Lazarus v. Lehigh & Wilkes-Barre Coal Co.

228 Pa. 532 | Pa. | 1910

Opinion by

Mr. Justice Potter,

Counsel for appellant here contends that the court below erred in entering judgment against it for want of a sufficient affidavit of defense. The action was assumpsit, to recover the value of coal mined from a small tract of land, containing some two acres, 143 perches, forming part of a much larger tract of coal, operated under a lease from plaintiff’s predecessors in title, to the assignors of the defendant company. The statement of claim filed by plaintiffs sets forth the lease in question, the rights of the plaintiffs thereunder, the rights and liabilities of the defendant company, the proviso for the payment of royalty, the possession by the defendant of the devised tract under the lease, its mining of coal therefrom, and its refusal to account to plaintiffs, and pay for the coal mined from the said small portion, containing two acres, 143 perches. The amended statement of claim shows a chain of title from the commonwealth down to the plaintiffs. The defendant company in its affidavit of defense admits the existence of the lease, and its possession thereunder, but sets [Forth that the small tract in question did not belong to the plaintiffs, or the original lessors at the date of the lease, or at any time thereafter. It further claims to have purchased the small tract from other parties, after the date of the lease, and denies that it obtained any right to that tract, under the lease. The affidavit of defense does not, however, show any chain of title in the defendant, leading out of the commonwealth, and there is no averment as to how the title which it claims to have purchased became vested in its grantors. The affidavit is therefore deficient in this respect. It is not enough for the defendant to make a bald assertion that it has a title in fee simple to the land in dispute, without setting forth the chain of title upon which it relies. Having admittedly taken possession under the lease of the larger tract of land, of which the portion in dispute seems to have been a part, the burden was upon the defendant to show wherein the title of plaintiffs to the small tract was deficient. Neither eviction nor ouster from the land in question was averred. It is suggested that the terms of the coal lease amounted to a sale of the coal in place, and put the parties in the position of vendor and vendee. But whether the defendant be regarded as tenant or as vendee, it cannot use the possession it acquired under the lease, to the injury of those from whom it received it. We agree with the view of the court below, that the averments of the affidavits of defense are not sufficiently specific, and that they do not set forth facts which, if proven, would constitute a defense; and that the averments are in effect mere general denials of indebtedness.

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