author: Mr. Justice Elkin,

text:
    Commonwealth, to use, v. Lenhart et al., Appellants.

      Bond — Bail bond — Appeal — Supersedeas — Condition—‘ ‘ Prosecute with effect” — Breach of condition.

    1. A stipulation in a bail bond to prosecute an appeal with effect means to prosecute with success, and when the bond stipulates distinct and independent conditions, the breach of any one condition works a forfeiture.
    ■ 2. In an action against the sureties upon a bail bond filed under the ■direction of the appellate court for the purpose of making an appeal a supersedeas, and “conditioned that he will prosecute his appeal with effect and will abide by and comply with all orders and the judgment of the Superior Court in the cause” it appeared that the judgment of sentence from which the appeal was taken required the defendant “to pay the costs of prosecution, a fine of five hundred dollars to the Commonwealth and undergo imprisonment in the Western Penitentiary for a period of two years;” that on appeal this judgment was affirmed and it was ordered “that the defendant appear in the court below, there to be committed to serve that part of his sentence which had not been undergone at the time the appeal was made a supersedeas;” and that the defendant was accordingly committed to the penitentiary, but that he failed to pay either the fine imposed or the costs of prosecution. Held, that ,the condition of the bond included the payment of the fine and costs.
    3. The appellate court has the power to impose such conditions as the foregoing,' inasmuch as the making of an appeal a supersedeas is a matter of grace and not of right, and there is no statutory limitation on the conditions that may be imposed in such a bond.
    January 2, 1912:
    Me. Chief Justice Fell and Me. Justice Beown dissent.
    Argued Oct. 12, 1911.
    Appeal, No. 18, Oct. T., 1911, by defendants, from judgment of C. P. Washington Co., Nov. T., 1910, No. 65, on demurrer in case of Commonwealth of Pennsylvania, to use of Washington County, v. W. L. Lenhart, George W. Lenhart. and William McKennan Smith.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Af-
    firmed.
    Assumpsit on a bail bond. Before Taylor, J.
    The facts,appear by the opinion of the Supreme Court.

      Error assigned was in entering judgment for the plaintiff on demurrer.

      B. W. Irwin, with him Jas. A. Wiley, for appellant.
    The appeal was prosecuted with effect, although not successfully: Com. v. Wistar, 142 Pa. 373; Hobart v. Hilliard, 28 Mass. 143; Johnson v. Hessel, 134 Pa. 315.
    The sureties on the bond on appeal cannot be held liable to pay or satisfy the judgment unless that is made a condition in the bond: Mason v. Smith, 79 Tenn. 67; Banks v. Brown, 12 Tenn. 198; Jones v. Parsons, 10 Tenn. 320; Bank of Metropolis v. Swann, 4 Cranch, C. C. 139.

      T. H. W. Fergus, with him C. L. V. Acheson for appellee.
    The appeal must be prosecuted with success: Karthaus v. Owings, 6 Harris & Johnson (Md.), 134;-Gibbs v. Bartlett, 2 W. & S. 29; Balsley v. Hoffman, 13 Pa. 603; Pittsburg Nat. Bank of Commerce v. Hall, 107 Pa. 583; Watterson v. Fuellhart, 169 Pa. 612.
   Opinion by

Mr. Justice Elkin,

Lenhart, the principal in the surety bond, was convicted and sentenced on the charge of having entered into a criminal conspiracy to defraud a state bank and its depositors. He took an appeal to the Superior Court and desired the same to be made a supersedeas. The learned president judge of the Superior Court upon consideration ordered that the appeal should operate as a supersedeas upon the defendant giving bail with one or more sufficient sureties, to be approved by the court below in which the case was tried, “conditioned that he will prosecute his appeal with effect and will abide by and comply with all orders and the judgment of the Superior Court in the cause.” The bond was executed and approved as directed. The appeal thus became a supersedeas and was prosecuted to judgment in the Superior Court with the result that the judgment of the court below was affirmed. In affirming the judgment the Superior Court made the following order: “The judgment is affirmed and it is ordered that the defendant appear in the court below, there to be committed to serve that part of his sentence which had not been undergone at the time this appeal was made a supersedeas.” It thus clearly appears that Lenhart did not prosecute his appeal with effect in the sense at least of having prosecuted it with success. The condition of the bond was that Lenhart “will prosecute his appeal with effect and will abide by and comply with all orders and the judgment of the Superior Court in the cause.” The condition of the bond was in the exact language of the order of the Superior Court making the appeal a supersedeas. The sentence originally imposed after the jury had returned a verdict of guilty required the defendant “to pay the costs of prosecution} a fine of five hundred ($500.00) dollars to the Commonwealth, and undergo imprisonment in the Western Penitentiary for a period of two years.” When the record was remitted the defendant was committed to the custody of the sheriff for the purpose of having the sentence executed. He was committed to the Western Penitentiary to serve his term of imprisonment and in this respect only has he complied with the sentence imposed upon him. He has failed to pay either the fine imposed or the costs of prosecution. The question raised by this appeal is whether the sureties in the bond are liable to pay the fine and costs uiider the facts herein-before stated. The appellants contend that when Len-hart, the defendant convicted on the charge of conspiracy, surrendered himself into the custody of the sheriff to be committed for the purpose of serving his sentence in obedience to the order of the Superior Court, the condition of the bond was complied with and the sureties were relieved from liability thereunder. It is contended that the condition of the bond upon which this suit was brought created an alternate obligation, or condition, that is to say, that the appeal will be prosecuted with effect, and failing to do so, Lenhart will abide by and comply with the order and judgment of the Superior Court in the cause. This view has been presented with great force by the learned counsel for appellants who rely upon Johnson v. Hessel, 134 Pa. 315, and Com. v. Wistar, 142 Pa. 373, to sustain their position. On the other hand, the appellee contends that the language used in expressing the conditions of the bond creates a twofold obligation, that is to say the sureties contracted for their principal that he would do two things and not one of two. It is urged that the principal undertook, first, to prosecute his appeal with effect, that is, with success; and, second, that he would abide by and comply with the order and judgment of the Superior Court, and that failure to perform either of the conditions worked a forfeiture of the bond. In support of their respective contentions the learned counsel representing both sides of the controversy have presented able arguments sustained in part at least by the citation of numerous cases. As to the interpretation of the language used to express the condition in the bond we are of opinion that the great weight of authority supports the contention of appellee and that this is no longer an open question in Pennsylvania. As we said in Balsley v. Hoffman, 13 Pa. 603, by Mr. Justice Bell in delivering the opinion of this court: “It may then be taken as conclusively settled, that the obligors in a replevin bond, whether they be called principals or sureties, are bound to make good each of its several conditions, among which stands prominently the stipulation to prosecute the replevin with success.” It has been held over and over again in our state that the stipulation to prosecute with effect means to prosecute with success: Gibbs v. Bartlett, 2 W. & S. 29; Pittsburg National Bank of Commerce v. Hall, 107 Pa. 583; Watterson v. Fuellhart, 169 Pa. 612. In the last case cited, Mr. Justice Dean, speaking for this court, said: “The several undertakings stipulated by a replevin bond constitute distinct and independent conditions, and a breach of any will constitute a forfeiture.” In support of this conclusion the cases above cited were relied on. We think it may therefore be accepted as settled law in our state that a stipulation in a bail bond to prosecute with effect means to prosecute with success; and that when the bond stipulates distinct and independent conditions, the breach of any one condition works a forfeiture. This rule has been adopted and followed in many other jurisdictions: Karthaus v. Owings, 6 Harris & J. (Md.) 134; Trent v. Rhomberg, 66 Texas, 249; Blair v. Sanborn, 82 Texas, 686.

