Buchanan v. Hazzard

• Decision Date: 04 October 1880
• Citation: 95 Pa. 240
• Parties: Buchanan <I>versus</I> Hazzard and Wife.
• Court: Pennsylvania Supreme Court

95 Pa. 240

Buchanan versus Hazzard and Wife.

Supreme Court of Pennsylvania.

June 21, 1880.

October 4, 1880.

June 21st 1880.

Before SHARSWOOD, C. J., MERCUR, GORDON TRUNKEY, STERRETT and GREEN, JJ. PAXSON, J., absent

Error to the Court of Common Pleas of McKean county: Of May Term 1880, No. 50.

COPYRIGHT MATERIAL OMITTED

Hamlin & Son and A. G. Olmstead, for plaintiffs in error.— The married woman had put the defendants on the land, and induced them to drill oil wells. Whether they went on with or without a then fixed legal title, we submit, makes no difference for the purpose of this position. Oil was being produced and flowed into the tanks. As it was produced it became a chattel. The right to the royalty was not land; it was a chose in action. By an instrument dated 11th of August 1877, in consideration of $600, she sold to the defendants the one-eighth part of her "right, title and interest," and describing it as being the one-fourth royalty. It is submitted that she had authority to sell, and did make a valid sale of this, together with the right to go upon her land to get it, by her contract of August 11th 1877. Though her husband did not unite with her in signing the contract of sale of the royalty, yet the evidence shows that he was present and consenting, and by such consent he is clearly estopped.

The plaintiffs in error especially rely on the effect of the contract of 9th of July 1877, which formed a part of the offer rejected. It was executed by Mary A. Hazzard and her husband, and acknowledged in due form of law to convey title to land owned by a married woman. By its provisions Mrs. Hazzard and her husband, in consideration of the sum of $400, sold to Baltons the one-eighth part (which was the one-half of the one-fourth royalty under the lease referred to), of the oil produced by a well being drilled on the land of Mrs. Hazzard, and under the lease to Buchanan Brothers. It makes especial reference to the lease of Mrs. Hazzard to Buchanan Brothers, for the terms and conditions of the sale, and adopts it; by it she sold the fruits of the lease. We submit that its effect is to affirm by a valid instrument, and in a legal manner, the former instrument which was voidable at the pleasure of the married woman: Shaw v. Anderson, 7 S. & R. 43; Fulton v. Moore, 1 Casey 468; Fryer v. Rishell, 3 Norris 521; Vance v. Nogle, 20 P. F. Smith 176; Freeman v. Welsh, 7 W. N. C. 296; Brown v. Bennett, 25 P. F. Smith 420.

Corley v. Pentz, 26 P. F. Smith 57, determines the right of one in the actual possession of land to maintain an ejectment for it against an intruder. There the defendant entered for the purpose of cutting and carrying away the timber; here, for the purpose of cutting the rock and removing the oil. In either case, such entry, without right, was a trespass, and by such form of action the plaintiffs have their remedy. The court withdrew the...