Gotshall v. J. Langdon & Co.

• Decision Date: 22 January 1901
• Docket Number: 37-1900
• Citation: 16 Pa.Super. 158
• Parties: Gotshall v. J. Langdon & Company
• Court: Pennsylvania Superior Court

16 Pa.Super. 158

Gotshall v. J. Langdon & Company

No. 37-1900

Superior Court of Pennsylvania

January 22, 1901

Argued October 23, 1900 [Syllabus Matter] [Syllabus Matter] [Syllabus Matter]

Appeal by defendant, from judgment of C.P. Northumberland Co.-1898, No. 102, on verdict for plaintiff in case of Annie L. Gotshall v. J. Langdon & Company, incorporated.

Trespass for the alleged mining of coal. Before Savidge, P.J.

The defendant pleaded not guilty, and subsequently at the trial the statute of limitations.

At the trial counsel for the plaintiff propose to show by C. W. Gotshall that the plaintiff in this case acquired an equitable title to the property in which the trespass is alleged to have been committed, some time in the year 1885, by a parol contract; that immediately after the contract was made between the plaintiff and Lewis Yeager, by and under which the plaintiff purchased the property, the plaintiff went into possession of the property and improved it by building thereon a house and making other improvements; that she has continued in possession from that time to the present; that at various times between the date of making of the contract and the date of the execution and delivery of the deed, the plaintiff made payments to the grantor of various sums of money on account of the purchase price until the full purchase price was paid, after which the deed for the premises in question was executed and delivered by the grantor to the plaintiff, and that the full legal title was afterwards obtained. This for the purpose of showing an equitable title in the plaintiff at the time some of the trespasses, complained of in the declaration, were committed.

Counsel for the defendant objected:

1. Because the first proposition to prove an equitable title by the witnesses on the stand is a proposition to prove a question of law and no fact.

2. Because the offer is not evidence under the pleadings in this case, under the plaintiff's statement; the plaintiff's statement declaring not as an equitable owner, but as the owner of the fee, setting out no proportion in which she would be entitled as the owner of the legal title, and owner of the coal which is alleged to have been removed, the owner of the legal title having a right of action and the declaration declaring under the legal title of the property under which it is alleged the coal was mined.

3. Because it is alleged that there was a contract, or article of agreement, which it is not proposed to prove or show.

4. Because the entering into the possession of property by a married woman raises no presumption of ownership as against her husband, nor does it prove that she is the owner.

5. Because it is not competent to show title to real estate by parol testimony in this way.

6. Because the entire offer, if proved, would have no tendency to prove any title to the real estate in question prior to the date of the deed, which has been offered in evidence and which the plaintiff has already produced here and shown to be the inception of their title.

7. That the entire evidence would have no tendency to prove the right of the plaintiff to recover in this suit for anything prior to the date of the deed, which was September 5, 1891, because the evidence offered is incompetent, and under the pleadings irrelevant in this suit.

8. That whether the contract, proposed to be proved, be in parol or a written contract, it merged in the deed of September 5, 1891, and granted and conveyed to her in fee simple without the right of recovery any damages that might have accrued to her grantor.

9. That the evidence offered is not admissible under the pleadings in this case, for the reason that the declaration charges that the plaintiff for many years prior to the grievance herein mentioned, was and still is the owner in fee of all that certain lot or piece of ground, situate, lying and being in the borough of Shamokin, county of Northumberland and state of Pennsylvania, and known, designated and described upon the map or plan of said borough as lot numbered 5, in block numbered 111.

That in February, 1894, or thereabouts, the precise time or date cannot now be accurately given, as the plaintiff had no means of knowing, and all information thereof was concealed from her by the said corporation, the said defendant knowing that the said coal was on the land of another and the exclusive property of another, with force and arms and in a wilful and fraudulent manner, and in the utter disregard of the plaintiff's right, broke and entered into, and upon and under the surface of the said land of the plaintiff, and mined and dug out divers large quantities of coal, etc., and if this amendment is allowed it is for the purpose of allowing them the claim from the inception of their alleged equitable title, which would add nine years prior to the date charged in the declaration.

The Court: We are of the opinion that the plaintiff has a right to show an equitable title to the lot in question under the parol contract, and to prove their possession and the payment of purchase money is offered, and to sustain their alleged right to recover for the coal mined under the premises.

To which the defendant excepts and bill sealed.

Defendant's points were as follows:

1. That under the evidence and pleadings in this case there can be no recovery for any damages prior to the date of the deed to Annie L. Gotshall, the plaintiff, September 5, 1891; that the plaintiff has declared that she was the owner of a fee simple title to lot No. 5, in block No. 111, in the borough of Shamokin, and that in February, 1894, or thereabouts, the defendant broke and entered upon, into and underneath the surface of said land, and mined and removed large quantities of coal; that the said statement makes no charges of any injury to any equitable estate, and is any parol agreement, entered into between her and the grantor, merged in the deed, and the deed to her does not convey the right of action in the grantor, Lewis Yerger. Under the pleadings there can be no recovery for coal removed prior to the date charged in the declaration. Answer: Negatived.

2. That under the pleadings in this case the defendant had no notice of any injury or claim for damages to any other than her fee simple title, which she acquired by virtue of the deed of Lewis Yerger to her, dated September 5, 1891. Therefore, all evidence of the mining and removal of coal from underneath the said lot, prior to the execution and the delivery of said deed, must be excluded. Answer: Negatived.

3. That under the evidence in this case there can be no recovery for damages prior to September 5, 1891, the date of defendant's deed. Answer: Negatived.

Verdict and judgment for plaintiff for $ 800. Plaintiff appealed.

Errors assigned were ruling on evidence, quoting the bill of exceptions. Above instructions, quoting them.

W. H. M. Oram and S. P. Wolverton, for appellant. -- There was not only a fatal variance between the proof and the allegation in the plaintiff's statement, but a recovery allowed and a verdict and judgment entered against the defendant for an alleged cause of action of which the most careful inspection of the statement discloses not the slightest intimation. This is clear error: Darlington v. Painter, 7 Pa. 473; Pass. Conductors' Life Ins. Co. v. Birnbaum, 116 Pa. 565; Henry v. Fisher, 2 Lack. Jurist, 337; Erb v. Kindig, 6 Pa. Dist. 418; Ryder v. Jacobs, 182 Pa. 624; Todd v. Quaker City Mut. Fire Ins. Co., 9 Pa.Super. 381; Umbehocker v. Rassel, 2 Yeates, 339; Pratt v. Trunick, 2 Pittsburg Rep. 289; Good v. Mylin, 8 Pa. 54; 1 Greenleaf on Evidence (Lewis's ed.), secs. 51, 52, 448; Watkins v. Moore, 192 Pa. 221.

W. H Unger and Voris Auten, for appellee. -- The statute of limitations runs against an injury committed in a lower stratum,...