This brings us to a consideration of the undertakings of the principal and sureties in the bond upon which suit was brought in the present case. The appeal was not prosecuted with success by reason of which failure there was a breach of one condition and consequently a forfeiture of the bond under the rule above stated. What liability attached to the sureties when the condition of the bond was broken? This depends upon the extent of their undertakings. Was their obligation simply that the principal should prosecute his appeal with effect, and failing to do so, that he would surrender himself into the custody of the proper officers for the purpose of serving his term of imprisonment under the sentence? We do not so read or understand the conditions of the bond, which were that: “Lenhart will prosecute his appeal with effect and will abide by and comply with all orders and the judgment of the Superior Court in the cause.” His sureties' contracted that he would do all of these things and not some of them, that is, he would prosecute his appeal with effect; would comply with all orders of the Superior Court; and would abide by its judgment. The Superior Court affirmed the judgment of the court below, and the judgment of the court below included the payment of a fine and costs of prosecution as well as a term of imprisonment. We do not see any escape from the conclusion that when the Superior Court affirmed the judgment of the court below, it did so as a whole, and included every part and condition of the sentence in its affirmance. This necessarily included the payment of the fine and costs as well as the term of imprisonment. It is true that in addition to the affirmance of the judgment, the Superior Court ordered the defendant to appear in the court below, there to be committed to serve that part of his sentence which had not been undergone when the appeal was made a supersedeas, but certainly it cannot be successfully contended that the order to commit for the purpose of serving the sentence relieved the defendant from the payment of the fine and costs. The principal was obligated to pay the fine and costs because it was the judgment of the court that he should do so, and the sureties contracted for their principal that he would comply with the orders and abide by the judgment of the Superior Court. When the Superior Court affirmed the judgment of the court below, the judgment of the lower court was made part of the judgment of the appellate court for every purpose of the case. In this connection it is important to bear in mind that the bond obligated the principal not only to comply with the orders of the Superior Court, but to abide by its judgment, and that a judgment was entered and a certain order made, both of which were clearly contemplated by the conditions of the bond. Counsel for appellants rely upon Com. v. Wistar, 142 Pa. 373, above cited, to support their contention. We cannot agree that the rule laid down in that case is controlling in, or necessarily applicable to, the case at bar. It must be conceded that the learned justice who wrote the opinion in that case made some statements which give support to the contentions pressed by the appellants here. What was there said must be understood as relating to the facts of the case then under consideration. The question in that case tinned upon the effect to be given a recognizance taken under the Act of March 29, 1832, P. L. 190. This act provides that the condition of the recognizance shall be “to prosecute such appeal with' effect, and to pay all costs that may be adjudged against him.” The recognizance was more comprehensive in terms than the act required and this court held that inasmuch as the act limited the condition of the bond to the payment of costs, nothing more could be added as a condition of the appeal. The attempt was there made to’ recover by way of damages interest on the fund for distribution during the time the appeal was pending. It was held that the payment of interest was no part of the costs to be paid, the security of which was provided for by a recognizance taken under the act of 1832. It was also held in that case that the sureties had only contracted to pay costs and that- their liability did not cover the payment of interest. No such question arises in the present case. There is no statutory limitation on the conditions that may be imposed in a bond such as was required when the appeal was made a supersedeas at the time the bond was executed. The obligors had the right to enter into a contractual obligation such as they undertook when they signed the bond in question. The making of the appeal a supersedeas was a matter of grace, and not of right, and it was clearly within the power of the Superior Court to impose the conditions named in the bond. We think these conditions include the payment of the fine and costs.

Assignments of error overruled and judgment affirmed.

Me. Chief Justice Fell and Me. Justice Beown dissent.


source: Caselaw Access Project

author: Pee Ctjeiam,

license: Public Domain

text:
    Swords, Appellant, v. West Brownsville Borough.
    January 2, 1912:

      Negligence — Municipality—Borough street — Area way — Contributory negligence.

    In an action for damages against a municipality for an injury alleged to have been caused by a defect in a highway a verdict is properly directed for the defendant where it appears that the plaintiff, while behaving in a disorderly manner on a borough street, fell into an area way that was on private property,-twenty-one inches from the-side of the street and separated from it by a stone wall eighteen inches in width and four inches high; that he lived in the vicinity and knew the area way; that he had lingered for some time around the hotel that it adjoined and had been scuffling in the barroom; that after leaving the hotel he engaged- in a -scuffle with a young man on the street corner, and while so engaged he moved with him from the front to the side of-the hotel, where, while stepping backwards or sideways, his foot struck the coping of the wall, causing his fall.
    Argued Oct. 12, 1911.
    Appeal, No. 44, Oct. T., 1911, by plaintiff, from judgment of C. P. Washington County, Nov. T., 1909, No. 68, on verdict for defendant in case of George Swords v. West Brownsville Borough.
    Before Pell, C. J., Beown, Mesteezat, Pottee, Elkin and Moschziskee, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Tayloe, J.
    The opinion of the Supreme Court states the case. ]

      Error assigned was in directing verdict for defendant.

      Frank Ewing, with him John H. Murdock & Son, for appellant.

      Harry A. Cottom, Frank P. Cottom and T. Jeff. Duncan, for appellee, were not heard.
   Pee Ctjeiam,

While behaving in a disorderly manner on a borough street, the plaintiff fell into an area way that was on private property, twenty-one inches from the side of the street and separated from it by a stone wall eighteen inches in width and four inches high. He lived in the vicinity and knew of the area way; he had lingered for some time around the hotel that it adjoined and had been scuffling in the barroom; after leaving the hotel he engaged in a scuffle with a young man on the street corner, and while so engaged he moved with him from the front to the side of the hotel, where, while stepping backwards or sideways, his foot struck the coping of the wall, causing his fall. The plaintiff’s injury was not caused by a detect in the street but by his own negligence. A verdict was properly directed for the defendant and the judgment is affirmed.


text:
    Little v. Greek, Appellant.

      Mines and mining — Mining lease — Description—Latent ambiguity — ■ Disputed question of fact — Evidence—Competency of witnesses — Pleading —Notice—Bill of particulars — Measure of damages.

    1. While the construction of a . written instrument is the exclusive province of the court, the description of land conveyed, its limits and contents, are frequently mixed questions of law and fact, and where from the generality of the terms used in a deed or from uncertainty of description, a doubt is raised as to the boundaries or location or limits of land sold, evidence aliunde may be resorted to for the purpose of aiding a jury to determine what land was intended to be included in .the grant.
    2. In an action to recover damages for coal mined and removed from a portion of a leased tract which had been reserved for the protection of farm buildings, the burden is on plaintiffs to show that the coal was removed from that portion of the tract excepted from the grant, and testimony of a surveyor and others called to establish the line answering the description of the deed is competent where the facts are in dispute, and what “garden fence” was in the minds of the parties as constituting one of the boundaries is the real question in 'controversy.

      ■ 3. Where in such a case the plaintiffs’ statement of claim was accompanied by a copy of the lease which contained a description of the coal reserved and in the bill of particulars filed by them under the rules of court the plaintiffs stated that they would confine the offer of evidence in their case in chief to establishing the facts averred in their statement of claim, this was notice that they would offer evidence to establish the location of the reserved coal; and evidence tending to show that the parties had come upon the ground and agreed upon the location of the disputed boundary line was relevant to this question.
    4. Under the circumstances of such a case it is not error for the court to allow the plaintiffs to prove the value of the coal at the pit mouth, from which was deducted the cbst of mining and transporting it to that point, the difference being the measure of the value of the coal in place, and to admit evidence of the royalty value of the coal in place.
    5. A provision in a lease of a certain tract for the purpose of mining the underlying coal, “excepting the coal under that portion of the tract first described .... which coal is hereby reserved for the protection of the farm buildings” constitutes an exception and not a reservation.
    Argued Oct. 12, 1911.
    Appeal, No. 97, Oct. T., 1911, by defendant, from judgment of C. P. Washington Co., Aug. T., 1910, No. 222, on verdict for plaintiff in case of James D. Little and Lloyd L. Little, for use of J. Y. H. Cook & Sons, Samuel C. Cook and Rowley M. Cook, partners under the name and style of J. V. H. Cook & Sons, v. John M. Greek.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Trespass for treble damages under the Act of May 8, 1876, P. L. 142, for mining on plaintiff’s land. Before McIlvaine, P. J.
    The opinion of the Supreme Court states the case.

      Errors assigned were various rulings on evidence, etc., discussed in the opinion of the Supreme Court.

      H. L. Williams, of McIlvaine, Williams & McCreight, with him James I. Brownson, of Donnans, Brownson & Miller, for appellant.
    If there were acts done in pais whereby the construction and effect of a written lease were

      January 2, 1912:
    to be effected, it was the duty of the plaintiffs under the rules to give notice of them in the bill of particulars, and the defendant had a right in preparing for trial, to rely upon the rules as requiring this. For the court to permit the testimony to be given in total disregard of the rule, was error: Rentzheimer v. Bush, 2 Pa. 88; Alexander v. Alexander, 5 Pa. 277; Green v. Hallowell, 9 Pa. 53.
    The “value” of the coal, etc., which is to be trebled, is its value in place, and if in fact the mineral has a market value by the acre in place, that value is the proper standard and measure: Oak Ridge Coal Co. v. Rogers, 108 Pa.. 147; Forsyth v. Wells, 41 Pa. 291.

