Reynolds v. Smith

70 Pa. Super. 194 | Pa. Super. Ct. | 1918

Opinion by

Henderson, J.,

The agreement of May 15, 1913, between Isabella Reynolds, the grantor, and R. W. Reynolds, J. B. Reynolds and Jacob Merwin, the grantees, was a sale of the coal in place. It gave to the latter the right to mine and remove all of the coal without definite limitation of time. There was no provision for forfeiture or reserved right of reentry. Such an agreement is within the decision in Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 213 Pa. 28, and many other cases. The grantees were, therefore, tenants in common of the coal. When R. W. Reynolds and Merwin entered into the contract with the defendant they only transferred their respective interests to him. Not having title to the whole it is obvious that Smith acquired from them no greater interest than they owned. As a result of his purchase from them he stood in their place with reference to J. B. Reynolds with the same rights with respect to the coal which his vendors possessed before the sale to him. He became a tenant in common with J. B. Reynolds. He had a right to mine and sell coal but in doing so he necessarily took the property of his cotenant and for that he is bound to account. The Act of April 25,1850, P. L. 573, gives to the plaintiff the right to call on his cotenant for his share of the proceeds of the coal. It was mineral removed by one of the cotenants and the statute covers such a case: McIntosh v. Ropp, 233 Pa. 497. When R. W. Reynolds and Merwin sold to the appellant they ceased to be further interested as purchasers under the contract with Mrs. Reynolds, and could not properly be made parties in this proceeding. They owed nothing to the plaintiff and were under no obligation to account to him. The defendant removed the coal and. as he only owned two-thirds of it his responsibility is directly to the plaintiff.

The case is destitute of evidence that the plaintiff is estopped by his conduct from demanding an account. Nothing in the evidence tends to show that the appellant was misled by the plaintiff with reference to the purchase of the property or the management of it. The contract with R. W. Reynolds and Merwin was made without the knowledge of the plaintiff and without regard to him. The defendant proceeded to operate the property as if it were his own. It was his duty to ascertain what title he was acquiring and as against the plaintiff he cannot be heard to say that he understood he was getting all of the coal. The lease from Mrs. Reynolds was seen if not read by him at the time Ms contract was written and was used in its preparation. He had abundant opportunity to learn therefore, just what the title was which he was acquiring: Crest v. Jack, 3 Watts 238; Tonge v. Item Publishing Co., 244 Pa. 417. The opinion of the learned trial judge is well sustained by reason and authority and the determination of the amount due is in accordance with the evidence.

The decree is affirmed at the cost of the appellant.