911, the foregoing report of the master in equity in this case was presented in open court and on due consideration, his report of inquest and valuation thereof is now approved and confirmed and unless exceptions be filed thereto within ten days, the master is authorized to issue a citation upon all the parties in interest to appear before him, as master, to the end that the matter may be proceeded with according to law.” To the decree thus made the pending exceptions were filed on part of some of the defendants on March 15, 1911.
    The matters raised in the exceptions filed have been for the most part passed upon and adjudicated in thcopinions heretofore filed. The exceptions do, however, raise, for the first time, the question that plaintiffs’ bill does not sufficiently aver the facts upon which a reconversion of the property is predicated. However this may be, the fact remains that the defendants did not raise this question as to the sufficiency of the averments of the bill in this respect until after the testimony was in, the facts found and decree made, and even if it were true that the averments in the bill were not sufficient, testimony was received of the facts upon which the plaintiffs sought to establish a reconversion, without any objection on part of defendants that the bill did not sufficiently aver the facts relied upon. We think it is now too late to raise the question, and that under the circumstances, if it were necessary to do so, the bill would even now be amendable so as to conform to the proofs in the case.
    The exceptions raising the question that there can be no parol sale among tenants in common we think are not relevant in the case in hand, as we do not recall any evidence of parol sales sought to be effected among the owners of the land. The rule by which a parol sale cannot be effected by tenants in common, inter se, does not prevent them from making such sales to outside parties, but even this is not a question, as we take it, in the case under consideration. Upon the argument of the case, it was contended on part of the exceptants’ counsel that the proceedings have not been in conformity with the equity rules in such cases. We are not convinced, however, that there has been any irregularity in the record in this respect. On consideration therefore of the whole case, the exceptions are dismissed.

      Error assigned was the decree of the court.

      John M. Greer, with him John B. Greer and Thos. H.

      Greer, for appellants.
    January 2, 1912:
    An election to take land directed to be sold, in lieu of the proceeds is practically a purchase: Mellon v. Reed, 123 Pa. 1.
    The reconversion must be by deed or some equivalent conveyance and Mary B. Wahl and Mrs. G. H. Harley being married, could not elect to take the land instead of the proceeds except by deed joined in by their husbands.
    Under the will the heirs take title not by the will but by their own act. Their election to take the land is an appropriation of their interests under the will to the acquisition of the land as upon a pinchase, and an equitable estate or title is thereby created in them which chancery will execute by compelling a conveyance. But until the act of election, the heirs have- no estate or title which would be the proper subject of a lien either by judgment or by mortgage, or which could be taken in execution: Mellon v. Reed, 123 Pa. 1; Bailey v. Allegheny Nat. Bank, 104 Pa. 425; Horner’s App., 56 Pa. 405.

      T. C. Campbell, with him James W. Hutchison, for appellees.
    The property directed to be sold by the will of C. A. McKinney upon the death of his wife was reconverted by the action of his children, among whom the proceeds of the sale were to be distributed: Brown’s App., 27 Pa. 62; Howell v. Mellon, 189 Pa. 169; Emanuel’s Est., 13 Pa. Superior Ct. 43; Rauch’s Est., 21 Pa. Superior Ct. 60; Beatty v. Byers, 18 Pa. 105; Willing v. Peters, 7 Pa. 287; Beal v. Stehley, 21 Pa. 376; Bailey v. Nat. Bank, 104 Pa. 425.
   Opinion by

Mr. Justice Mestrezat,

We have carefully examined and considered the somewhat voluminous and complicated record in this case, and are of the opinion that the learned trial judge properly disposed of the case in his opinion of March 22, 1909, and subsequent opinions. The decree may well be affirmed on his opinions.

The controlling question is whether the real estate of the decedent which, by his will, had been converted into personalty, had been reconverted by the persons beneficially interested. The facts found by the chancellor, fully warranted by the evidence, justified him in finding that there had been a reconversion and that the beneficiaries had elected to hold the real estate as such. While the intention to reconvert must clearly and unmistakably appear, yet a direct election is not necessary. Any act or acts which disclose plainly an intention to hold the real estate as such is sufficient. It would be difficult to find in any other case acts of the parties which show more plainly an intention to reconvert real estate directed by a testator to be sold. The heirs and legatees, the parties beneficially interested, took control of the real estate in December, 1888, the year following the death of the testator, and leased the premises for oil purposes. Subsequently they leased for oil and gas purposes, and issued pipe-line division orders for oil procured from the leases. In April, 1906, all the interested parties made a deed, granting a right of way to a railway company across the premises. In these several acts they necessarily treated the property as real estate, and thereby clearly disclosed an election to reconvert it to real estate. The learned judge committed no error in holding that such acts on the part of the beneficiaries, covering a period of eighteen years after the death of the testator, were an election to hold the property as land and not as personalty.

The judgments entered against some of the parties after the election to reconvert bound their interest in the real estate, and the sales on the judgments passed the title of those parties to the purchasers. The learned judge correctly held that the reconversion dated from April 7,1906, and that judgments entered thereafter against the parties became a lien on the property.

There is no merit in the contention that the court below was without jurisdiction to entertain the bill for partition until the title of the parties had been determined in an action of ejectment. The question was recently before this court, and it was there settled against the position of the present appellants: Cooley v. Houston, 229 Pa. 495. There, as here, the question of reconversion depended upon evidence in writing disclosing the intention of the parties, and it was held that, it being a question for the court, a chancellor in a suit in equity could determine it as well as a judge sitting in a court of law trying an action of ejectment.

The question raised by the appellants as to the sufficiency of the averments in the bill must be ruled against them. The objection now made was not raised until after the testimony had been given before the chancellor, and the facts found and a decree made by him. The parties treated the bill as if it contained all the necessary averments, and produced testimony to sustain and defeat the issue thus made. It is now too late for the appellants to complain of the insufficiency of the pleadings.

The decree is affirmed.


source: Caselaw Access Project

author: Me. Justice Moschziskee,'

license: Public Domain

text:
    McIntosh, Appellant, v. Ropp.

      Appeals — Specifications of error — Practice, C. P. — Act of April 22, 1874, P. L. 109.

    1. Assignments of error must be so complete in themselves that reference to other parts of the record is unnecessary.
    2. The scheme of the Act of April 22, 1874, P. L. 109, providing for the trial of common-law actions by the court without a jury, is in practical accord with established equity practice, and in cases tried thereunder all specifications of error on appeal must be to the final rulings of the court below. -Where exceptions have been taken to the findings and conclusions of the trial court, the assignments should in each instance show that fact and the ruling upon the exception.