      Boyd Crumrine, with him E. E. Crumrine, for appellee,
    cited on the question of damages: Ege v. Kille, 84 Pa. 333; Oak Ridge Coal Co. v. Rogers, 108 Pa. 147.
   Opinion by

Mr. Justice Elkin,

This suit was brought to recover treble damages under the Act of May 8, 1876, P. L. 142, for coal mined and removed from that portion of the leased tract which had been reserved for the protection of the farm buildings. After describing the coal excepted from the grant, it was expressly provided, “which coal is hereby reserved for the protection of the farm buildings and within which no opening shall be made, and upon which no mining operations shall be carried on.” The lessee accepted the grant subject to the exception, or reservation, whichever it may be determined to be, and the conditions imposed thereby. Appellant contends that the clause of the lease excepting the coal under a certain portion of the tract for the protection of the farm buildings constitutes a technical reservation, and if the meaning of the language used be doubtful, the grantee is entitled to the benefit of the doubt. This is a proper canon of construction as applied to a reservation in a deed, but in the case at bar we are dealing with an exception to a grant. It would do violence to the language used in the present case to hold that it was not an exception, which by its terms and by the nature of the thing reserved, it was intended to be, and to say that it was a reservation creating a new right or interest growing out of the transaction, which in the very nature of the estate granted and reserved it could not be. The clause “excepting the coal under that portion of the tract’first described” in express words excepted the reserved portion from the grant. The subject of the exception was a thing corporate and in esse when the grant was made; it was not something newly created, as a rent, or right of way or other incorporeal interest growing out of the transaction. Under all the cases this would be held to be an exception and not a reservation: Whitaker v. Brown, 46 Pa. 197; Kister v. Reeser, 98 Pa. 1. Independently, however, of whether the coal reserved was by way of exception or reservation, the lessor was entitled to the undisturbed use and enjoyment of it within the lines of the excepted portion of the tract. The underlying disputed question of fact was the location of the coal excepted from the grant. The learned trial judge, whose duty it was to construe the written instrument, concluded that the words used in describing the coal thus excepted from the grant were not so plain and unambiguous as to require that he should decide the question as a matter of law, but that there was a latent ambiguity which could be explained by parol testimony, thus making it a question of fact to be determined by the jury. While the construction of a written instrument is the exclusive province of the Court, the description of land conveyed, its limits and contents, are frequently mixed questions of law and fact; Collins v. Rush, 7 S. & R. 147. Where from the generality of the terms used in a deed, or from uncertainty of description, a doubt is raised as to the boundaries, or location, or limits of land sold, evidence aliunde may.be resorted to for the purpose of aiding a jury to determine what land was intended to be included in the grant: Hoffman v. Danner, 14 Pa. 25. This rule has always prevailed in :our. state and was-reasserted as late as Safe Deposit & Trust Company v. Bovaird and Seyfang Mfg. Co., 229 Pa. 295. In the present case the burden was on plaintiffs to show that the coal was removed from that portion of the tract excepted from the grant. The very first step in the order of .proof was to establish the lines answering the description in the deed. This they attempted to do by a surveyor and other witnesses called for the purpose. We think all of this testimony was competent because the facts were disputed, the eastern boundary line was uncertain, and what garden fence was in the minds of the parties was the real question in controversy. It is contended that the bill of particulars filed by the plaintiffs under the rules of court did not give any notice that the parties had gone upon the ground and agreed upon the location of the eastern line and that under the pleadings it was error to admit evidence tending to show such facts. This is made the subject of the first assignment of error. We cannot accept this view of the case, nor are we convinced that the rules of court were disregarded. The learned trial judge did not think so, nor do we. Accompanying the statement of claim was a copy of the lease which contained a description of the coal reserved. In their bill of particulars the plaintiffs stated that they would confine the offer of evidence in their case in chief to establishing the. facts averred in their statement of claim. This was notice that they would offer evidence to establish the location of the reserved coal which was the basis of their claim. All the evidence offered was relevant to this fundamental question in the case and we see no error in its admission.

The second, third, fourth and fifth assignments relate to the measure of damages adopted in the trial of the cause. Appellant contends that the only proper measure of damages was the acreage value of the coal in place. All parties to the controversy as well as the learned trial judge concede that the value of the coal in place was the proper measure of damages, but there is some disagreement as to the proper method of arriving at the value of the coal in place. It is perfectly clear that the general selling value of coal by the acre in the neighborhood would be a very uncertain standard by which to measure the value of one or two acres reserved for a particular purpose. A few acres so reserved would have no general selling value in the neighborhood. Under these circumstances the learned court below allowéd plaintiffs to prove the value of the coal at the 'pit mouth, from which was deducted the cost of mining and transporting it to that point, the difference being a measure of the value of the coal in place. There was also evidence of the royalty value of the coal in place, that is to say, ten cents a ton, the amount fixed under the terms of the lease. The effort of the trial judge was to require the parties to prove the value of the coal in place by the best evidence available under the circumstances. The witnesses offered for this purpose were competent, and we think the interests of appellant were properly safeguarded. The jury fixed the value of the coal in place upon the royalty basis of ten cents per ton, and this seems to have been fair and reasonable.

The other assignments of error are without substantial merit.

The learned trial judge presented this case to the jury with great clearness and intelligence. He treated every question raised with judicial fairness and submitted each point in controversy to the jury in a manner free from just criticism. The case was tried on its merits and the verdict of the jury must be accepted as the answer to the facts in dispute.

Judgment affirmed.


author: Me. Justice Elkin,

text:
    Hyde et al. v. Rainey et al., Appellants.

      Wills — Real estate — Underlying minerals — Severance—Implied severance.

    1. A testator may treat the minerals underlying his real estate as severed from the surface in making a disposition of his property and the intention to do so may be gathered by implication.

      Wills — Construction—Intention—“ If ” — Ambiguous or incomplete expression — Intention.
    2. The word “if” in a will is frequently construed to mean “when” in order to advance the apparent intention of the testator. Words are not construed as importing a condition if they are fairly capable of another interpretation, and this is particularly true where if the language is construed to import a condition precedent to the taking of the gift, the plain intention of the testator will be defeated.
    3. When the form adopted to express the intention is ambiguous or incomplete the intent nevertheless should prevail and in the interpretation of wills this should always be the end sought.
    4. An unlimited gift of proceeds vests in the beneficiaries an absolute estate in the corpus from which the proceeds arise.

      Wills — Construction—Intention of testator — Surface—Underlying minerals — Severance—Gifts of proceeds.

    5. A testatrix by an inartificially drawn will devised, in item five, the farm on which she resided to her son Harmon and his children, subject to the payment of certain legacies. By item nine it was provided: “It is my will that-if during the period cf-my natural life if the farm on which I reside shall be leased for the purpose of mining for coal, gas or oil that the proceeds of the lease shall be divided among my four children, share and share alike.” The words “if during the period of my natural life” were stricken out at the direction of the testatrix before the publication of the will. Held, that the only reasonable inference to be drawn from these provisions is that the testatrix intended by item five to devise the surface of the farm to her son Harmon and by item nine to devise the proceeds of the minerals among her four children, and this is equivalent to a devise of the absolute estate in these minerals to them.
    Argued Oct. 12, 1911.
    Appeal, No. 110, Oct. T., 1911, by defendants, from judgment of C. P. Washington Co., Feb. T., 1910, No. 216, for plaintiff on case stated in case of Sarah E. Hyde, Lydia A. Bebout,- Nancy McGregor, James R. McGregor, Nora McGregor, William McGregor and Elizabeth McGregor v. H. H. Rainey, James H. Rainey and Retta A. Rainey.
    Before Fell, G. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.
    Affirmed.
    Case stated to determine rights and title- to the coal, oil and gas in and under a tract of land in Nottingham township. Before Taylor, J.
    By the case stated it appeared that Jane Rainey died on August 1,1890, at the age of eighty-one years, leaving a last will and testament made on January 4,1890.
    The fifth item of the will was as follows: “I will and bequeath to my son Hermon H. Rainey all that tract of land situated in Nottingham Township, Washington County, Penna. on which I now reside subject to the above named bequests which he is to pay to my daughters Lydia Bebout and. Maria J. McGregor, and One Hundred Dollars to John Dixon will be hereinafter mentioned. The above named farm contains Two Hundred and Twenty acres more or less, together with all the farming implements which I possess, including One Two Horse Wagon, One Four horse wagon and one Spring Wagon, and at the death of my son Harmon H. Rainey the above bequest is to descend to his children.”
    The sixth item of the will was as follows: “It is my will that if — during -the period- of my-natural life if the farm on which I reside shall be leased for the purpose of mining for coal, gas or oil'that the proceeds of the lease shall be divided between my four children, viz: Sarah-E. Hyde, Lydia A. Bebout, Maria J. McGregor and Harmon H. Rainey, share and share alike.”
    The tract of land on Which the said Jane Rainey lived at the time of the execution of the will, which is referred to in the ninth item of her will, is the same tract of land which was devised to Harmon H. Rainey for life, with remainder to his children, by the fifth item of her will.

