26 Pa. Super. 203 | Pa. Super. Ct. | 1904
Opinion by
In their first .statement the plaintiffs declared that the defendant broke and entered their close, “ that is to say, a certain coal mine or vein of coal,” described by metes and bounds, and mined and removed therefrom 3,500 tons of coal of the value of $1,750, and converted the same to his use, without the consent of the owners, the defendant then1 and there well knowing that the close and the coal therein were not his property, but that the coal was the exclusive property of the plaintiffs. The statement concluded as follows : “ And other wrongs to the said plaintiffs then and there did, contrary to the form
After the cause had been arbitrated and an award made in the plaintiffs’ favor, from which the defendant had appealed, the plaintiffs by leave of court filed an amended statement of claim, and still later a second amended statement. As to the coal mined, removed and converted the latter statement concluded as follows : “ And the plaintiffs aver that this was done contrary to the act of assembly approved May 8,1876, P. L. 142, and that therefore it is to the damage of the plaintiffs treble the value of the coal so dug, mined and converted to the use of the said defendant, to wit: the sum of five thousand two hundred and fifty dollars.” The other averments of this statement, so far as they concern the locus in quo, the quantity and value of the coal mined, removed and converted, and the essentials to a recovery of treble damages under the act of 1876, do not differ substantially from those of the first statement, and they plainly relate to the same trespass. Nor was the cause of action charged by the above quoted clause in the second amended statement relative to treble damages; the purpose and effect of this change in the mode of stating the cause of action were simply to make clear what was manifestly intended, but, perhaps, was defectively stated, in the first statement, namely, that the plaintiffs claimed to recover, by virtue of the provisions of the act of 1876, three times the value of the coal mined, removed and converted to his use by the defendant. The case of Fairchild v. Dunbar Furnace Co., 128 Pa. 485, upon which the appellant’s counsel confidently rely, is plainly distinguishable from the case at bar upon two grounds: First, because the original declaration was for a trespass at common law, and that alone, and contained no claim, direct or inferential, of damages under the statute; secondly, because the amendment, whereby a right to recover treble damages under the statute was asserted, was not made within six years from the date when the right accrued. .
But in the second amended statement there is an additional allegation that the defendant “ did so mine the coal taken out as aforesaid as to injure and render less valuable the vein or veins of coal from which he mined, and to cause the plaintiffs
As to the suggestion that a claim to recover three times the value of the coal removed and converted to the defendant’s use, and a claim to recover single damages for the injury to the mine caused by negligence in mining the coal so removed and converted, cannot be joined in one action, even though both grew out of the same trespass; we refer to Welsh v. Anthony, 16 Pa. 254, and Fairchild v. Dunbar Furnace Co., supra, where as we read the opinions, a contrary doctrine was held. True it was said in the latter case that “ whilst, perhaps, they may be joined in one action, there can be but one recovery.” But we are not now discussing the measure of damages applicable to the case under the evidence adduced on the trial. All that we decide in overruling the first three assignments is that no error was committed in permitting the second amended statement to be filed or in overruling the demurrer thereto.
In support of their allegation of ownership the plaintiffs of
In December, 1855, Michael Meylert and Thos. W. Clymer, who then held the paper title to which we have referred, contracted in writing to sell the lot in question to James Gallagher; in 1858, Clymer conveyed his interest in the land to Meylert, and in 1866, Meylert deeded the land to George D. Jackson, the devisor, under whose will the plaintiffs claimed title at the time of the trespass. The defendant objected to the admission of the Meylert deed as irrelevant, immaterial and incompetent “ for reasons that will hereafter appear in the trial of the case.” This was not a valid objection. The evidence being relevant and competent at the time it was offered no error was committed in admitting it. Therefore the seventh assignment is overruled.
In 1858 the lot was assessed as seated land in the name of James Gallagher and so returned and sold for the unpaid taxes of 1858 to George D. Jackson on June 11, 1860. It was held in Hathaway v. Elsbree, 54 Pa. 498, Preswick v. McGrew, 107 Pa. 43, and Hollaway v. Jones, 143 Pa. 564, that á sale of land for taxes under the forty-first section of the act of April 29, 1844, P. L. 486, as seated, which in fact was unseated at the time of the assessment, is void and will pass no title to the purchaser.
