The opinion of the court was delivered, January 3d 1871, by
Agnew, J.
— By an agreement of March 7th 1866 Fullerton Parker sold and conveyed to James P. Tanner, his heirs and assigns, all the oil and mineral rights and privileges to, on, in and under a certain parcel of land, for the consideration of $500, reserving one-fourth of all the oil to be obtained, and binding *303Tanner, under the penalty of a forfeiture of the lease, to commence operations within one year, and prosecute the same with reasonable diligence — the lease to continue for a term of fifty years. Tanner paid the consideration, and began operations in a few weeks after the date of the lease, and sunk an oil-well to the depth of 830 feet, expending for fixtures, engine, tools, labor, &c., about $4000. The well was pumped but seemed to be unsuccessful. This was done within the first year. Tanner became embarrassed and operations ceased. The engine, fixtures, &c., were removed by Homer (who drilled the well) in the spring of 1867. The premises then remained without further operations by Tanner until the 25th of June 1868, when Fullerton Parker, believing Tanner’s lease forfeited, leased the same premises to the Messrs. Earns & Co., parties to this suit. They entered into possession, drilled the well 30 feet deeper and obtained oil. Tanner was stricken with paralysis about a week after the second lease, and remained unfit for business till he died on the 13th of April 1869. This ejectmefit was brought by Tanner a few weeks before his death against Fullerton Parker and Messrs. Earns & Co., his lessees. After Tanner’s death a sheriff’s sale of his interest in the lease took place, and it was bought by Mrs. Frances E. Tanner, who was then substituted as plaintiff in this action. The main question on the trial was the alleged abandonment of the lease by Tanner and its forfeiture, on the ground that he had ceased to prosecute operations with diligence. The plaintiff, among other things, proved a conversation between Tanner and Parker in December 1867, to show that Tanner had not abandoned. On part of the defence Fullerton Parker was called as a witness to rebut the plaintiff’s case and was objected to, and was rejected by the court as incompetent. This is the chief question in the cause, and involves the true meaning of the 1st section of the Act of 15th April 1869, allowing parties interested to be witnesses. The act reads thus: “ No interest or policy of law shall exclude a party or person from being a witness in any civil proceeding: Provided, This act shall not alter the law as now declared and practised in the courts of this Commonwealth, so as to allow husband and wife to testify against each other, nor counsel to testify to the confidential communication of his client; and this act shall not apply to actions by or against executors, administrators or guardians, nor where the assignor of the thing or contract in action may be dead, excepting in issues and inquiries devisavit vel non, and others respecting the right of such deceased owner between parties claiming such right by devolution on the death of such owner.” The judge below held that Fullerton Parker was incompetent to testify under that clause of the proviso which declared that the act shall not apply “ where the assignor of the thing or contract in action may be dead.” This clause *304contemplates two things; the first, that the deceased party shall be the assignor of a thing or contract; the second, that this thing or contract shall be the subject of the action. In a precise sense then James P. Tanner, the deceased lessee of the premises, is not the assignor of Prances E. Tanner, for he was dead before his title passed ; and it passed by a sheriff’s sale by act of the law. He therefore did not assign. Again, the thing in action is the right to the possession of the premises leased, this being an action of ejectment, and the contract under which this right arises is the lease from Parker to Tanner. In that lease Parker is the lessor, and may be said to be the assignor to Tanner of the thing in action, and Parker is alive. As assignor to Tanner, he seems literally not to be within the prohibition of the proviso. Rut is this the true meaning of the proviso ? We think not. In giving to this law a proper interpretation we must recur to the evil intended to be remedied. Post v. Avery, 5 W. & S. 509, overturning Steele v. Phœnix Ins. Co., 3 Binn. 306, established the rule that a party making an assignment of his interest in the subject of the suit, to enable himself to testify for his assignee, is incompetent as a witness. This was confined to assignments termed merely colorable; but it led the way to a vast train of decisions, some of which went beyond the original case.
