246 Pa. 178 | Pa. | 1914
Lead Opinion
Opinion by
This is an action of assumpsit brought to recover royalties for coal mined upon two small pieces of land in Hanover Township, Luzerne County, one containing two acres and one hundred and forty-three perches, the other containing about two and three-tenths acres. The court made absolute the rule for judgment for want of a sufficient affidavit of defense as to the royalties due on the coal mined on the two and three-tenths acres. This appeal is taken by the defendant from that judgment.
By an agreement dated April 13, 1871, the plaintiffs’ predecessors in title demised and leased to the defendant’s predecessors in title all the anthracite coal under four contiguous tracts of land in Hanover Township, Luzerne County, containing two hundred and twenty-five acres and two perches, for and during the term of ninety-nine years. The lessees covenanted to pay to the lessors twenty-five cents per ton of the merchantable coal mined upon the leased premises which would pass over a screen of a certain size mesh. The rent was to be paid quarterly in each year, and during the fifth and subsequent years of the lease a minimum annual rental of $14,000 was to be paid, whether the coal mined was sufficient, at the rate of twenty-five cents per ton, to make up the rentals or not. We held in Lazarus’s Est., 145 Pa. 1, that the agreement in this case, while in form a lease, constituted a sale of the coal conditioned upon its being removed within the period specified, and that the grantee had the absolute and exclusive right, under the conveyance, to mine all the available coal contained in the tract described.
The statement of claim avers, inter alia, the making of the lease of the coal under the tract of two hundred and twenty-five acres and two perches; the provision for the payment of the royalty; the inclusion in the
The sum claimed in this action is a part of the purchase money of the coal sold by the plaintiffs to the defendant It is familiar law that under certain circumstances a purchaser may successfully defend against the payment of purchase-money on the ground of a defective title. Here, however, the defendant has not averred facts which bring it within the operation of the rule. The case as presented on the statement and the affidavit of defense is simply the purchase by the defendant’s predecessors in title of the two hundred and twenty-five acres of coal with the knowledge of a defective title to the canal strip, without any fraud, accident or mistake and without the purchaser taking a covenant against the defect. In addition to the records disclosing the title of the defendant’s predecessors to the premises prior to the execution of the lease, the affidavit distinctly avers that the strip of land was then occupied and used by the Pennsylvania Canal Company. Three quarters of a century ago, in Woods v. Farmers, 7 Watts 383, we said, adopting the English doctrine, that the possession of a tenant is notice of his actual interest, whether as lessee or purchaser. In the more recent case of Jamison v. Dimock, 95 Pa. 52, we reiterated the rule, holding that it is the duty of purchasers of real estate to make inquiry respecting the rights of parties in possession, and failing to do so, they are affected with constructive notice of such facts as would have come to their knowledge in the proper discharge of that duty. Had the defendant’s predecessors before executing the lease of 1871 inquired of the Pennsylvania Canal Company which was in possession of the strip of land they would have been informed that the canal company had the title which the defendant now sets up as a defense to this action and claims to be a fee in the canal strip. It is clear, therefore, that the defendant must be regarded as having purchased the two hundred and twenty-five
We think the case comes within the well settled rule that where a vendee buys or takes a deed, and gives his obligation for the purchase-money, with a knowledge of a defect in the title, and without taking a covenant against it, he cannot, in the absence of fraud, accident or mistake, withhold any part of the purchase-money on account of the defective title. As pointed out above, the defendant does not allege there was fraud, accident or mistake in the execution of the lease, and it is clear that the lessees had at least constructive notice of an outstanding title to the canal strip. In Cadwalader v. Tryon, 37 Pa. 318, 322, IVfr. Justice Thompson delivering the opinion, said: “If the defendant knew of the defect of the plaintiff’s title in the particular alleged and proved, before he bought, and required no covenant against it, and there was no fraud, he cannot detain any portion of the purchase-money......When there is a known defect of title, and no covenant or fraud, the presumption is that the purchaser agreed to take the risk of the title on account of the advantages of the
Thé judgment is affirmed.
Dissenting Opinion
Dissenting Opinion by July 1, 1914:
I am not familiar with any rule of law which gives a lessor the right to lease and receive royalties for coal owned by someone else. If the averments of the affidavit of defense are true, and this is a question of fact under the pleadings, the coal in dispute herd belongs to defendant, and if this be true, the lessors will be permitted to recover royalties for coal to which they have no title, and the lessee will be required to pay parties without title for coal mined and removed from its own premises. The technicalities of the law should not be permitted to make such a result possible. In Lazarus v. L. & W. B. Coal Co., 228 Pa. 532, the affidavit of defense was held to be insufficient, but this was put upon the ground that the averments of the affidavit did not show chain of title out of the Commonwealth, or how the title became vested in defendant. It was held to be deficient for this reason. In the case at bar the affidavit avers ownership of the coal in question to be in defendant and sets up chain of title from the Commonwealth. This corrects the deficiency suggested in the case above cited.
I would hold the affidavit to be sufficient so that the case could be tried upon its merits.