George D. Jackson died in 1879, testate. It is conceded by both parties that the devise'of his real estate to his executors with directions to sell worked a conversion. For the purpose of showing that there was a reconversion, and therefore that the trustees of the parties beneficially interested under the will had a right to sue, the plaintiffs offered in evidence the deed executed in 1899 which is recited in the sixth assignment of error. Three of the five legatees, and Bernice W. Jackson, the widow and surviving executrix under the will — it being recited that George C. Jackson and Willie W. -Jackson, the two other legatees, had conveyed their shares to her — were grantors in the deed, and Willie W. Jackson was one of the grantees to whom the deed was made in trust for the parties beneficially interested in the real estate under the will. The declared reason for making the deed was because these persons were “ desirous of retaining unto themselves, their heirs and assigns, the remaining real estate of said decedent uncon
In April, 1860, by virtue of a confession contained in the Gallagher contract above referred to George D. Jackson, the assignor of the vendors, entered judgment against Gallagher for the balance of purchase money, and on the same day issued execution. The sheriff returned that he levied upon the land and sold the same “to George D. Jackson, for seventy dollars, he being the highest and best bidder.” It also appears that Jackson paid the costs, and gave a receipt on May 29th, for the balance of his bid to apply on the judgment. The defendant having put the record of these proceedings in evidence then offered a deed from the sheriff to J. Jackson & Sons dated, and acknowledged in open court in September, 1860, in which, after describing the lot by metes and bounds precisely as it was described in the return to the writ, it was further stated that it was “ the same lot of land and premises sold by the said sheriff on May 29, 1860, as the property of James Gallagher, by virtue of a certain writ of fieri facias bearing test,” etc. Here follows a precise description of the writ above referred to. In view of the recitals there is no room for reasonable doubt that, in the intent of the sheriff and the court, the deed was executed, acknowledged and delived in consummation of the sale upon that writ. It is to be noticed further that the deed was produced on the trial by the plaintiffs pursuant to notice and subpoena. In connection therewith and the record of its acknowledgment, the defendant offered to show that at the time of the purchase George D. Jackson was a member of the firm of J. Jackson & Sons. These offers were rejected upon the ground that in view of the return the sheriff had no authority to make the deed to them. The learned judge said: “ I do not know of any authority for the execution of a deed by the sheriff except what is contained in the return of sale.” In rejecting the deed upon this ground Ave think he fell into error. “ In numerous cases it has been held by this court that the acknowledgment of a deed is a judicial act, and concludes all mere irregularities, however gross, in the process and sale. After acknoAvledgment, the validity of the title acquired by
In the instructions complained of in the tenth assignment, after quoting the tenth section of the third article of the Act of June 2, 1891, P. L. 176, relative to barrier pillars between adjoining coal properties, and the eighth section of article seventeen of the same act, relative to the right of action “ for any injury to person or property occasioned by any violation of this act or any failure to comply with its provisions,” and after stating that the plaintiffs claimed to recover under this section for a violation of the provisions of the tenth section, the learned judge more specifically defined the claim as follows : “Now it is claimed on the part -of the plaintiffs that in mining this coal from the Gunton lands, or the lands adjoining those of the plaintiffs, that the defendant did not regard the provisions of the act of assembly and did not leave a pillar of coal or barrier wall upon the Gunton side of this line sufficient to protect the men in the adjoining property, or the mine of the plaintiffs in case of its being opened and worked.” The eleventh, thirteenth and fourteenth assignments allege error in the instructions relative • to the measure of damages in the event of a finding by the jury that the claim was well founded. It is argued that it was error to submit this claim to the jury for four reasons: first, because Sullivan county was not within any of the inspection districts created by the act of 1891, and was therefore not subject to the act; second, because the act applies only to collieries and mines where more than ten men are employed, and there was no proof that the defendant’s colliery belonged to this class; third, because the statute only gives a right of action for the “ direct damages,” the. party complaining “ may have sustained ” and there was no proof that the plaintiffs had sustained any of that character; fourth, because their statement was not broad enough to include this claim. The last objection is well taken. As defined in the excerpt from the charge above quoted the' claim is based on the alleged failure of the defendant to regard the provisions of the act of assembly in mining the coal on his lands, the specific violation of the statute being that he did not leave a pillar of
In the view we take of the case it seems unnecessary to prolong this opinion by a discussion of the question raised by the point quoted in the sixteenth assignment. The case does not turn on that question. We remark, however, that we are not to be understood as deciding that the learned judge erred in his conclusion that “ the intention of the act of 1891 was to include all.the anthracite region.”
We find no substantial error in any of the rulings upon evidence or instructions to the jury complained of excepting those we have specially noticed. The court was clearly right in refusing binding instructions for the defendant.
Judgment reversed and venire facias de novo awarded.