Thus in Graves v. Griffin, 7 Harris 176, a party to a contract, not the note in suit, and he not a party to the action, assigned his interest in the contract and was then offered by the defendants to prove that the plaintiffs had agreed that the note in suit should be applied in payment of his contract. It was held that by the doctrine of Post v. Avery and its successors, he was incompetent. Woodward, J., saying, “ though not a party to the record, he should have been excluded, whether his assignment was real or fictitious.” So it was held in Irwin v. Shumaker, 4 Barr 199, that a co-defendant who was a certificated bankrupt as to whom a nolle prosequi was entered, and who executed a release of any surplus to his assignees in bankruptcy, was incompetent on the score of policy. Other eases lie in these lines of decision, and hence it was said in Cambria Iron Co. v. Tomb, 12 Wright 394, that a party to the record is incompetent as a witness on the ground of policy has become too firmly fixed to be changed as a rule of practice, except by legislation. Many attempts were made to apply this remedy, but all failed until the Act of 1869 was passed. That act laid the axe to the root of the evil, by declaring that no interest or policy of law shall exclude a party or person from being a witness in any civil proceeding. This is sweeping language, and was intended to reach every imaginable case. But the legislature knew that there were some exceptions that must be allowed, otherwise the law could not stand, for it would run counter to interests so sacred and a policy so clear, that public *305sentiment would not tolerate their sacrifice. The proviso therefore followed, which was evidently the product of two thoughts, one that there were certain confidential relations to be protected against compulsory disclosure, the other that there were certain cases of inequality where it would be unjust to open a door to one party, that was closed by necessity against the other. Hence the proviso declared that husband and wife should not be permitted to testify against each other; nor counsel to testify to the confidential communications of his client. This belongs to the first thought, the confidential relation. It then declared that the act should not apply to actions by or against executors, administrators or guardians, nor where the assignor of the thing or contract in action may be dead. This evidently came from the second thought, as to the inequality of the parties. Where one of two parties to a transaction is dead, the survivor and the party representing the deceased party, stand on an unequal footing as to a knowledge of the transaction occurring in the lifetime of the deceased. The enacting clause had opened the lips of all parties, but when death came it closed the lips of one, and evenhanded justice required the mouths of both to be sealed. In regard to one class we easily comprehend that a survivor ought not to be permitted to testify against the executor or administrator of his adversary, but as to the other class in the same clause, we do not so readily perceive what assignor it is, who being dead the proviso closes the mouth of the survivor. Evidently it is the true purpose of the proviso to close the mouth of him who is adversary to the deceased assignor. Here the current of former decisions tends to elucidate the meaning of the legislature. If, therefore, the holder of a note, bond or other contract should assign his interest to another, he was held to be incompetent to support the claim by his testimony against the opposite party in the instrument or contract. Hence although he had been stripped of all apparent interest by his assignment or by the operation of the bankrupt law, yet he could not testify against the adverse party. One of the reasons given by Woodward, J., in Graves v. Griffin, supra, is that whilst one of the parties to a contract in litigation is denied the privilege of testifying, the policy of the law is to close the mouth of the other, and this whether it relates to a claim of a plaintiff, or a set-off of a defendant. The true spirit of the proviso then seems to be that when a party to a thing or contract in action is dead, and his rights have passed, either by his own act or by that of the law, to another who represents his interest in the subject of controversy, the surviving party to that subject shall not testify to matters occurring in the lifetime of the adverse party, whose lips are now closed.
This intent is gathered also from the coupling of the provision for the assignor who is dead, with the provision for the case of an *306executor or administrator, evidencing that 'the legislature looked upon both cases as precisely alike. Another clue to the meaning is found in the exception to the proviso found in the last clause; excepting all “ issues and inquiries of devisavit vel non and others respecting the right of such deceased owner between parties claiming such right by devolution on the death of such owner.” Thus parties claiming under the same decedent, by the mere operation of the law devolving the estate upon them, as by descent or succession, are exempted from the prohibition of the proviso, in contrast to those who stand in adversary relation by reason of a subject of contract, one side of which has come from one of the original parties to the disputed subject.