      This tract of land was never leased during the lifetime of the said Jane Rainey for the purpose of mining for coal, gas or oil, nor has it ever been so leased since her death. No gas nor oil wells were ever drilled upon said property, neither have any coal mines ever been opened upon the same. ■
    The plaintiffs in the case stated were Sarah E. Hyde and Lydia A. Bebout, daughters of Jane Rainey; Nancy Mc-Gregor, James R. McGregor, Nora McGregor, William McGregor and Elizabeth McGregor, sons and daughters of Maria J. McGregor, a daughter of said Jane Rainey, who died intestate before the beginning of this action and subsequent to the death of her mother, the said Jane Rainey. The defendants are H. H. Rainey, son of Jane Rainey and the Harmon H. Rainey named in her will; and James H. Rainey and Retta A. Rainey, children of the said H. H. Rainey.

      Error assigned was in entering judgment for plaintiffs.

      M. W. Acheson, Jr., of Patterson, Sterrett & Acheson, with him Irwin & Wiley, for appellants,
    cited on the construction of the term “lease,” Denniston v. Haddock, 200 Pa. 426; Blakley v. Marshall, 174 Pa. 425; Gallagher v. Hicks, 216 Pa. 243; Coolbaugh v. Coal Co., 213 Pa. 28.

      John M. Freeman and D. T. Watson, with them Harry A. Jones, Francis R. Harbison and Harry F. Stambaugh, for appellees.
    The intention of the testatrix to give the proceeds of the coal under her farm to her four children equally, is beyond any doubt: Christy v. Christy, 162 Pa. 485; Mulliken v. Earnshaw, 209 Pa. 226; Holbrook’s Est., 213 Pa. 93; Dubois v. Ray, 35 N. Y. 162; Chapman v. Cheney, 191 111. 574 (61 N. E. Repr. 363).
    The condition in the ninth item of the will is one merely of form and not of substance, it does not postpone the vesting of the gift in the four children at the death of the testatrix: Janney v. Sprigg, 7 Gill (Md.), 197; Meehan v. Brennan, 45 N. Y. Supp. 57; Cahill v. Russell, 140 N. Y. 402 (35 N. E. Repr. 664); Pits v. Pelham, 1 Levinz, 304; Bentham v. Wiltshire, 4 Madd. Ch. 44; Brown v. Higgs, 8 Yes. Jr. 561; Mifflin’s App., 121 Pa. 205; Kief el v. Keppler, 173 Pa. .181; Keene’s Est., 221 Pa. 201; Hanna’s App., 31 Pa. 53; McFait’s App., 8 Pa. 290; Christy v. Christy, 162 Pa. 485.
    January 2, 1912:
    The bequest to the four children of the proceeds of the coal, if or when leased, constitutes an unlimited gift of such proceeds, and the four children take a fee in the coal:. Roberts’s App., 59 Pa. 70; Beilstein v. Beilstein, 194 Pa, 152; Carlyle v. Cannon, 3 Rawle, 489; Drusadow.et al. v. Wilde et al., 63 Pa. 170.
   Opinion by

Me. Justice Elkin,

What was the intention of the testatrix as gathered from the four corners of her will? The answer to this question is decisive of the present controversy. Two views are strongly and ably presented, one by appellants and the other by appellees, and each view is well supported by reason and authority. To sustain either view it is necessary to find that it was the intention of the testatrix to so dispose of her property. The testatrix at the time of making the will in question was eighty-one years of 'age, and she died about seven months after its execution. The will was drawn by a minister of the gospel, who, it is apparent, was not an apt draughtsman. For the purposes of this case only two items of the will need be considered. By item five the farm on which testatrix resided was given to her son Harmon and his children, subject to the payment of certain legacies. Subsequently the testatrix undertook to dispose of the coal, gas and oil underlying the same farm in item nine, which provides: “It is my will that if-during the period of my-natural life-if the farm on which I reside shall be leased for the purpose of mining for coal, gas or oil that the proceeds of the lease shall be divided between my four children viz Sarah E. Hyde, Lydia A. Bebout, Maria J. McGregor and Harmon H, Rainey share and share alike.” In' the attestation clause the two subscribing witnesses certify that the words “if during the period of my natural life” were stricken out by the direction of the testatrix before the publication of the will. The farm which is the subject of these devises was not leased for the purpose of mining coal, gas or oil during the life of the testatrix nor at any time since her death. Appellants contend that Harmon H. Rainey and his children under item five of the will took title to the entire tract of land in question, — the coal, oil and gas as well as the surface; while the appellees claim that the testatrix intended to sever the coal, oil and gas from the surface and to give the proceeds share and share alike to the four children named in item nine. For the appellants it is urged that the testatrix meant that the whole title to the farm, surface and minerals, was tó be enjoyed by her son Harmon at least for life, and then to descend to his children, unless and until the coal, oil and gas were leased, in which contingency the proceeds of such lease should vest in her four children, but if no such lease were made during the life of testatrix, or could be lawfully made after her death, the whole title vested in those taking under item five. The position of the appellees is that the testatrix had in mind two separate and distinct estates in the farm to which items five and nine relate. In other words, she treated her farm as if there had been an actual severance of the mineral estate from the surface land. Upon this assumption, it is argued, that the testatrix intended to devise the surface to her son Harmon/and his children under item five, and the proceeds of the coal, oil and gas to her four children equally under item nine. That there calx be a severance of the minerals from the surface so as to create a separate estate in each, is too well settled to need the citation of authorities. This rule is as old as the common law and is of universal application in this country. It adds value to property and makes it possible for the owner of the soil to sell and convey the underlying mineral estate, frequently for a large, consideration, while he re^tains the surface for agricultural and other purposes. Such a beneficial rule of property should not be cut down or impaired by refinements and distinctions intended to defeat rather than widen its scope and purpose. It is true that the severance is generally made by deed or other conveyance, and that until so made, the title to the land is regarded as an entirety including minerals as well as surface. But that the severance can be made by will is not an open question in this state, for it was expressly so decided in Christy v. Christy, 162 Pa. 485. It must therefore be accepted as settled law that the testatrix in the present case had the undoubted legal right to devise the surface of the farm in question to her son Harmon, and the proceeds of the underlying coal to her four children. The real question is, did she do these things? It must be conceded that she did not do so in express words and it is therefore necessary to determine whether her intention to thus dispose of her property appears from the language of her will. Mr. Justice Williams in discussing the intention of the testator in disposing of the surface and minerals in Christy v. Christy, supra, said, inter alia: “It will be noticed that in the devise to Agnes the reservation of the mineral right appears by implication, while the gift to her of her equal share in its proceeds is in express words. On the other hand, in the devise to Gallitzin the reservation is in express words and the gift of an equal share in the minerals is to be gathered only by implication.” In other words, this court there held that although the devise to Agnes was of the farm on which she now resides, there was an implied reservation of the underlying coal because of the qualifying words “should the coal be opened on said land, or sold in a body, she, my daughter Agnes, to have equal share with the other heirs.” And as to Gallitzin, while there was an express reservation of the mineral right from the farm devised to him, the gift of an equal share in the minerals was held to arise by implication. This is authority for the rule that the testator may treat the minerals as severed from the surface in making a disposition of his property and that the intention to do so may be gathered by implication. This brings us to a consideration of the will in the present case. The intention of the testatrix to give the proceeds of the coal under the farm devised to her son Harmon to her four children appears in item nine of her will. We cannot read items five and nine without coming to the conclusion that the testatrix regarded the surface of her farm as having value for agricultural purposes, and the coal, oil and gas underlying the same as an estate having value separate and apart from the surface. She undertook to treat them as two separate estates, but her scrivener did not use apt language in giving expression to her intention, and as a result of this failure to clearly express what the testatrix meant we have here presented a case full of perplexing questions involving title to a valuable mineral estate. As hereinbefore stated, appellants contend that they took the whole title to the farm, surface and minerals, under item five and that the four children were only to take an estate upon condition under item rune, and the condition being unfulfilled during the life of the testatrix and being too remote to be fulfilled thereafter, the gift must fall and the whole estate pass under item five. Such a construction eliminates item nine from the will and entirely defeats whatever intention testatrix had in mind in giving the proceeds of the coal to her four children. The gift of one-fourth of the proceeds of the coal by item nine to her son Harmon cannot by any process of reasoning be reconciled with the contention now made by appellants that she had devised all the coal absolutely to the same son and his children under item five. It is inconceivable that this old lady, more than four score years of age and nearing the end of life, was playing fast and loose with her own children by giving all the coal to her son Harmon in one item of her will and by a subsequent item dividing the proceeds of the same coal equally among her four children including the son Harmon. The only reasonable inference to be drawn from these provisions of the will is that the testatrix intended by item five to devise the surface of the farm to her son Harmon, and by item nine to divide the proceeds of the minerals among her four children. This is exactly what was done in Christy v. Christy, supra. We must now consider whether what she intended is to be defeated because a scrivener, unfamiliar with legal requirements, failed to clearly express her intention. That the leasing of the coal was not limited to the period of the natural life of the testatrix clearly appears from the will itself. The scrivener had so prepared the original draft of the will, but as appears in the attestation clause this provision was stricken out by order of the testatrix before it was finally executed. There could be no more positive proof that she did not intend the gift of the proceeds of the coal to her four children to depend upon a leasing in her lifetime. But with this phrase eliminated the language is ambiguous and the intention not clearly expressed. “It is my will that .... if the farm on which I reside shall be leased for coal, gas or oil, that the proceeds of the lease shall be divided between my four children,” is the final disposition made of the mineral estate. What did the testatrix mean by this provision of her will? Did she intend to give the proceeds of the coal to her four children, if and only if, the coal at some time shall be leased, or did she intend her four children to have the proceeds when these minerals shall be leased or sold? She certainly intended to give the proceeds to her four children share and share alike, because she says so, and this according to her scheme was to be done if, meaning when or whenever, the minerals are converted into proceeds. The word “if” in a will is frequently construed to mean “when” in order to advance the apparent intention of the testator: 21 Cyc. 1725; 2 Williams on Executors, 1086. We think that the word “if” was used in that sense in the present case. Words are not to be construed as importing a condition if they are fairly capable of another interpretation. In the case at bar the language used is not only capable of another interpretation, but if construed to import a condition precedent to the taking of the gift, the plain intention of the testatrix will be defeated and one very important item of her will entirely eliminated.