      Tenants in common — Minerals—Lease to third parties — Action by co-tenant — Right to profits — Oil and gas — 'Measure of damages.

    3. At the common law, ordinarily an action could not be maintained by a tenant in common against a cotenant in sole possession to recover a share of the profits of the estate; but the Act of April 25¿ 1850, P. L. - 569, 573, sec. 24, recognizes such a right where minerals are held in common; and it is settled in this state that oil and gas contained in or obtainable through lands are minerals.
    4. Where the life tenant of a tract of land leases the right to mine oil and gas therefrom and the lease is ratified by one of the two holders of the title in remainder, an action by the nonratifying remainder-man against the lessees for her share of the profits of the mining operations carried on by the lessees must be regarded, since the lease was in legal effect a sale, as based upon a development of the land by a tenant in common and a claim of a cotenant for her share of the proceeds. In such case the fact that the actual operations were carried on by third parties under a lease, and not directly by the consenting remainder-man, will not serve to make the defendants trespassers, or to cause them to be regarded other than as cotenants.
    5. In such cases the measure of damages must depend largely upon the peculiar circumstances, but compensation is the usual rule where there are no facts showing intentional wrong; and as between tenants in common such compensation may be measured by the fair market value of the minerals in place, which may be figured on the basis of the royalty to be obtained for the privilege of removing such mineral, in view of all the circumstances.
    Argued Oct. 11, 1911.
    Appeals, Nos. 217, 218, 219 and 220, Oct. T., 1911, by plaintiffs, from judgments of C. P.
    Butler Co., June T., 1909, No. 6, Sept. T., 1909, No. 9, March Term, 1910, No. 57, March T., 1910, No. 82, in cases of Addie McIntosh v. Wm. H. Ropp; Addie McIntosh v. Daniel Dierkin; Addie McIntosh v. Daniel Dierkin, William H. Ropp and C. E. Blaney; and Addie McIntosh v. C. E. Blaney.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an account, action of trespass for oil taken from land, ejectment for twenty acres of land in Fairview township, and trespass for damages for mining operations. Trials by court without a jury under act of April 22, 1874. Before Galbreath, P. J.
    The facts appear in the opinion of the Supreme Court and in McIntosh v. Ropp,¡,222 Pa. 606.
    The court determined the equity and trespass cases against the plaintiff and in the action of ejectment decided. that plaintiff could only recover her one-half interest in the land subject to the right of the defendant to continue to operate under the lease. Plaintiff appealed.
    In McIntosh v. Ropp, the specifications of error were as follows:
    1. The court erred in finding that the taking of the lease by B. B. Seibert from Kenneth McIntosh was in good faith on part of Seibert, and in the honest belief that Kenneth McIntosh was the owner of the land.
    2. The court erred in finding that Dierkin and Whitener did not learn or have actual knowledge that Kenneth McIntosh was not the owner of the land until the year 1907, or have knowledge of any defect in the title and that the expenditures made by them were made on the faith of a good title.
    3. The court erred in finding as a conclusion of law, that equity has no jurisdiction of plaintiff’s cause of action as set forth in her bill.
    ^ 4. The court erred in finding as a conclusion of law that the plaintiff has an adequate remedy at law for the damage done to her inheritance.
    5. The court erred in finding as a conclusion of law that the plaintiff’s bill should be dismissed.
    6. The court erred in directing, unless therefore exceptions are filed within ten days from the filing hereof let a ’ decree be drawn in accordance.
    ■In McIntosh v. Dierkin the specifications of error were as follows:-
    The court erred in the following findings of facts:
    In finding that the royalty of one-eighth of the oil produced from the said wells was paid to Kenneth McIntosh with the knowledge of the plaintiff, as the court should have found as a fact that Addie McIntosh, the plaintiff, had no knowledge whatever, as to any claim on part of Dierkin or Whitener, and knew nothing whatever of the payment of royalty to her father, and there is no proof in the case to sustain it.

      In finding that the defendant did not learn, or have actual knowledge that Kenneth McIntosh was not the owner of the land until 1907, and that Whitener did not have such knowledge during the time that he owned an interest in the property, and that the several lessees, up until shortly before the bringing of the actions, were without knowledge of any defect in the title, and that the expenditure of the money was made in good faith.
    In not finding as a fact there is no proof in the case that Addie McIntosh had any knowledge of the indenture from her father to Seibert or Seibert’s claim to the land, or of the claim of Dierkin or Whitener to the land for any purpose, or knowledge of the conversation between Dierkin and her brother, Edward, at the time they allege they were looking at the property with the intention of buying it, or that her father was receiving a royalty.
    The court erred in its conclusions of law as follows:
    In concluding as a matter of law that the plaintiff’s damages are not to be measured by the price obtained from the oil when produced and sold, but by the lessened value of the inheritance, consequent of the taking of the oil. This being true, we might end the consideration of the case and in the absence of the proof of the lessened value of the inheritance, enter judgment for the defendant under the agreement above referred to.
    In concluding as a matter of law that there was no willful trespass committed by the defendant, no circumstances of aggravation attended the taking of the oil, but on the contrary the life tenant was receiving one-eighth royalty with the knowledge and acquiescence of the plaintiff who resided with him on the farm.
    In concluding as a matter of law that the measure of damages in this case, is not the particular value of the oil or other products produced by the defendant from the land and removed therefrom, as a merchantable commodity, that is, the market value of the production after it had been produced and severed from the land, less the proper cost and the expense of the production, but the damage done to the interest of the plaintiff in remainder, that is, to her inheritance, and it is not being contended, and there being no proof to show that the taking of the oil did in itself lessen the value of the inheritance, the plaintiff is not entitled to recover.
    In concluding as a matter of law that the defendant not being a willful trespasser, and his possessions and operations of the leasehold not .having been attended with any circumstances of aggravation, but on the contrary having been encouraged by one of the remainder-men to enter upon and operate and develop the property under the lease given by the life tenant, who received the royalty with a knowledge of a remainder-man then residing on the farm. The measure of the plaintiff’s damage is the value of the oil in place, which having been paid to the life tenant, who it is agreed was a proper person to receive the same, the plaintiff is not, therefore, entitled to a further recovery.
    In not concluding as a matter of law that the true measure of damages in this case is the value of the oil taken in the pipe lines, less the expense of putting it there, which expense would include labor and necessary improvements and repairs, to the fixtures and appliances used in doing this, with such additional sum as would compensate the plaintiff for the detention of the oil, or for the delay in not receiving the damages that she was entitled to receive,, this sum not to exceed legal interest from the various sums received by the defendant, for the oil which he wrongfully took and sold.
    The court erred in entering judgment for the defendant, and not entering judgment for the plaintiff one-half of $20,598.35 after deducting the necessary expense to which the defendant is entitled with interest.
    The court erred in overruling the defendant’s exceptions to the decision of the court, filed June 21, 1911, and directing judgment to be entered in favor of the defendant.
    In McIntosh v. Blaney the specifications of error were as follows:

      The court erred in the following findings of facts:
    In finding that the royalty of one-eighth of the oil produced from the said wells was paid to Kenneth McIntosh with the knowledge of the plaintiff, as the court should have found as a fact that Addie McIntosh, the plaintiff, had no knowledge whatever as to any claim on part of Dierkin or Whitener, and knew nothing whatever of the payment of royalty to her father, and that there is no proof in the case to sustain it.
    In finding that the defendant did not learn, or have actual knowledge that Kenneth McIntosh was not the owner of the land, until 1907, and that Whitener did not have such knowledge during the time that he owned an interest in the property, and that the several lessees, up until shortly before the bringing of the actions, were without knowledge of any defect in the title, and that the expenditure of the money was made in good faith.
    In not finding as a fact there is no proof in the case that Addie McIntosh had any knowledge of the indenture from her father to Seibert or Seibert’s claim to the land, or of the claim of Dierkin or Whitener to the land for any purpose, or knowledge of the conversation between Dierkin and her brother, Edward, at the time they allege they were looking at the property with the intention of buying it, or that her father was receiving a royalty. ‘'
    The court erred in its conclusions of law as follows:
    In concluding as a matter of law that the plaintiff’s damages are not to be measured by the price obtained from the oil when produced and sold, but by the lessened value of the inheritance, consequent on the taking of the oil..
    In concluding as a matter of law that there was no willful trespass committed by the defendant, no circumstances of aggravation attended the taking of the oil, but on the contrary the life tenant was receiving one-eighth royalty with the knowledge and acquiescence of the plaintiff who resided with him on the farm.
    In concluding as a matter of law that the measure of damages in this case, is not the particular value of the oil or other products produced by the defendant from the land and removed therefrom, as a merchantable commodity, that is, the market value of the production after it had been produced and severed from the land, less the proper cost and the expense of the production, but the damage done to the interest of the plaintiff in remainder, that is, to her inheritance, and it is not being contended, and there being no proof to show that the taking of the oil did in itself lessen the value of the inheritance, the plaintiff is not entitled to recover.
    In concluding as a matter of law that the defendant not being a willful trespasser, ánd his possessions and opera7 tions of the leasehold not having been attended with any circumstances of aggravation, but on the contrary having been encouraged by one of the remainder-men to enter upon and operate and develop the property under the lease given by the life tenant, who received the royalty with a knowledge of a remainder-man then residing on the farm. The measure of the plaintiff’s damage is the value of the oil in place, which having been paid to the life tenant, who it is agreed was a proper person to receive the same, the plaintiff is not, therefore, entitled to a further recovery.
    In not concluding as a matter of law that the true measure of damages in this case is the value of the oil taken in the pipe lines, less the expense of putting it there, which expense would include labor and necessary improvements and repairs to the fixtures and appliances used in doing this, with such additional sum as would compensate the plaintiff for the detention of the oil, or for the delay in not receiving the damages that she was entitled to receive, this sum not to exceed legal interest from the various sums received by the defendant, for the oil which he wrongfully took and sold.
    The court erred in entering judgment for the defendant, and not entering judgment for the plaintiff one-half of $1,888.70, after deducting the necessary expense to which the defendant is entitled with interest.
    The court erred in overruling the plaintiff’s exceptions to the decision of the court, filed June 21, 1911, and directing judgment to be entered in favor of the defendant.
    In McIntosh v. Dierkin et al., the specifications of error were as follows:
    The court erred in the following findings of facts:
    In finding that the defendants did not learn or have actual knowledge that Kenneth McIntosh was not the owner of the land until 1907, and that Whitener did not have such knowledge during the time that he owned an interest in the property, and that the several lessees up until shortly before the bringing of the actions, were without knowledge of any defect in the title, and that the expenditure of money was made in good faith.
    In not finding that there is no proof in the case that Addie McIntosh had any knowledge of the indenture from her father to Seibert, or of Seibert’s claim to the land, or of the claim of Dierkin, Whitener or Ropp to the land for any purpose or knowledge, of the conversation between Dierkin and Whitener and her brother, Edward, at the time they allege they were looking at the property with the intention of buying it, or that her father was receiving a royalty.
    The court erred in its conclusions of law as follows:
    In concluding as a matter of law that Whitener and Dierkin, before taking the lease and expending their money thereon had no knowledge or notice of title in the plaintiff.
    In concluding as a matter of law that under the circumstances the estoppel of Edward McIntosh was as ample in scope and relation as the provisions of the contract which is thus ratified, and as wide as the evident understanding of the parties when the lease was given and produced itself beyond the lifetime of the lessor.
    In concluding as a matter of law that the plaintiff had received compensation on the basis by delivery to her of her proportionate share of the royalty produced.
    In concluding as a matter of law it is agreed that her proportionate share of the royalty is a proper measure of the value of the oil in place.

      In concluding as a matter of law that this estoppel worked a conveyance of the one-half of the working interest of the oil and gas right in the land to C. E. Blaney, the defendant, on the death of the life tenant.
    In concluding as a matter of law that on the death of the life tenant, the plaintiff and defendant became tenants in common of the oil and gas right in the land in dispute. The interest of the defendant therein being measured by his right under the lease of Seibert, as ratified by Edward E. McIntosh and being the undivided one-half of the working interest therein.
    In concluding as a matter of law that the measure of the mesne profits is the value of the oil produced in place, which in turn is measured by the royalty interest, which the plaintiff has already received. That the plaintiff is entitled to judgment of one-half interest in and to the oil and gas right in the land in dispute, but without prejudice to her cotenant, the defendant’s equal right to possession, for the purpose of necessary operations in producing and removing his share of the oil and gas as the same can be produced in paying quantities, together with the right to remove any machinery, fixtures and buildings on said premises by him or those claiming under him, as provided in the lease to Seibert when operations are ended, and subject to an account to the plaintiff for the value of one-half of the oil in place, to-wit, one-half of the royalty.
    In not concluding as a matter of law that the true measure of damages in this case is the value of the oil taken in the pipe lines, less the expense of putting it there, which would include labor and necessary improvements and repairs to'the fixtures and appliances used in doing this, with such additional sum as would compensate the plaintiff for the detention of the oil or for the delay in not receiving the damages that she was entitled to receive, which sum not to exceed legal interest on the various sums received by the defendant for the oil which he wrongfully took and sold.
    That the court erred in not entering judgment in favor of the plaintiff for the amount of oil taken from the said well .from the date of the death of Kenneth McIntosh, less the necessary expense to which the defendant is entitled.
    The court erred in finding as a conclusion of law that ■the plaintiff is entitled to judgment for one-half interest of, in and to the oil and gas right in the land in dispute but without prejudice to her cotenant the defendant’s equal right of possession for the purposes of necessary operations in producing and removing his share of the oil and gas so long as the same can be produced in paying quantities, together with the right to remove any machinery, fixtures and buildings placed on said premises by him or those claiming under him as provided in the lease to Seibert when operations are ended, and subject to an accounting to the plaintiff for the value of one-half of the oil in place, to-wit, a one-half of the royalty.
    The court erred in not finding as a conclusion of law that the plaintiff is entitled to judgment for the whole interest in and to the oil and gas right in the land in dispute, and that the defendant’s rights therein, if any he had, expired at the time of the death of Kenneth McIntosh, the life tenant, and in not entering judgment for the value of the whole amount of the oil produced since the death of Kenneth McIntosh.