The true intent of the legislature is further developed by the Act of 9th April 1870, declaring “ that in all actions or civil proceedings in any of the courts of this Commonwealth, brought by or against executors, administrators or guardians, or in actions where the assignor of the thing or contract in action may be dead, no interest or policy of law shall exclude any party to the record from testifying to matters occurring since the death of the person whose estate, through a legal representative, is a party to the record.” Here the terms “since the death of the person whose estate through a legal representative is a party to the record,” are striking, for both classes are linked together in the same clause, and the terms through a legal representative, applied to the case of a deceased assignor as well as to the case of an executor or administrator, evincing the intention of the legislature not to confine the term assignor to one who has by his own act merely transferred his title, but rather to treat the correlative term assignee just as the term assignees is oftentimes used, in a broad sense, including any one taking title by a sheriff’s sale, an Orphans’ Court sale, or even a devise under a will. Thus, in the present case, though Tanner died without making an assignment himself, yet he and Parker were the parties to the contest arising upon the lease, a contest now between Mrs. Tanner and Earns & Co. Mrs. Tanner now represents that side of the controversy which her deceased husband, and predecessor in the title, once represented. -Parker is the survivor of the parties to that controversy, and liable to his second lessees on his covenants in his lease, as well as entitled to one-eighth of the oil to be derived from it. If he be admitted to testify to matters occurring in the lifetime of Tanner, between him and Tanner, it is obvious the very case in the view of the legislature would arise and he would hold a position of advantage which would be unfair to Mrs. Tanner, who knows nothing of the transactions between them, and. must therefore suffer from any one-sided narration he might give. We think the court committed no error in excluding Parker as a witness.'
*307The remaining assignments of error need no extended notice. The court properly rejected Homer’s declarations, so far as they were offered to impute to Tanner an intention to abandon the lease. Homer was only employed to operate for oil, and no authority beyond this was shown. Having drilled 830 feet, and pumped unsuccessfully, he might well suppose the prospect of finding oil bad, and quit work and discharge the hands. But this gave him no authority to commit Tanner to an abandonment of his lease. Tanner had paid $500 for the lease, and though not willing to operate further himself, and might even sell his engine, derrick and tools, and yet be desirous of selling out to assigns, as the terms of the lease permitted, or of operating through an under tenant, who would supply the machinery, &c. Having, expended $4500 in the undertaking, it is not very probable he would abandon the lease voluntarily and lose everything. Now without very clear authority to Homer to commit him to such an abandonment, the evidence of Homer’s declarations would be clearly incompetent.
In regard to the forfeiture, as the work had been begun promptly and prosecuted diligently, at great expense, to the depth of 830 feet, and as the whole question as put to the jury was one of due diligence after that, and depended on a variety of circumstances, it was clearly one of fact for the jury. Abandonment of the lease was a question of intention, and was to be determined only on an investigation of facts. The court was right, therefore, in submitting it to them.
The other question, whether ejectment was the proper remedy, was placed in the argument upon the ground that the right conferred by the lease was incorporeal, and not the subject of this action. But the question as to the nature of the interest vested by the lease is not necessary to the decision of the right to maintain ejectment in this case. This is an action brought for wrongful ouster from actual possession, as it is alleged.
By the terms of the lease Tanner was entitled not only to the right of boring for oil and mining, but “ to hold, occupy, use and enjoy with this right, and also the right of way, the rights and privileges for the purpose of prospecting, boring, mining, drifting or otherwise operating for oil, coal and other minerals,” and with the further right “ to erect and maintain all buildings and machinery necessary and convenient therefor, and to renew the same at pleasure.” Now in order to bore for oil and to pump and take the oil, it is well understood that the party must have the actual possession of so much land as is necessary for his engine-house, derrick, tanks and machinery, and to operate them conveniently ; and this possession must continue so long as the party draws oil from the well. The evidence is clear that Tanner had gone into actual possession under the lease, and had been operat*308ing there. If his lease had not been forfeited, it is clear that the entry on him by Parker’s second lessees was wrongful. It was in just such a case, and under a writing that was clearly nothing but a license, it was stated by Justice Strong as the opinion of the court in Dark v. Johnston, 5 P. F. Smith 170, that an entry upon the tenant was unlawful, and we should feel ourselves justified in sustaining an ejectment to restore a possession unlawfully taken away. The authorities cited by the defendant in error lead in the same direction. The possession taken under the lease was actual though qualified, but still essential to prosecute the purposes of the lease, and when given to effectuate even incorporeal rights is still a substantial possession, and therefore the proper subject of this remedy by ejectment; otherwise a party might be actually ejected from a valuable oil-well or mine, with no remedy for the injury but the unsatisfactory valuation of a jury of his damages for lights prospective as well as present. Possession to a qualified extent is essential to the enjoyment of his rights, and the law therefore must restore him to his actual place on the land, and this can be done only by an ejectment.
Upon the whole case finding no error, the judgment is affirmed.