But it is argued that the proceeds of the coal, gas and oil are only to be enjoyed by the four children named when these minerals are leased, and until there is a leasing nothing passes under item nine of the will. This view looks to the form rather than to the substance of the gift. The testatrix was primarily making a disposition of the proceeds and the method of converting the minerals into proceeds was only incidental to the enjoyment of the gift. It seems to us perfectly clear that the testatrix did not use the word “lease” in any technical sense, and that she 'did not intend to make the enjoyment of the gift depend upon a technical leasing, but that she used this term to indicate a method of converting the minerals into proceeds. When the form adopted to express the intention is ambiguous or incomplete the intent nevertheless should prevail, and in the interpretation of wills this should always be the end sought: Cahill v. Russell, 140 N. Y. 402. We think it was the intention of the testatrix to give the proceeds of the minerals to her four children, and in order to carry out this intention the power to sell or lease is necessarily implied. However, it is not necessary to discuss the question of the power to sell or lease, or in whom such power is vested, because an unlimited gift of the proceeds vests in the beneficiaries an absolute estate in the corpus from which the proceeds arise: Carlyle v. Cannon, 3 Rawle, 489; Roberts’s App., 59 Pa. 70; France’s Est., 75 Pa. 220; Beilstein v. Beilstein, 194 Pa. 152; Duffy’s Est., 209 Pa. 390. In Christy v. Christy, supra, no power to sell the coal was given to anyone and the reservation of the coal from the surface of the farm devised to Agnes appeared only by implication, yet it was held that Agnes only took the title to the surface of the farm and that the coal passed to the devisees as tenants in common, or in severalty, under the will, because it was the manifest intention of the testator to thus dispose of his property. The same rule applies to the case at bar. Here we think it was the manifest intention of the testatrix to give the proceeds of the coal, gas and oil to her four children, share and share alike, and this is equivalent to a devise of the absolute estate in these minerals to them. In this view the estate must be regarded as vested and not contingent. When the contingency is annexed to the payment or enjoyment of the gift and not to the substance the legacy will be construed as vested: Manderson v. Lukens, 23 Pa. 31; Pennock v. Eagles, 102 Pa. 290. This case is not free from difficulty, and very good reasons can be and have been given to sustain the view pressed upon us by appellants, but the conclusion reached is the only one which gives force and effect to every part of the will. It does no violence to the language used; it makes the will consistent in all of its parts; and, in our opinion, carries out the manifest intention of the testatrix.

In conclusion it may be added that the rule so strongly insisted upon by appellants that an absolute estate will not be cut down by subsequent provisions of doubtful import has no controlling force under the facts of this case. As we view the will as a whole the intention of the testatrix was to give her son Harmon and his children' only the surface of the farm in question and not the minerals underlying the same. This being the case, the devise was not cut down by the disposition made of the minerals under item nine.

Judgment affirmed.


author: Per Curiam,

text:
    Day, Appellant, v. Thompson.

      Wills — Construction—Estates in remainder — Gift to a class.

    Testator devised to his son certain real estate upon condition of his paying to the testator’s widow a specified annuity; and then provided “at his death to be divided among his living children as follows: — Five hundred dollars to M. (a daughter of the son), the remainder to be equally divided among the other children.” At the date of the will the son had five children; another child was born before the death of the testator and two were born afterward. Held, that the words “at his death” referred to the death of the son and fixed the time for division; that the words “living children” and “other children” were descriptive of the persons who were then to take; and that until the time for distribution was reached, the persons entitled to shares could not be ascertained.
    Argued Oct. 13, 1911.
    Appeal, No. 113, Oct. T., 1911, by plaintiffs, from judgment of C. P. Washington Co., May T., 1911, No. 2, for defendant on case stated in suit of H. S. Day et al. v. Josiah V. Thompson.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Case stated to determine marketable title to real estate. Before Taylor, J.
    From the case stated it appeared that the plaintiffs were H. S. Day and his five children who were born before the death of I. N. Day, the testator, from whom the plaintiff claimed title. The defendant was the purchaser of the coal in question from H. S. Day and his five children. Other facts appear by the opinion of the Supreme Court.
    The court entered judgment for defendant. Plaintiffs appealed.

      Error assigned was in entering judgment for defendant on case stated.

      R. W. Parkinson, Jr., for appellants,
    cited: Pennock v. Eagles, 102 Pa. 290; Black v. Woods, 213 Pa. 583; Ross v. Drake, 37 Pa. 373; Vance’s Est., 209 Pa. 561; Carstensen’s Est., 196 Pa. 325; Keller v. Lees, 176 Pa. 402; Wetherill’s Est., 214 Pa. 150; Cresson’s App., 76 Pa. 19.
    January 2, 1912:

      Harry Bussell Myers, for appellee,
    cited: Craige’s App., 126 Pa. 223; McBride v. Smyth, 54 Pa. 245; Raleigh’s Est., 206 Pa. 451.
   Per Curiam,

The question presented by this appeal is whether the plaintiffs could convey a good title to all the coal under a tract of land which they held under the following devise:

“Art. 2d. I will to my son Henry S. Day the real estate known as the Dr. H. W. Blachly Farm, together with two receipts I hold, one calling for Two Thousand Dollars, the other for Sixty Dollars during his natural life, — under the following conditions — by paying to his mother One Hundred and Twenty Dollars semi-annually if she thinks proper to leave the farm, and Seventy Five if she remains. At his death to be divided among his living children as follows, — Five Hundred Dollars to Mary C. Day, the remainder to be divided equally among the other children except to Arthur and Harry Forty Dollars each more than the others in lieu of two gold watches which Clinton and Howard are to have. This division is no way or manner to interfere with the legal collection of such notes as I hold against this estate.”

At the date of the will Henry S. Day had five children, another child was born before the death of the testator, and two have been born since. The agreement of sale was executed by Henry S. Day and his five children who were living at the date of the will. It was held by the learned judge of the common pleas that the intention of the testator was that the remainder of the estate should be divided among the children of his son, Henry S. Day, who were living at the death of his son. In this conclusion we concur.

The words “at his death” refer to the death of Henry S. Day and not to the death of the testator, and fix the time for division. The words “living children” and “other children” are descriptive of the persons who are then to take; until the time for distribution is reached, the persons entitled to shares cannot be ascertained.

The judgment is affirmed.


text:
    Washington County v. Marquis, Appellant.

      Taxation — Assessment—Appeal—Evidence—Coal lands.

    1. On an appeal from a valuation of lands fixed by the board of revision for purposes of taxation, a prima facie case is made out by the county introducing in evidence the assessment books of- record in the office of the county commissioners, as approved or corrected by the' board of revision, together with other record data relating to the valuations appealed from. The burden is then on the complaining owner to overcome the prima facie case and to show by the weight of the evidence that he was aggrieved by the valuation so fixed.
    2. Farm lands underlaid with veins of coal, unsevered and unproductive, are to be assessed for purposes of taxation at their market value, and in ascertaining the market value, the value of the veins of coal, although unsevered and unproductive, is to be considered by the assessor or other taxing authorities in arriving at a proper valuation for assessment purposes.
    3. On an appeal from the court of common pleas sustaining a tax assessment made by the board of revision-, findings of fact relating to valuations will not be disturbed by the appellate court except for manifest error.
    4. On an appeal from a tax assessment of farm lands underlaid by coal, a witness may state any facts within his knowledge relating to the character of the underlying coal, but he cannot testify to the general reputation of such coal; nor is it reversible error to refuse an offer to prove the valuations of the same lands made at a former triennial' assessment.
    5. In the assessment of farm lands underlaid with- coal, unsevered, there should be no separate assessment of coal as such, but a valuation should be placed upon the whole tract of land. In such cases the coal can only be considered as an element tending to appreciate the value of the land.