      John M. Greer, with him John B. Greer and Thomas H. Greer, for appellant.
    The quantity and value of the oil produced and sold, less expense of production, is the correct rule to measure the damages: Crawford v. Forest Oil Co., 208 Pa. 5.

      T. C. Campbell, with him P. W. Lowry, W. Z. Murrin and F. J. Forquer, for appellees.
    The correct measure of damages is the fair market value of the mineral in place, represented by the royalty to be obtained for the privilege of removal: Fulmer’s App., 128 Pa. 24; Mercur v. It. R. Co., 171 Pa. 12; McGowan v. Bailey, 179 Pa. 470.

      January 2, 1912:
   Opinion bt

Me. Justice Moschziskee,'

These four appeals are in cases arising out of the same state of facts. The causes were tried together in the court below and argued as one in this court, on the understanding that they should be here disposed of in like manner.

Addie McIntosh, the plaintiff and appellant, is the owner of an undivided one-half interest in a farm of 128 acres in Butler county, the other undivided half belonging to her brother, Edward E. McIntosh. This farm was originally owned by their mother, Rose McIntosh, who died intestate May 15, 1888, leaving to survive her a husband, Kenneth McIntosh, the above-named two children, and a daughter Lizzie. At the time of the mother’s death and during the period of the other facts here involved, the father lived on the farm with Edward and Addie, but the daughter Lizzie resided in New York state. Prior to the acquisition of this property by Rose McIntosh the land had been developed for oil and.gas, but the operation had been abandoned at the time of her death.

On July 22, 1895, Kenneth McIntosh executed a lease to B. B. Seibert for twenty acres of said farm at a one-eighth royalty; it was in the usual form, and was to run for fifteen years and as long thereafter as oil and gas should be produced in paying quantities. ' None of the children joined in the execution of this lease, but they were all of full age at that time. The lessee went upon the land and drilled two unproductive wells, and in November, 1896, when about to abandon the property, he assigned all his interests to Daniel Dierkin and Valentine Whitener for a consideration of $1,200. They,‘ ‘ as the result of the expenditure of a considerable sum of money” managed to make the wells “fair producers.” On March 19, 1898, Whitener sold his interest to Dierkin for $3,000, and the latter retained possession until July, 1907, at which time he assigned the lease to W. H. Ropp for $4,000. Ropp continued to operate the two wells until April 5, 1909, when he sold to C. E. Blaney for $4,000; and the latter still holds possession.

April 7, 1900, Lizzie McIntosh sold and conveyed her undivided one-third interest in the farm to her brother and sister. January 8, 1910, Kenneth McIntosh died. January 13, 1910, Edward E. McIntosh conveyed to his sister Addie all his interest in the oil rights, “in and to the twenty acres of land comprising said leasehold,” together with all oil produced in the past from the two wells, retaining the right to one-half of the royalty fixed by the lease. On the same day they executed a division order to the company through whose lines the oil was run, and thereafter the royalty was paid to them in equal proportions. Before that date the royalty had been paid to Kenneth McIntosh, with the knowledge of his two children, many of the payments having been made directly to Edward.

In 1907 Edward and Addie brought a joint action in trespass against Dierkin, and another against Ropp, to recover damages for the taking of oil under the lease; but on appeal it was held that Edward was estopped by his knowledge and conduct (as detailed in the report) from again enforcing “payment for the oil thus run,” this court stating, “as to the sister Addie .... we are of opinion that the facts established at the trial are not sufficient to constitute an estoppel as to her. However, the present action cannot prevail, because it being joint, and there being sufficient facts established to estop Edward, the right to a joint recovery being thus defeated, this action must fall.” Addie then instituted the following actions: April 20, 1909, proceeding in equity against Ropp praying for an accounting for her share of the oil, exclusive of the royalty, from July, 1907, to April, 1909; June 10, 1909, action of trespass against Dierkin to recover damages because of his operations from March 18, 1898, to July 1, 1907; January 13, 1910, action of ejectment against Blaney to recover the land and mesne profits; February 14,1910, action of trespass against Blaney to recover damages because of his operations from April 5,1909, to January 8, 1910; and these are the cases before us on appeal.

The plaintiff averred that the various defendants went upon the land and carried on their operations “without authority from or consent of the plaintiff,” and that they had wrongfully retained from her the oil and gas produced therefrom; that “at the time of the unauthorized, unlawful and wrongful entry of the defendant .... the plaintiff was the owner .... subject to the life-estate of her father, .... and had a property in the one-half of the oil, gas and other by-products .... taken out,‘removed, or appropriated, .... by the defendant, which, exclusive of royalty, belonged absolutely and immediately to her as personal property, and for one-half of which the defendant is answerable to the plaintiff in damages.” She claimed that the measure of her damages was the market value of the oil after it had been severed from the land less the expense of production and the royalty paid by the defendant, while the defendant contended that the only proper measure was the value of the oil in place as represented by the royalty already paid.

