170 Pa. 437 | Pa. | 1895
Opinion by
This record does not present the precise question that was left undetermined in Luck v. Luck, 113 Pa. 256; whether, in the absence of an express agreement to pay, assumpsit will lie
The testimony thus offered and rejected tended to show that one tenant in common had mined an admitted amount of the common coal, sold it for a price satisfactory to both parties, and holds a part of the proceeds of sale to the exclusion of its co-tenant, who sues to recover a sum equal to that which it has already received of the common fund produced by said sale. Plaintiff’s cotenancy to the extent of a one eighth interest in the proceeds of the coal sold is conceded, and it has already received, as is admitted, that proportion thereof. It claims, however, that the quantum of its interest in said proceeds is one fourth instead of one eighth, and hence it seeks to recover one eighth more.
In view of the facts that appear to be undisputed and of the further facts which the proffered testimony tends to prove, we think the learned court erred in holding that, in the circumstances, an action of assumpsit could not be maintained.
The complicated machinery and delay of the old action of account render lias never made it a favorite remedy, and the ten
Where the cotenant has actually received the rent of the common property, or has converted coal, timber, oil, gas or minerals, — part thereof, — into cash and retains a share thereof which actually belongs to his co-owner, there would seem to be no good reason why, in a proper case, he may not be sued in assumpsit for his cotenant’s share thereof.
By the agreement of Dec. 30,1886, which was offered in evidence, plaintiff was recognized by defendant as a tenant in common with it of the stratum of coal, as the same then existed. It is true, the agreement assumes to set out the respective interests of the tenants in common, but by paragraph thirteen thereof the defendant agreed that there is nothing in the contract that should alter, affect or impair the title, interest or estate of any of the grantors. Inasmuch as plaintiff refused to sign this agreement, and only recognized its provisions in so far as they provided for royalties or price to be paid for coal mined by defendant, it is not estopped to any greater extent. Defendant has not sold the title claimed by plaintiff to the coal in place, but has mined, sold and disposed of the coal itself in such manner that the same cannot be recovered by ejectment. Nor is the present an action for the use and occupation of the
The supplement of April 22, 1856, P. L. 529, to the act of 1850, is inapplicable to this case. To construe it otherwise would deprive the parties of the right to trial by jury, and to that extent would make the act unconstitutional. We have heretofore held that the statute must be restricted to such cases as are proper subjects of equitable jurisdiction, that this preliminary question whether there are sufficient grounds for equitable interposition is for the courts, and not for the legislature, atrd that the legislature cannot, by its mere declaration to that effect, convert a legal right into an equitable one : North Penn Coal Co. v. Snowden, 42 Pa. 488; Norris’ App., 64 Pa. 275.
For like reasons, we think the original act of 1850 is not applicable to this case. That act gives equity jurisdiction for the stating of an account where coal mines or mineral shall be held by two or more persons as tenants in common, and coal shall be taken out by one or more of said owners. It provides that all the tenants in common shall be made parties, and that the court shall ascertain the quantity and value of the coal taken and the sum that may be justly and equitably due by, from or to them respectively therefor according to their respective interests in the lands. In the case before us, no question of account is involved or could possibly be raised.
As the case is now presented, there does not appear to be any reason for bringing in any of the other tenants in common. The plaintiff admits the quantity and value of the coal mined and sold by defendant. There is no controversy as to the sum
' For these and other reasons that might be suggested we think that both specifications of error should be sustained.
Judgment reversed and a venire facias de novo awarded.