Cambria Iron Co. v. Leidy, 226 Pa. 122

Cambria Iron Co. v. Leidy

226 Pa. 122 | Pa. | 1910

Opinion by

Mr. Justice Mestrezat,

The learned judge of the court below should have permitted the defendants to pursue the remedy suggested in their petition, and ought not to have compelled them to proceed under another act of assembly. The defendants presented their petition to the court averring that they were in possession of and had title to a certain tract of land in East Taylor township, Cambria county; that the plaintiffs claimed an interest in and title to the coal in and under the premises; and prayed for a rule upon the plaintiffs to bring an action of ejectment for said coal within six months from the service of the rule or show cause why the same could not be brought, as provided in the act approved May 25, 1893, P. L. 131. That act and the Act of April 16,1903, P. L. 212, 2 Purd. (13th ed.) 1304, permit the party in possession claiming title to the premises to obtain a rule on any adverse claimant to bring an action of eject*129ment within six months as prayed for in the petition presented to the court below. This legislation provides a speedy and complete remedy for one in possession of land claiming title thereto to obtain a final judgment as to the validity of his title against an adverse claimant. It was therefore an appropriate and adequate remedy to determine the rights of the parties to this proceeding to the premises in dispute, and the rule should have been awarded as prayed for. We cannot see any occasion for the court declining the prayer of the petition, and of its own motion awarding an issue under the Act of June 10, 1893, P. L. 415, 1 Purd. (13th ed.) 817.. The plaintiffs’ claim title to the coal underlying the premises by virtue of an optional agreement which they allege had been accepted and vested the title in them. The defendants were in possession, claiming title, and the plaintiffs had “an apparent interest in or title to the real estate,” and therefore the defendants had a right under the act of April 16, 1903, to have a rule upon the plaintiffs to bring an action of ejectment to determine the title to the coal.

There was no objection by either party to the action of the court in substituting a proceeding under the act of June 10, 1893, for proceeding under the act of April 16, 1903, and in awarding an issue “to settle and determine their respective rights and title in and to said lands.” The issues awarded by the court and to be determined by the jury were: First, did the plaintiffs avail themselves of their option to purchase the lands described in the petition and give notice of their acceptance of the terms of their optional agreement to defendants in the manner and within the time prescribed in the option? Second, if that fact be found in favor of the plaintiffs, did they afterwards abandon the right to a conveyance of the coal in question? The jury found both issues in favor of the defendants and the court entered judgment upon the verdict as required by the act of assembly.

Both of these issues were for the jury under the evidence submitted. It is unnecessary to discuss the numerous assignments of error filed in the case. It was not pretended that a written notice accepting the option was served on *130Howard. Leidy, one of the defendants, as required by the optional agreement. The other two defendants deny positively that a written notice accepting the option was served upon them by the plaintiffs. There was no waiver by either of the defendants of the stipulation in the contract requiring service of written notice of the acceptance of the option upon him. That question is not in the case. The jury were justified under the evidence in finding that the plaintiffs had not caused a written notice to be served upon the defendants of the acceptance of the optional agreement.

The question of abandonment was likewise one for the jury under all the evidence, and the learned judge submitted it in a fair and impartial charge. For nearly seven years the plaintiffs took no action towards completing their title and obtaining possession of the coal in dispute. During all those years the defendants retained possession, and necessarily paid the taxes, and claimed title. So far as the evidence discloses, the plaintiffs made no effort to assert their ownership. They made no demand on the defendants for the deed, nor, so far as the evidence shows, did they have their engineers determine the quantity of the acreage as required by the agreement so that the deed could be made. The optional agreement was executed January 31, 1900, under which the plaintiffs were to give notice of their acceptance in writing on or before April 15, 1900. Subsequent to the latter date the plaintiffs took no action whatever in regard to the alleged purchase until they were brought into court in August, 1906, by the rule obtained by the defendants to bring their action of ejectment. In the meantime defendants had given an option on the coal to another party. We think the evidence was sufficient to go to the jury on the question of abandonment.

The assignments of error are overruled and the judgment is affirmed.