At the trial the parties, inter alia, agreed: “That the lease was made by Kenneth McIntosh, who was a tenant for life with remainder in Addie McIntosh, the plaintiff, and her brother, Edward McIntosh;” that “Edward McIntosh, the owner of the one-half of the title in remainder, ratified the lease made by the life-tenant and the lessee' was in possession under him as well as under the life tenant;” that “If the plaintiff is not entitled under the circumstances and the law of the case to recover the one-half of the seven-eighths of the market value of the production during the life of the life-tenant after .it has been produced and severed from the land, less the proper cost and expense of its production, then judgment to be entered for the defendant;” that “If the court should be of opinion that the damages are not to be measured by the value of the oil and other products, after being severed, less cost and expense of production, but by the value of the royalty proper to be paid or delivered, then judgment to be entered for the defendant, as no proof will be offered as to the proper amount of royalty to be delivered and a royalty under the lease having been delivered to Kenneth McIntosh, which royalty is to be treated as having properly been delivered;” that “If damages are found in favor of the plaintiff, based upon the amount of production, it is to be based upon the one-half of the seven-eighths of the whole production, a royalty of one-eighth having already been paid to the life-tenant;” that “Upon the trial the plaintiff will not contend that the taking of the oil during the time the defendant was in possession, did in itself lessen the value of the inheritance, but that the damages are' to be measured only by the value of the oil produced, less the cost and expense of producing it, and will make no claim for damages in any other way, nor for injury done to the surface of the land;” further, “While this agreement admits that the plaintiff’s title to the land is as set forth above, it is not to be taken as an admission that the defendant or lessee under whom the defendant claims had actual knowledge of her title.” It was agreed in the ejectment suit, that the question whether the ratification of the lease by Edward “ended with the death of the life-tenant or still continued is to be decided by the court;” that in case of recovery of mesne profits according to the measure of damages contended for by the plaintiff the one-eighth of the whole value of the oil should be deducted, “the plaintiff having received one-eighth clear of expense as for royalty;” that in event of the court deciding that the value of the royalty proper to be paid was the correct measure of damages, the royalty already paid to the plaintiff “shall be taken to be a fair royalty in full of all claims for mesne profits;” and that “if the plaintiff’s measure of damages should not be adopted by the court, then the plaintiff shall make no claim for mesne profits.” Counsel for the appellant in his printed argument states, “The only qdestion involved is the measure of damages for one-half of the oil produced from her (the plaintiff’s) working interest in the wells.”

The court below refused to adopt the measure of damage contended for by the plaintiff and determined the equity and trespass cases against her. In the action of ejectment the court decided that the plaintiff could only recover her one-half interest in the land subject to the right of the defendant to continue to operate under the lease on paying her a one-eighth royalty, and entered judgment accordingly.

The plaintiff has filed many assignments of error, but none of them is in proper form. The Act of April 22,1874, P. L. 109, under which the common-law actions were tried, provides: “If exceptions to the findings of facts or conclusions of law be filed .... the court .... may .... order judgment to be entered according to the decision previously filed, or make such modification thereof as in justice or right shall seem proper, subject .... to review by ... . the Supreme Court. . . . Every such case taken to the Supreme Court .... shall be heard and determined therein as cases of appeal in equity proceedings. . . .” The scheme of this act is in practical accord with established equity practice, and in cases tried thereunder all specifications of error must be to the final rulings of the court below. Where, as in the present case, exceptions have been taken to the findings and conclusions of the trial court, the assignments should in each instance show that fact and the ruling upon the exception. We have expressly so decided in equity cases: New Cumberland Borough v. Riverton Cons. Water Co., 232 Pa. 531; Chisholm v. Thompson, 233 Pa. 181; Berg v. Bank, ante, p. 469. Furthermore, we have laid it down generally that assignments of error must be so complete in themselves that reference to other parts of the record is unnecessary: Landis v. Evans, 113 Pa. 332. In this busy age of overburdened courts, labor-saving rules of practice are essential to expeditious judicial work, and their observance must be insisted upon. The present assignments are defective in failing to show that the matters therein attempted to be called to our attention represent the final rulings of the court below, and for that reason they are dismissed. However, we have looked into all the points sought to be raised, and we shall now refer to those whose consideration seems essential to a proper disposition of these appeals.

While the lease made by Kenneth McIntosh, the life tenant, was not executed by his son, Edward, it was participated in by him to such an extent that he should be viewed as a party to it. In McIntosh v. Ropp, 222 Pa. 606, we ruled that the actions of Edward, prior and subsequent to the taking of the lease, were sufficient in law to constitute an estoppel against him. The practical effect of this estoppel, so far as these defendants are concerned, was to put Edward McIntosh in the position of a party to the lease; and when his father died and he became entitled to the full enjoyment of his estate, that circumstance merely served to feed the estoppel and strengthen the right to treat the lease as though executed by him. In addition, we have the express agreement upon the record that “Edward McIntosh, the owner of the undivided one-half of the title in remainder, ratified the lease made by the life-tenant and the lessee was in possession under him as well as under the life-tenant.”

Since the lease was in legal effect a sale (Marshall v. Mellon, 179 Pa. 371, 375; Stoughton’s Appeal, 88 Pa. 198; Blakley v. Marshall, 174 Pa. 425, 429), the case must be looked upon as a development of the land by a tenant in common and a claim by a cotenant for her share of the proceeds. The fact that the actual operations were carried on by third parties under a lease, and not directly by Edward McIntosh, would not serve to make the defendants trespassers, or to cause them to be regarded other than as cotenants: McGowan v. Bailey, 179 Pa. 470, 479. The defendants acted in good faith, with the honest belief that Kenneth McIntosh was the owner and that they were operating under a valid grant; and while we have heretofore held that the plaintiff was not estopped from claiming the value of her share of the oil, we at no time considered or determined what her proper share was, much less that she was in a position to ask that the lease be set aside as a nullity. In every case of this character the measure of damage must depend largely upon the peculiar circumstances, but compensation is the usual rule where there are no facts showing intentional wrong; and as between tenants in common such compensation may be measured by the fair market value of the mineral in place, which may be figured on the basis of the royalty to be obtained for the privilege of removing such mineral, in view of all the circumstances: Forsyth v. Wells, 41 Pa. 291; Lehigh Coal Co. v. Wilkes-Barre & Eastern R. R. Co., 187 Pa. 145, 150; McGowan v. Bailey, 179 Pa. 470; Fulmer’s Appeal, 128 Pa. 24, 39; Mercur v. Railroad Co., 171 Pa. 12.