      Argued Oct. 13, 1911.
    Appeal, No. 114, Oct. T., 1911,
    by defendant, from order of C. P. Washington Co., Aug. Term, 1910, No. 138, dismissing appeal from tax settlement in case of Washington County v. W. E. Marquis.
    Before Fell, C. J., Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from tax assessment. Before McIlvaine, P. J.
    At the hearing the court under objection- and exception overruled various offers to prove the general reputation in the locality as to the character, thickness, quality and value of the coal vein under the land assessed. [1-6]
    The court entered a decree nisi sustaining the assessment.
    The appellant filed various exceptions to the findings of fact. These exceptions were overruled. [7-12]
    On exceptions to the conclusions of law of the adjudication McIlvaine, P. J., filed the following opinion:
    Exception 1:
    The court erred in holding that all property should be valued and assessed for taxation at its actual value, instead of holding that each separate farm of a taxpayer should be assessed at such price as the assessing officers, after due examination and consideration, shall believe it would sell for, if sold singly and separately at a bona fide sale after due public notice.
    If the appellant’s counsel have interpreted our adjudication to mean that we set up a different standard than that fixed by the act of assembly, then the court has been misunderstood. We hold that all real estate should be valued and assessed for taxation at its actual value (not a proportionate part of its value) and that the best evidence of the actual value of a piece of real estate is what it would sell for if sold singly and separately at a bona fide sale after public notice. This exception, with this explanation, is overruled. [13]
    Exception 2:

      The court erred in holding, under the constitutional requirement as to uniformity, that the equalization of the valuations of appellants’ lands by the county commissioners, was not excessive nor erroneous, for that they did not equalize them at higher valuations than the valuations of lands underlaid with coal in the other parts of the county.
    Under the Act of April 19, 1889, P. L. 37, this court in disposing of these appeals was in duty bound, in the language of the act, “to have due regard to the valuation and assessment made of other real estate in the county.” The burden was on the appellants to show that their assessments were too high, measured by the way other owners of like property had been assessed. If they have been treated as well as other owners of like property through the county, then they have no just ground of complaint, for it would be 'an injustice to the others if we should destroy this equality of assessment by reducing that of the appellants and leave the others as they are. This exception is overruled. [14]
    Exception 3:
    The court erred in holding that the evidence offered by the appellants by the tables of aggregate assessments and of county indebtedness, was not to be considered as proper for the consideration of the county commissioners in making the valuations, in view of what improvements the county possesses for the county expenditures, without finding also that the improvements specified have not yet been paid for by the expenditures, the indebtedness for them being represented by bonds unpaid.
    All we meant by what we said as to the matter referred to in this exception was that the county for the bonds it had issued had got value received. It is not true that the improvements specified in our adjudication, such as court house, bridges, Flinn roads, etc., have not yet been paid for. They have all been paid for, and that is the reason we owe the debt created by the bonds. This exception is overruled. [1-5]
    Exception 4:

      The court erred in holding that the several assessors, .in making the valuations for assessment of appellants’ property followed the proper method provided by law. This exception is overruled. [16]
    Exception 5:
    The court erred in not holding that the valuations made .by the assessors of appellants’ farms, were irregular in form and unauthorized by law, in that they valued and assessed the underlying coal, unsevered and unopened and undeveloped, and entirely unproductive, separately from the surface, and then added the valuation of the coal to the valuation of the surface, as though but one assessment had been made upon the land.
    This is not what the assessors did. They valued each of the appellants’ farms as a whole, but they took into consideration, as they were bound to in making that value, how much if any the presence of the coal in and under each of the farms of the appellants would add to the value of that farm, — just the same as the presence of a building on a farm would be considered as an element in estimating the value of the farm.
    And right here, we may observe in conclusion, is found the only real point of contention in these appeals, as we view it. The appellants claim that as the Pittsburg or River vein of coal underlying their farms is unsevered and unproductive, it should not be taken into consideration by the assessors or board of revision in estimating the value of their farms, notwithstanding the same vein of coal in or under adjoining farms where severed should be assessed; or, in other words, that severed coal when in the hands of coal operators or persons who have purchased it as an investment, should be valued and taxed, but that when the coal is in and under a farm and not severed, it should not be taken into consideration in valuing the farm and be assessed. That is, that a farmer who holds his coal unsevered with a view of getting a higher price for it in the future, ought not to pay any tax upon it because it is unproductive, but that the coal in the hands of another person if severed but held for future developments, ought to be taxed. This position we think is clearly untenable. It is true that where coal has not been severed, it cannot be taxed separate from the surface, but when the farm is taxed both the surface and the unsevered coal can be taken into consideration in fixing the value, and if the unsevered coal is just as valuable as the coal adjoining it which is severed, then the increase in value which would be caused in the farm, where the coal is unsevered by reason of its presence, ought to be taken into consideration in fixing the valuation for the taxation of that farm.
    January 2, 1912:
    As was remarked in our adjudication, these sixty appellants combined together to take these appeals that the question to which I have just referred might be settled, and as the appellants may desire to have the higher court pass upon this question, we think it would be nothing but fair to the appellants to enter a final decree dismissing their appeal in one of the cases, and allow the making of a final decree in the others to be postponed until the higher court has passed upon the case that has been appealed, and if counsel for the plaintiff and defendants will agree and indicate to the court what case they desire to have appealed, a final decree iq that case will be prepared. [17]
    The court entered a final decree dismissing the appeal.

      Errors assigned were (1-6) rulings on evidence as above; (7-12) in overruling exceptions to findings of fact; (13-17) in overruling exceptions to conclusions of law; (18) decree dismissing the appeal.

      Boyd Crumrine, with him Thos. H. Wilkinson and E. E. Crumrine, for appellants.

