34 Pa. Super. 101 | Pa. | 1907
Opinion by
The contract, the construction of which gives rise to this litigation, is evidenced by a written instrument, under seal, dated March 1, 1869. By its terms the first parties, then the
Whilst the paper before us is called by the parties a “lease,” and contains many provisions properly applicable only to such an instrument, jret it contains others, and they going to its very substance, that proclaim the intention of the parties to have been a sale of all the coal in place and make this contract not distinguishable from those construed by the Supreme Court in the eases' cited. In the latter of these Mr. Justice Clark'says:
“ What is termed a mineral lease is frequently found to be an actual sale of a portion of the land ; it differs from an ordinary lease in this, that although both convey an interest in land, the latter merely conveys the right to its temporary use and occupation, whilst the former conveys absolutely a portion of the land itself. It is one of the essential properties of a lease that its duration shall be for a determinate period, shorter than the duration of the estate of the lessor, hence the estate demised is called a ‘ term ’ and necessarily implies a reversion. If the entire interest of the lessor is conveyed, in the whole or a portion of his land, the conveyance cannot therefore be properly regarded as a demise, but as an assignment. • “Upon examination of this instrument we find that the lease is not of the mine, with its approaches and appliances, and the right to use, occupy and operate the same, but it is a lease of all the coal beneath the surface of the tract,’ with the right ‘to mine the coal and remove the same.’ . . . The duration of the interest is not for any determinate period of time ; it is not for years, for life, or at will; . . . . that is to say, it is a lease of the coal until no coal remains. In what respect, then, does this transaction lack the essential qualities of an actual Sale ? ”
From this it would seem to follow logically that the consideration named in the contract, the.thing of value moving from the grantee to the grantor, was, legally speaking, purchase money. And this would be true not only of that portion of the consideration which was to be paid in money, but also to the eighteen tons of coal to “ be furnished annually during the continuance of this lease.” Purchase money means money or anything that is money’s worth: 23 Am. & Eng. Ency. of
In the recent case of Coolbaugh v. Lehigh & Wilkes-Barre Coal Co., 218 Pa. 28, it was held, construing a contract substantially like the one now before us, that, as to the coal remaining unmined at any particular time, the lessor still retained the legal title so that it would be bound by the lien of a judgment against him ; that by a judicial sale following an execution issued on such judgment such title would be divested, and thereafter the sheriff’s vendee would have the right to receive the rent or royalties reserved in the lease. Of course, if the instrument now under consideration be regarded as a lease, pure and simple, and the consideration to be paid annually, under its terms, as rent, the transfer of the title to the demised premises would carry with it the right to the receipt of the rent thereafter accruing. It matters not, therefore, whether we regard the annual furnishing of eighteen tons of coal as part of the purchase money or part of the rent] in either case the present plaintiff, having succeeded to the ownership of the undivided one-third of the estate of the original grantors or lessors, has become lawfully invested with the right to receive that proportion of the annually accruing rent or purchase money.
Judgment affirmed.