At the common law, ordinarily an action could not be maintained by a tenant in common against a cotenant in sole possession to recover a share of the profits of the estate: Coleman’s Appeal, 62 Pa. 252, 276; Pico v. Columbet, 12 Cal. 414; but our Act of April 25,1850, P. L. 569, 573, sec. 24, recognizes such a right where minerals are held in common; and it is settled in this state that oil and gas contained in or obtainable through the land are minerals: Stoughton’s Appeal, 88 Pa. 198; Westmoreland N. Gas Co. v. Dewitt, 130 Pa. 235; Gill v. Weston, 110 Pa. 312; Marshall v. Mellon, 179 Pa. 370. In Fulmer’s Appeal, supra, we said as to a tenant in common, “His ownership is such that he cannot take his own share, without also at the same time and by the same act taking the share of the cotenant. But in mining operations there is always more or less expense and risk which must necéssarily be incurred by the person who conducts them. The tenant out of possession incurs none of the risk or expense, when the mining operations are conducted exclusively by the tenant who is in possession. Nevertheless, he is entitled to be compensated for the appropriation by his cotenant in possession for his proportion of the mineral taken by the latter. . . . Where the mineral land has never been developed .... the fair market value of the mineral in place, which would be the value of the privilege of removing it, in view of its special circumstances, would represent the true measure of compensation to the owner. So, too, if the land were fully developed .... and all the expenses incurred which would enable the operator to proceed at once to the taking of the mineral, the value of the mineral in place, ready to be taken, would be enhanced by these considerations, and the price of the privilege of taking it in such circumstances would also represent the measure of the compensation.” The case just cited distinguishes several of the authorities relied upon by the appellant to support her contention as to the proper measure of damage, and we feel that, on reason, the rule there laid down should be adopted in the present case; for, owing to the fugacious nature of oil and gas, and their liability to be diverted by operations upon adjoining and near-by lands, it is peculiarly necessary that cotenants should not be unduly restricted in the enjoyment of such properties.

The case of Williamson v. Jones, 43 W. Va. 562, cited to us by the appellant, largely rests upon statutory provisions. Crawford v. Forest Oil Co., 208 Pa. 5, is readily distinguishable; there the lessee knew that the lessor had but a life estate and “that the plaintiffs did not recognize the lease . .'. . as binding on them after his death;” the defendant purchased with like knowledge, after the death of the life tenant, and entered the land knowing that it was about to deprive the plaintiffs of their rights. There was no evidence as to a proper royalty to be paid; the rule prevailing between tenants in common had no application, and the measure of damage was adopted which best applied to the special facts in that case.

It would serve no good purpose to take up the question of the correctness of the remedies in the various actions instituted by the plaintiffs, and the assignments of error do not require us so to do. While we cannot agree entirely with the line of reasoning pursued by the court below, or with some of its conclusions, we are satisfied that the ultimate result reached in each case was in substance such as the facts involved called for under the law.

All of the appeals are dismissed at the cost of the appellant.


author: Per Curiam,

text:
    Douglass-Whisler Brick Company v. Simpson, Appellant.

      Corporations — Officers—Secret profits.

    1. An officer of a corporation occupies such a fiduciary relation to it that he cannot retain secret profits received in the management of its affairs.
    2. Where the president and secretary of a brick corporation are authorized to sell its plant in order that it may locate elsewhere, and the president, in the name of another person, procures an option on the clay and coal in place on a tract of land for $4,000, and sells it to the corporation for $9,400, and during the transaction does not disclose the fact of his ownership to any of the directors or stockholders, but by his conduct leads them to believe that he is acting for the corporation and purchasing the property from a stranger, he will be compelled to account to the corporation for the profits secretly made.
    Argued Oct. 11, 1911.
    Appeal, No. 29, Oct. T., 1911, by defendant, from decree of C. P. Beaver Co., June T., 1908, No. 3, in case of The Douglass-Whisler Brick Company v. William C. Simpson.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity for an accounting. Before Holt, P. J.
    The opinion of the Supreme Court states the case. The court decreed, inter alia:
    That the defendant, William C. Simpson, be and is hereby required to forthwith pay to the plaintiff the sum of $5,400 with interest thereon from April 21, 1902, at the rate of six per centum per annum.

      January 2, 1912:

      Errors assigned among others were to various findings of fact and the decree of the court.

      J, F. Reed, with him W. B. Cuthbertson, for appellant.

      Forest G. Moorhead, with him Edwin 8. Weyand, for appellee.
   Per Curiam,

The bill in this case was for an account for profits secretly made by the defendant while an officer of the corporation, plaintiff, in the sale of property to it. The substance of the findings of fact by the court is that the defendant was president, treasurer and a director of a corporation which desired to procure a new location for its business, and he and the secretary were authorized to sell its plant in order that it might locate elsewhere; that the defendant procured, in the name of another person, an option on the clay and coal in place on a tract of land for $4,000, and without disclosing his interest, sold it to the corporation for $9,400, and appropriated the difference to his own use; that during the transaction he did not disclose the fact- of his ownership to any of the directors or stockholders, but by his conduct led them to believe that he was acting for the corporation and purchasing the property from a stranger.

We find no reason to doubt the correctness of the findings of fact and from them the conclusions of law requiring the defendant to account and pay over the profits followed. An officer of a corporation occupies such a fiduciary relation to it that he cannot retain secret profits received in the management of its affairs: Bird Coal & Iron Co. v. Humes, 157 Pa. 278; Commonwealth Title Ins. & Trust Co. v. Seltzer, 227 Pa. 410.

The decree is affirmed at the cost of the appellant.


author: Mr. Justice Brown,

text:
    Douglass-Whisler Brick Company, Appellant, v. Simpson.

      Equity — Compliance with decree — Attachments—Summary arrest.

    1. The general rule is well settled that a writ of attachment for the summary arrest and imprisonment of a party in a civil proceeding for contempt in violating an order or decree cannot issue without such previous notice as will afford him an opportunity of being heard. Damnatus inauditus is contrary to the general principles of judicial procedure. Cases of extraordinary emergency may, however, sometimes arise, and when they do, a strict observance of the rule as to notice might defeat the ends of justice and lead to deplorable consequences. Such emergencies are very fare, but when they do occur, and satisfactory cause is shown, a court may, in the exercise of a sound discretion, dispense with notice and forthwith -award an attachment.
    2. A writ of attachment issued against a defendant for the purpose of compelling him to comply with a decree in equity, without previous personal notice to the defendant of the decree against him, and without a rule to show cause why it should not issue, but solely upon petition , of the plaintiff setting forth, inter alia, that, prior to the entry of the final decree against the defendant, he had absconded from the state; that he had absented himself from the state for the purpose of avoiding compliance with the decree; that he had recently come within the jurisdiction of the court, but was in hiding, and that his intention was td again leave the commonwealth for the purpose of avoiding compliance with the decree, is properly quashed upon motion made to vacate the order directing the attachment to issue where, upon full hearing, the plaintiff, though given the fullest opportunity, fails to establish any of the facts alleged in the petition as the basis of the right to the attachment.
    Argued Oct. 12, 1911.
    Appeal, No. 169, Oct. T., 1911, by plaintiff; from order of C. P. Beaver Co., June T., 1908, No. 3, in case of The Douglass-Whisler Brick Company v. Wm. C. Simpson.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Petition for attachment of defendant for contempt. Before Holt, P. J.