      Isaac W. Baum, for appellee.
   Opinion by

Mr. Justice Elkin,

This is a voluminous record and we have examined it with care. There are twenty-one assignments of error covering many pages, but the legal questions involved are few and simple. To consider each assignment in detail would unnecessarily prolong the discussion without serving any useful purpose. While it is true when the case came into the court below on appeal from the valuation fixed by the board of revision, the proceeding was de novo, it is equally true that a prima facie case was made out by the county introducing in evidence the assessment books of record in the office of the county commissioners, as approved or corrected by the board of revision, together with other record data relating to the valuations appealed from. The burden was then on the complaining real estate owner to overcome this prima facie case and to show by the weight of the evidence that he was aggrieved by the valuations so fixed: Lehigh & Wilkes-Barre Coal Company’s Assessment, 225 Pa. 272; Phila. & Reading Coal and Iron Company v. County Commissioners, 229 Pa. 460. The main contention of appellant is that inasmuch as the coal underlying the land in question was unsevered, unopened and unproductive, it should be considered, if at all, at no greater value than would be balanced by injuries to the remaining strata, if the coal were severed, mined and removed. The meaning of this proposition is not entirely clear, but as we gather from the printed argument the contention is that farm lands under-laid with veins of coal, unsevered and unproductive, should be assessed at their surface value for agricultural and other like purposes without adding anything, or at least only a nominal value for the underlying coal. We find no support for this theory either in the statutes, or in the decisions of the courts, or in reason. It is true, of course, that until the coal is severed by conveyance to another party, the owner of the soil is assessed with the value of the entire estate including the coal, but this does not mean that in determining the value of the estate in land the coal is to be considered of no value. All elements of value affecting the selling price of the tract as a whole, including the incumbent and superincumbent strata, the improvements, location and availability for either agricultural or commercial uses, should be given due consideration by the taxing authorities in determining the assessable value. Where the coal is unsevered, the land is the subject of taxation as real estate, and its value is what the law contemplates shall be assessed. We fully agree that the only standard of valuation recognized by law in making assessments is market value as distinguished from actual value; or, more accurately expressed, actual value limited and defined by market value. This is clearly shown by the acts of 1841 and 1842, which require the valuation to be fixed upon the basis of selling price at a bona fide sale after due notice. Any element of value tending to affect selling price may be taken into consideration, by the assessor, or other taxing authorities, in arriving at a proper valuation for assessment purposes. If underlying the surface there is a seam of coal, and the coal has a market value, the value of the whole estate in the land is necessarily increased thereby. Why should not such an element of value be considered in fixing a valuation upon the whole tract? No good reason for eliminating such a material element of value has been given, and as we view it none can be suggested. The fact that a tract of land is underlaid with a valuable seam of coal having a market value would influence the mind of a probable purchaser, and we have frequently said that anything that would add value to a property in the mind of one contemplating a purchase should be considered. Dormant and inactive coal is not as valuable as coal located near open and producing mines. Then, again, the value of coal depends upon quality, quantity, thickness of seam, mining conditions, accessibility, transportation facilities, and many other like conditions. We have exhaustively examined this record with the aid of the argument in support of the contentions of appellant but have failed to discover that the learned court below disregarded any rule of law or any statutory requirement in arriving at the proper valuation of the lands in question. The whole subject was considered with painstaking care and all elements of value, those that appreciate as well as those that depreciate, were given due consideration. Allowance was made because the coal was dormant and inactive, and in fixing the valuations due consideration was given to the fact that the coal was unsevered and unproductive. The real complaint here is that the valuations are too high, but these are questions of fact which we would not disturb except for manifest error. We find no such error, but on the other hand think the findings are amply-sustained by the evidence. Some complaint is made about the exclusion of certain offers of evidence tending to prove the reputation of the underlying coal strata in the neighborhood where the lands are located. The learned court below ruled that any facts within the knowledge of the witness relating to the character of the coal were relevant and would be heard, but general reputation could not be proven. There was no error in this ruling. Complaint is also made that the appellant was not allowed to prove the valuations for the same lands at the triennial assessment in 1907 for the purpose of comparison. When the offer was made, it was objected to and the court sustained the objection. The valuation of the lands in 1907 was no proper measure of their value in 1910. The valuation in 1907 may have been too low and the lands may have appreciated in value during the succeeding years. The fact to be determined was their valuation in 1910, and what may have been done in previous years threw but little if any light upon this question. The offer was properly excluded. We agree with the learned counsel for appellant in the contention that in the assessment of farm land underlaid with coal, there should be no separate assessment of the coal as such, but a valuation should be placed upon the whole tract as land. In such cases the coal can only be considered as an element tending to appreciate the value of the land. We cannot agree, however, that the learned court below disregarded the rule in this respect. Jn overruling appellant’s fifth exception to the conclusions of law, the learned court distinctly says that the assessors did not make the assessment in this way. They valued each farm as a whole, and took into consideration to what extent if any the underlying coal appreciated the value of the farm. The court and the taxing authorities proceeded upon this basis and in this there was no error.

Decree affirmed at the cost of appellant.


text:
    Washington County v. Wieneke, Appellant.
    January 2, 1912:
    Argued Oct. 13, 1911.
    Appeal, No. 115, Oct. T., 1911,
    by defendant, from order of C. P. Washington Co., Aug. Term, 1910, No. 154, dismissing appeal from tax settlement in case of Washington County v. August Wieneke.
    Before Fell, C. J., Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
   Opinion by

Mr. Justice Elkin,

For the reasons stated in the opinion filed to No. 114, October Term, 1911, Washington County v. Marquis, ante, p. 552, the decree entered by the court below in this case is affirmed at the cost of appellant.


text:
    Washington County v. Cunningham, Appellant.
    Argued Oct. 13, 1911.
    Appeal, No. 116, Oct. T., 1911, by defendant, from order of C. P. Washington Co., Aug. Term, 1910, No. 160, dismissing appeal from tax settlement in case of Washington County v. S. C. Cunningham.
    January 2, 1912:
    Before Fell, C. J., Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
   Opinion by

Mr. Justice Elkin,

For the reasons stated in the opinion filed to No. 114, October Term, 1911, Washington County v. Marquis, ante, p. 552, the decree entered by the court below in this case is affirmed at the cost of the appellant.


text:
    Washington County v. Scott, Appellant.
    January 2, 1912:
    Argued Oct. 13, 1911.
    Appeal, No. 117, Oct. T., 1911, by defendant, from order of C. P. Washington Co., Aug. Term, 1910, No. 177, dismissing appeal from tax settlement in case of Washington County v. J. T. Scott.
    Before Fell, C. J., Brown, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
   Opinion by

Mr. Justice Elkin,

For the reasons stated in the opinion filed to No. 114, October Term, 1911, Washington County v. Marquis, ante, p. 552, the decree entered by the court below in this case is affirmed at the cost of the appellant.


author: Mr. Justice Brown,

text:
    Hunter Construction Company v. Lyons, Appellant.

      Contract — Sale—Delivery of possession — Constructive delivery.

    1. Where it appears that personal property which is the subject of a sheriff’s interpleader had belonged to the defendant in the execution and is found by the sheriff in his apparently continuing and uninterrupted possession and use, the burden is upon a person claiming through him of proving by sufficient evidence at least the constructive delivery of it.

      2. In passing upon the question of the sufficiency of the constructive delivery of a chattel sold, the character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties and the usages of the trade or business must be taken into consideration.
    3. When constructive delivery of possession is relied upon as sufficient under the rule requiring change of possession from the vendor to the vendee, such delivery will not be held insufficient as a matter of law if the purchase was in good faith and for a valuable consideration, followed by acts intending to transfer the possession as well as the title, and the vendee assumes such control of the property as to reasonably indicate a change of ownership.
    4. Where nothing has been done by the vendee to reasonably indicate to all concerned the fact of the change of ownership, it is the duty of the court to pronounce a mere symbolic delivery to be insufficient, but where there is evidence of such assumption of control as to reasonably indicate a change of ownership, it is for the jury to say whether it was ,bona fide or merely colorable, and whether it was enough to give notice to the world.
    5. On the trial of a feigned issue under a sheriff’s interpleader to determine title to a steam roller, stone crusher and other implements, ¡the' plaintiff in the execution is entitled to binding instructions in his favor where the uncontradicted evidence is that the defendant in the execution, an individual contractor, who was also the president of the foreign corporation which was the claimant and the plaintiff in the interpleader, had executed a bill of sale of the articles in question to the claimant, that he did not deliver possession of them, that he did not remove his own name which was upon all of them, that after the bill of sale he had continued to use the equipment in fulfilling an individual contract of his own, paying a rent therefor to the claimant, and that he had given no notice of the sale, directly or indirectly, to anyone within this state.
    Argued Oct. 13, 1911.
    Appeal, No. 167, Oct. T., 1911,
    by defendant, from judgment of C. P. Washington Co., Nov. T., 1910, No. 8, on verdict for plaintiff in case of The Hunter Construction Company v. Robert Lyons, Receiver of the Cosmopolitan National Bank of Pittsburg.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Feigned issue under sheriff’s interpleader. Before McIlvaine, P. J.
    The facts are stated in the opinion of the Supreme Court.

      The court charged in part as follows:
    Now, gentlemen, the defendant has asked us to instruct ■ you as a matter of law that these facts that have been testified to are not sufficient to show a delivery. We refuse to instruct you in that way, reserving, however, the question of law so that we can consider it hereafter, if we see on argument that we are wrong, and reserving the right to enter judgment in favor of the defendant notwithstanding a verdict in favor of the plaintiff, if you should so find. [But for the present we instruct you that it will be for you to say whether or not this explanation of why the goods were not shipped and delivered, that is, why a manual delivery was not made of them by Mr. Hunter to the New York corporation in New York — whether that has or not been reasonably explained by showing that he needed these goods to finish his contracts here, and while he was using the tools here recognized the title of the vendee by contracting and actually paying for their use at so much a month while he had them. Now Mr. Hunter has testified to what was done and that question I say turns upon his credibility. If you believe what he states is true then it appears to the court that there would be no actual or legal fraud in the matter and these tools would appear to be the property of the Hunter Construction Company and not the property of Mr. N. C. Hunter, and therefore they ought not to have been levied upon and your verdict in that case would be for the plaintiff, the Hunter Construction Company. On the other hand, if you do not believe what Mr. Hunter says and that those goods levied upon were not included in the bill of sale, and that he had not leased them, why then the fact that they remained here in his possession, of course, would render any contract that he may have made for their sale null and void; if there was no delivery either actual or constructive, and especially if these goods were not included in the ones that are named in the schedule attached to the bill of sale, why then your verdict should be for the defendant.] [7]

      January 2, 1912:
    Verdict and judgment for plaintiff. Defendant appealed.

      Errors assigned amongst others were (6) in refusing judgment for defendant n. o. v. and (7) portion of charge as above, quoting it.

