Appeal of Stoughton et al.

• Decision Date: 06 January 1879
• Citation: 88 Pa. 198
• Parties: Appeal of Stoughton et al.
• Court: Pennsylvania Supreme Court

Page 198

88 Pa. 198

Appeal of Stoughton et al.

Supreme Court of Pennsylvania.

November 22, 1878.

January 6, 1879.

November 22d 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON and TRUNKEY, JJ. WOODWARD, J., absent

Appeals from the Orphans' Court of Butler county: Of October and November Term 1875, Nos. 110 and 130.

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John M. Thompson and Charles McCandless, for appellants.— The original decree in this case having been made June 11th 1873, and the parties, William G. Stoughton and his lessees, having entered into possession under it, and having expended large sums of money in developing said lease, on the faith of said decree, and a great length of time having elapsed before the vacation or revocation of the decree was asked for, and the lessees, Stoughton and those under him, having obtained vested rights under the said decree of June 11th 1873, the court had no power to revoke it.

The lease of Campbell and Lambing of December 4th 1871, should not have been approved nunc pro tunc, because the guardian did not join in the petition therefor, but was made a respondent thereto; and secondly, their lease had been forfeited by a failure to comply with its conditions. But whatever the law may have been prior to the Act of April 18th 1853, Purd. Dig. 1242, since the passage of that act a guardian can make a lease of his ward's land only with the sanction of the Orphans' Court, and after the court is satisfied that it is to the interest of the minor that the lease should be made.

Edward S. Golden and L. Z. Mitchell, for appellees.—The master found the lease was fairly obtained and beneficial to the minors. In such case we think the guardian's act was valid, without the intervention of the Orphans' Court: Carskadden v. McGhee, 7 W. & S. 140; Bonsall's Appeal, 1 Rawle 274; Twaddle's Appeal, 5 Barr 15.

The court had the express power to make the decree prayed for, under the Act of 13th April 1854, Purd. Dig. 1246. By that act it is provided that wherever the court had the power to authorize the leasing in the first instance, and such leasing has taken place without this authority, the court may approve, ratify and confirm such leasing, and the effect of such subsequent action is equivalent to a previous authority. This power is unlimited either as to time or circumstances, and may be exercised in all cases and at any time. But even without the aid of this Act of Assembly, the power to make the decree prayed for is inherent in the court: Shepherd's Case, 27 P. F. Smith 303-4-5; Lane v. Nelson, 2 W. N. C. 216; Dougherty's Case, 19 P. F. Smith 293; Fitzgerald v. Stewart, 3 Id. 343.

It follows, as a matter of course, that if the court had the power to approve, ratify and confirm the lease of Campbell and Lambing, it had the power to vacate the approval of Stoughton's lease so far as it interfered with the prior lease.

Mr. Justice GORDON delivered the opinion of the court, January 6th 1879.

A guardian has, ordinarily, power to lease any of his ward's property that is of such character as makes it the subject of a lease, but without the approval of the Orphans' Court he cannot dispose of any part of the realty. Oil, however, is a mineral, and being a mineral is part of the realty: Funk v. Haldeman, 3 P. F. Smith 229.

In this it is like coal or any other natural product which in situ forms part of the land. It may become, by severance, personalty, or there may be a right to use or take it originating in custom or prescription, as the right of a life-tenant to work opened mines, or to use timber for repairing buildings or fences on a farm, or for fire bote. Nevertheless, whenever conveyance is made of it, whether that conveyance be called a lease or deed, it is, in effect, the grant of part of the corpus of the estate and not of a mere incorporeal right. In the case above cited, this is said to be so as to leases of coal lands for the purpose of mining, and there is no reason why the same doctrine should not apply to oil leases.

Not infrequently the oil forms by far the most valuable part of an estate, and to...