      January 2, 1912:
    The opinion of the Supreme Court states the case.
    The court issued the attachment which it subsequently quashed. Plaintiff appealed.

      Error assigned was in overruling exception to order quashing the attachment.

      Forest G. Moorhead, with him Edwin S. Weyand, for appellant.
    Where the defendant, by his absence, has prevented the service of the decree, then the court should not require the plaintiff to give notice before awarding the attachment: Fennel v. Goodman, 1 W. N. C. 469; New Brighton & New Castle R. R. Co. v. R. R. Co., 105 Pa. 13; Garis’s App., 185 Pa. 497; Church’s App., 103 Pa. 263; Wilson v. Wilson, 142 Pa. 247; Com. ex rel. v. Perkins, 124 Pa. 36; Respublica v. Oswald, 1 Dallas, 319; Ex parte Blumer, 86 Pa. 371; Wilvert’s Est., 4 Pa. Dist. Rep. 514; Respublica v. Newell, 3 Yeates, 407; Bullock v. Mc-Donough, 2 Pearson, 195; Thomas v. Cummins, 1 Yeates, 1; Ex parte Langdon, 25 Yt. 680; Ex parte Petrie, 38 111. 498; O’Callaghan v. O’Callaghan, 69 111. 552; Pitt v. Davison, 37 N. Y. 235; Thornton v. Davis, 23 Fed. Cas. 1147, Case No. 13,998; State v. Hansford, 43 W. Va. 773 (28 S. E. Repr. 791).

      J. F. Reed, with him William B. Cuthbertson, for appellee.
    In order to punish a person for contempt of court for violation of an order, judgment or decree of court, it must appear that such order, judgment or decree has been personally served on the person charged with contempt: Garis’s App., 185 Pa. 497; Sillivan v. Whitmer, 173 Pa. 401.
   Opinion by

Mr. Justice Brown,

A writ of attachment was issued by the court below against the appellee for the purpose of compelling him to coixiply with the decree which we have this day affirmed: Douglass-Whisler Brick Company v. Simpson, ante, p. 515. It was issued upon the petition of the appellant, without previous personal notice to the appellee of the decree against him and without a rule to show cause why it should not issue. The general rule is well settled that a writ of attachment for the summary arrest and imprisonment of a party in a civil proceeding for contempt in violating an order or decree cannot issue without such previous notice as will afford him an opportunity of being heard. Damnatus inauditus is contrary to the general principles of judicial procedure. Cases of extraordinary emergency may, however, sometimes arise, and, when they do, a strict observance of the rule as to notice might defeat the ends of justice and lead to deplorable consequences. Such emergencies are very rare, but when they do occur, and satisfactory cause is shown, a court may, in the exercise of a sound discretion, dispense with notice and forthwith award an attachment: New Brighton & New Castle R. R. Co. v. Pittsburg, etc., R. R. Co., 105 Pa. 13. To bring itself within the exception to the general rule that required a previous personal notice to the appellee of the decree and a rule to show cause why an attachment should not issue against him for contempt, the appellant presented its petition to the court below setting forth, inter alia, that, prior to the entry of the final decree against him, he had absconded from the state; that he had absented himself from the state for the purpose of avoiding compliance with the decree; that he had recently come within the jurisdiction of the court, but was in hiding, and his intention was to again leave the commonwealth for the purpose of avoiding compliance with the said decree. There was no other averment in the petition that would have warranted the summary attachment upon which he was taken into custody by the sheriff. An answer was filed to the petition and a motion made to vacate the order directing the attachment to issue. Upon full hearing, the court below, having been convinced that the writ had been improvidently issued, quashed it, and of this the. appellant complains.

But for the averments in the petition for the attachment, to which reference has been made, the learned court below would not have directed the writ to issue, and this properly appears in the opinion quashing it. The answer of the appellee specifically denied each of these averments, and, on the hearing of the motion to quash the attachment, there rested upon the appellant the burden to clearly establish the facts alleged in its petition as the basis of its right to the attachment under a departure from the general rule as to notice. Though given the fullest opportunity to do so, it failed to establish one of them. It examined five witnesses, the last being the appellee, called as under cross-examination, and, according to his uncontradicted testimony, each of the material averments in the petition was untrue. Instead of having absconded to avoid compliance with the decree entered against him May 13, 1910, he was compelled to go to Florida in the preceding March on account of ill health. He returned to Beaver county in April and remained there until the latter part of that month, waiting for the final decree, but on the last day of the month was compelled to leave again on account of continued ill health, and went to California. In October following he returned to his home in New Brighton for the purpose of looking after his property interests and taking an appeal from the decree against him, which the records show he took on November 3, 1910 — the day the writ of attachment was issued. Instead of being in hiding he was upon the streets of New Brighton, Beaver Falls and Pittsburgh, and his return was announced by the public press. That he was not in hiding conclusively appears from his testimony— not contradicted by the sheriff — that when that officer rang the door bell, with the attachment in his hands, he himself answered the ring and opened the door. The learned chancellor, under the facts as developed on the hearing, promptly and properly quashed the writ of attachment, for it clearly appeared to him that there had not existed, as set forth in the appellant’s petition, such pressing necessity as warranted a departure from the general rule as to notice before issuing an attachment. He saw and heard the appellee and apparently believed his uncontradicted testimony. But, aside from this, in the face of the answer to the petition for the attachment, denying all of its material averments, the burden was cast upon the appellant to establish them and, as it utterly failed to sustain them, its petition fell. Whatever its suspicions may be, a court of equity cannot recognize them as a ground calling for á summary writ for the arrest of the appellee.

Appeal dismissed at appellant’s costs.


text:
    Lockwood, Appellant, v. Ambridge Borough.

      Practice — Equity—Preliminary injunctions — Appeals.
    1. On an appeal from a decree dissolving a preliminary injunction the established practice is to determine only whether on the facts developed an injunction should have been granted or refused and to withhold any expression of opinion on the merits until after final hearing and decree.
    2. A preliminary injunction to restrain a borough from issuing bonds to build a water plant will be dissolved, where it appears that the borough had a right by law to build a water plant, and the only objection alleged by the plaintiffs was the fact that a part of the territory within the limits of the borough was included in a plan of lots by which the owners had reserved to themselves the right to construct water pipes in the highways in the plan for a supply of water.
    Argued Oct. 12, 1911.
    Appeal, No. 191, Oct. T., 1911, by plaintiffs, from decree of C. P. Beaver Co., Sept. T., 1911, No. 4, in case of C. A. Lockwood, G. S. Niver and C. L. McHenry v. Ambridge Borough et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to restrain a borough from issuing bonds to construct a waterworks. Before Holt, P. J.