      John Scott Wendt, with him William S. Moorhead and Donnans, Brownson & Miller, for appellant.
    It is not necessary for an existing creditor of a vendor of personal property who has retained possession thereof to prove actual fraud in order to avoid the sale: Stephens v. Gifford, 137 Pa. 219; Janney v. Howard, 150 Pa. 339; Lehr v. Brodbeck, 192 Pa. 535.
    From the evidence in this case the court should have held as a matter of law that there was not a sufficient delivery of the property to divest the rights of an existing creditor of the vendor: Clow v. Woods, 5 S. & R. 275; Hugus v. Robinson, 24 Pa. 9; Stoddardt v. Price, 143 Pa. 537; Streeper v. Eckart, 2 Wharton (Pa.), 302; Betz v. Franz, 10 Sadler, 329; Chase v. Ralston, 30 Pa. 539; Miller v. Garman, 69 Pa. 134; Garman v. Cooper, 72 Pa. 32; White v. Gunn, 205 Pa. 229; Barr v. Reitz, 53 Pa. 256; Weller v. Meeder, 2 Pa. Superior Ct. 488; Kendig v. Binkley, 10 Pa. Superior Ct. 463.

      Norman E. Ciarle, with him Winfield Mcllvaine, for appellee.
    Where the subject of the sale is not reasonably capable of actual delivery then a constructive delivery is sufficient: Garretson v. Hackenberg, 144 Pa. 107; Evans v. Scott, 89 Pa. 136; Crawford v. Davis, 99 Pa. 576; Bell v. McCloskey, 155 Pa. 319; Renninger v. Spatz, 128 Pa. 524; Hugus v. Robinson, 24 Pa. 9; Keystone Watch Case Co. v. Nat. Bank, 194 Pa. 535.
   Opinion by

Mr. Justice Brown,

This is a feigned issue under the sheriff’s interpleader act to determine the title to certain personal property seized on an execution in which the appellant was the plaintiff and N. C. Hunter, the defendant. The facts in the case are undisputed, and nothing could be clearer from a mere recital of them than that heed must be given to appellant’s complaint of the refusal of the trial judge to direct a verdict in his favor.

For fifteen or twenty years prior to 1910 N. C. Hunter had been a contractor engaged in constructing railroads and highways in the county of Washington, this state. In August and September, 1908, he borrowed money from the Cosmopolitan National Bank of Pittsburg, and in July, 1910, Robert Lyons, the appellant, who had been appointed its receiver, instituted suit to collect the indebtedness due by Hunter from 1908, and, having obtained a judgment against him, issued an execution, by virtue of which the sheriff of Washington county seized a steam roller, stone crusher, dump wagons, etc., constituting an equipment then being used by Hunter in the construction of a highway near Eighty-four, in said county. About November 17, 1909, there was organized under the laws of the state of New York a corporation known as the Hunter Construction Company, and on the twenty-fourth of that month Hunter, according to his testimony as a witness for the plaintiff, executed and delivered to that corporation a bill of sale of all his road-making equipment, including the property in controversy, for which there was issued to him the entire capital stock of the corporation. At the same time he assigned to it a number of contracts, not including, however, the one for the construction of the road near Eighty-four, on which the machinery levied upon was being used. Some of the property included in the bill of sale was shipped to the Hunter Construction Company in New York, but none used in building the highway at Eighty-four was shipped to it there or elser where. It remained in Washington county, in the possession of Hunter, until it was levied upon. It had continued in his possession after the bill of sale was executed and delivered, just as before, and, at the time it was seized, was being used by Hunter in carrying out a contract in which he was individually alone interested. The Hunter Construction Company was never registered in this state and never did work of any kind here. On the trial it was admitted that Hunter had not delivered to his construction company actual possession of the property taken in execution by the sheriff. He further testified that during the spring of 1910 he, as president of the Hunter Construction Company, had entered into an oral agreement with himself, as an individual, whereby he had leased to himself the roadmaking equipment which was being used by him in fulfilling his individual contract, and paid rent to the company for the use of it at the rate of two per cent a month on its appraised value. When he delivered the bill of sale to the Hunter Construction Company the road rollers, sprinklers, dump wagons, etc., were marked with the name “N. C. Hunter.” There was no change in this marking, and the name of N. C. Hunter was still on these articles at the time of the levy. The name of the Hunter Construction Company did not appear on any of the equipment at Eighty-four.

After the admission by the appellee that there had not been an actual delivery of possession to it of the personal property seized by the sheriff as the property of N. C. Hunter, his sale to the company was fraudulent in law, if not in fact, and, therefore, void as to the execution creditor to whom he was indebted at the time of the sale to the company, unless there was such a constructive delivery to the vendee as would take the sale out of the rule requiring actual delivery. The property admittedly belonged to N. C. Hunter prior to his sale of it to the construction company, and, having been found by the sheriff in his apparently continued and uninterrupted possession and use, the burden was upon the appellee of proving by sufficient evidence the constructive delivery to it upon which it stands to sustain its title: Barr v. Reitz, 53 Pa. 256.

In passing upon the question of the sufficiency of constructive delivery in any case, the character of the property, the use to be made of it, the nature and object of the transaction, the position of the parties and the usages of trade or business must be taken into consideration: Renninger v. Spatz, 128 Pa. 524; McCullough v. Willey, 200 Pa. 168; White v. Gunn, 205 Pa. 229; and, when constructive delivery of possession is relied upon as sufficient under the rule requiring change of possession from the vendor to the vendee, such delivery will not be held insufficient as a matter of law, if the purchase was in good faith and for a valuable consideration, followed by acts intended to transfer the possession as well as the title, and the vendee’ assumes such control of the property as to reasonably indicate a change of ownership: Crawford v. Davis, 99 Pa. 576; Garretson v. Hackenberg, 144 Pa. 107. “In such cases it is only necessary that the vendee should assume the control of the subject so as reasonably to indicate to all concerned the fact of the change of ownership. Where nothing of the kind has taken place, it is the duty of the court to pronounce a mere symbolical delivery to be insufficient; but where there is evidence of such assumption of control, it is for the jury to say whether it was bona fide or merely colorable, and whether it was enough to give notice to the world. The question in such case is, Did the vendee do all that he might reasonably be expected to do in the case of a real and honest sale?” McKibbin v. Martin, 64 Pa. 352. What was done by the appellee, as Hunter’s vendee, to indicate to his creditors or to anyone else that it had assumed control of the personal property found by the sheriff in the continued possession of Hunter, its vendor? It was not even shown that anyone outside of Hunter, Hibbard, his attorney, and his construction company ever knew he had made a sale to it; and it cannot be pretended that the company ever did anything in this state or out of it to indicate to anyone that it had assumed control of the property which is the subject of this interpleader. Though the rigor of the rule as laid down in Clow v. Woods, 5 S. & R. 275, has been somewhat relaxed, no one of the innumerable cases which followed and reaffirmed it — aptly termed by Mr. Justice Sharswood to be “a beadroll of subsequent decisions, which it would be a mere affectation of learning to cite”— justified the court below in permitting the jury to find, under the undisputed facts in the case, that there had been a constructive delivery of the property by Hunter. If, as was said in McKibbin v. Martin, it is for a jury to say whether the sale was bona fide or merely colorable, and whether it was enough to give notice to the world, a jury must so find upon evidence, and here there was not even a scintilla that anything had ever been said or done by Hunter in his individual capacity, or as president of the construction company, or by that company through anyone else, to give notice of the sale, directly or indirectly, to anyone within this state. It was, therefore, the duty of the court to have pronounced the delivery insufficient to sustain the sale: McKibbin v. Martin, supra. It is not for us to indicate what might have been done to show that the appellee had assumed control of the property. Numerous cases might be cited to show what was done to sustain a constructive delivery, as, for instance, in Haynes v. Hunsicker, 26 Pa. 58, the vendee wrote his name upon the lumber; in Chase v. Ralston, 30 Pa. 539, the purchasers stamped their initials on the timber; in )McKibbin v. Martin the purchaser advertised the change of ownership and printed his name on the bills and letterheads; in Barr v. Boyles, 96 Pa. 31, the keys of the establishment were delivered; in McCullough v. Willey, 200 Pa. 168, tags were attached to the machinery; and in Riggs v. Bair, 213 Pa. 402, on the front bag of each pile of coffee there was a tag with the purchaser’s name upon it. In this case there was nothing shown from which the jury could have found that there was visible indication of any change whatever in the ownership of the property. Everything went on under the control of Hunter after the sale, just as it had gone on before. Nothing appeared in or about the work to even indicate the existence of the appellee, while, on the other hand, there was every indication, including the unchanged stamp of “N. C. Hunter” upon the road rollers, sprinklers, dump wagons, etc., that there had been no change of ownership. It is useless to further pursue this discussion. The manifest duty of the court was to have affirmed defendant’s first point.

The judgment is reversed and is now entered here for the defendant in the issue, and it is further ordered that he recover his costs.