      January 2, 1912:
    At the hearing it appeared that the borough had a right to build a water plant, but the plaintiffs objected that a part of the territory within which the pipes were to be laid, was covered by a plan of lots by which the owners had reserved to themselves the right to lay water pipes in the streets in the plan for a supply of water.
    The court issued a preliminary injunction which it subsequently dissolved on motion.

      Errors assigned were various conclusions of law and in entering order dissolving the preliminary injunction.

      Frank E. Reader, of Hice, Morrison, Reader & May, with him Lyon & Hunter, for appellants.

      J. Sharp Wilson, for appellees, was not heard.
   Per Curiam,

This is an appeal from a decree dissolving a preliminary injunction restraining a borough from issuing bonds for the construction of waterworks. The established practice in such appeals is to determine only whether on the facts developed an injunction should have been granted or refused and to withhold any expression of opinion on the merits until after final hearing and decree.

The decree is affirmed at the cost of the appellant.


author: Me. Justice Elkin,

text:
    Amiano, Appellant, v. Jones & Laughlin Steel Company.

      Negligence — Master and servant — Order to do particular work — Vice principal — “Boss.”
    1. In an action by a workman against Ms employer to recover damages for personal injuries received. wMle cleaning a- drill press where the negligence charged, namely, failure to properly guard belting, shafting, set screws and other machinery as required by the act of 1905 is conceded, or at least, under the facts, a question for the jury, the plaintiff is not required to prove that he was employed by a vice principal or that he was assigned to clean the drill press by a vice principal and it is sufficient for him to show that he was regularly employed to do work in and about the mill and that he was engaged at work assigned to Mm by a person in authority over Mm, not.necessarily a vice principal, at the time he sustained the injuries about wMch complaint is made.

      Negligence — Master and servant — Breach of statutory duty — Assumption of risk.

    2. In an action by a workman against his employer to recover damages for personal injuries, where the negligence charged is failure to perform a statutory duty, questions relating to assumption of risk do not arise.
    Argued Oct. 12, 1911.
    Appeal, No. 211, Oct. T., 1911, by plaintiff, from judgment of C. P. Beaver Co., June T., 1909, No. 333, on verdict for defendant in case of Tony Amiano v. Jones & Laughlin Steel. Company.
    Before Pell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.,
    Reversed.
    Trespass to recover damages for personal injuries. Before Holt, P. J.
    Tony Amiano, the plaintiff, was employed by the defendant company at its works in Pittsburg. He was employed as a laborer and to do odd jobs about the mill. In the afternoon of December 12, 1907, he was engaged in cleaning a drill press with waste and oil. The drill press was one of a series or row of presses, immediately behind which ran a line of shafting. While engaged in cleaning the press the plaintiff had his trousers caught by the shafting, he himself receiving the injuries on which the suit was based.
    January 2, 1912:
    The court directed a verdict for the defendant and judgment was entered thereon.

      Error assigned was in directing a verdict for the defendant.

      George C. Bradshaw, with him John A. Elliott, for appellant.
    The Act of May 2, 1905, P. L. 352, has been construed by the Supreme Court of this state to mean that, if the act is disobeyed by the person responsible for the operation of the shop in which the machinery is situated, that person will be liable for any injury the proximate cause of which is the failure to guard said machinery: Jones v. American Caramel Co., 225 Pa. 644; Valjago v. Carnegie Steel Co., 226 Pa. 514.
    The question of plaintiff’s contributory negligence was for the jury: Jones v. Caramel Co., 225 Pa. 644; Valjago v. Carnegie Steel Co., 226 Pa. 514; Solt v. Radiator Co., 231 Pa. 585.

      J. F. Reed, for appellee,
    cited: Sturtz v. R. R. Co., 225 Pa. 249; Vant v. Roelofs, 217 Pa. 535; Jones v. American Caramel Co., 225 Pa. 644.
   Opinion by

Me. Justice Elkin,

At the trial the learned court below gave binding instructions for the defendant upon the ground that there was no evidence to show that the person who directed the plaintiff to clean the drill press had the authority to assign that duty to him. In other words, that the burden was upon the plaintiff to establish by the preponderance of the evidence that the foreman, or boss, or other person who directed him to clean the machine at the time of the accident, was a vice principal. This is clearly an erroneous view of the situation. No question relating to the duties or authority of a vice principal was involved in this case. The evidence is ample to show that appellant was employed as a laborer in and around the mill and was engaged in the performance of duties assigned to him when the injuries were sustained. The testimony also shows that a foreman, called by appellant “the boss,” directed him to clean the drill press. It is also in evidence that he had been employed as a common laborer in and around the mill for several months prior to the time of the accident. Under the facts thus established there can be no question as to the existence of the relation of employer and employee. In order to entitle appellant to recover under the facts of the present case, it is not necessary to show that he was employed by a vice principal, or that he was assigned to clean the drill press by a vice principal. It is sufficient to show that he was regularly employed to do work in and about the mill and that he was engaged at work assigned to him by a person in authority over him, not necessarily a vice principal, at the time he sustained the injuries about which complaint is made.

The negligence charged was failure to properly guard the belting, shafting, set screws, and other machinery as required by the act of 1905. That the appellee company had failed in the performance of this statutory duty seems to be conceded, at least the question of negligence was for the jury.

In the opinion overruling the motion for a new trial the learned court below puts the case upon another ground by holding the appellant to have been guilty of contributory negligence as a matter of law. This question was not raised at the trial by either party and was only adverted to in the opinion overruling the motion for a new trial. We do no't agree that as shown by the facts appellant was so clearly guilty of contributory negligence as to warrant the court in so declaring as a matter of law. It was for the jury to say, taking into consideration all the facts and circumstances, whether appellant had exercised due care. The negligence charged being failure to perform a statutory duty, questions relating to assumption of risk do not arise: Jones v. American Caramel Co., 225 Pa. 644; Valjago v. Carnegie Steel Co., 226 Pa. 514.

Having concluded that a new trial should be granted in this case we deem it unnecessary to elaborate the discussion of the points involved in this controversy. What we do decide is that so far as disclosed by the present record the negligence of the appellee company and the contributory negligence of appellant, were questions for the jury.

Judgment reversed and a venire facias de novo awarded.