McClaren v. Citizens' Oil & Gas Co.
| Decision Date | 26 July 1900 |
| Docket Number | 137-1900 |
| Citation | 14 Pa.Super. 167 |
| Parties | McClaren v. Citizens' Oil & Gas Company |
| Court | Pennsylvania Superior Court |
Argued May 16, 1900 [Syllabus Matter]
Appeal by defendant in suit of Alexander McClaren against William A Zahn et al., trading as Citizens' Oil & Gas Company, from judgment of C.P. Lawrence Co.-1898, No. 57, in favor of plaintiff for want of a sufficient affidavit of defense.
Assumpsit for gas rental under an oil and gas lease. Before Miller, P J., of the 35th judicial district, specially presiding.
The facts sufficiently appear in the opinion of the court.
The court below entered judgment in favor of plaintiff for want of a sufficient affidavit of defense for $ 408. Defendant appealed.
Error assigned was entering judgment in favor of plaintiff for want of a sufficient affidavit of defense.
C. M. Thorp, with him S.W. Dana and A. Leo. Weil, for appellant. -- There is no privity of contract or estate between the plaintiff and appellants: Wickersham v. Irwin, 14 Pa. 108; Thomas v. Connell, 5 Pa. 13; Berry v. McMullen, 17 S. & R. 84; Negley v. Morgan, 46 Pa. 281; Weidner v. Foster, 2 P. & W. 23; Hannen v. Ewalt, 18 Pa. 9.
These cases we submit, show conclusively that the appellants should not be compelled to pay the rental claimed. They derived no benefit from the lease during this period. They were not in possession during this period. The benefit was derived by the McMillins or their assignees, the Big Meadows Gas Company, and the possession was in them under and by virtue of the appellants' assignment.
This doctrine of privity of estate is one constructed for the benefit of the landlord. The latter has the liability of the original lessee and his right of distraint to rely on also. He is already a favorite of the law. We submit that he should not be a mendicant begging for greater favors and is not entitled to an extension of the doctrine of privity of estate, which will make a new class of persons liable to him. If he has improvements on his land out of which to make his rent, and the personal liability of Book, the man he leased to, and of the McMillins, and the Big Meadows Gas Company, he is surely entitled to nothing more.
James A. Gardner, for appellees. -- There is such a privity here as will support a recovery, the defendants being assignees: Spencer's Case, 1 Sm. Ldg. Cases (9th Am. ed.), 174, 216, 217, 222, 226, 227; Borland's Appeal, 66 Pa. 470; Hannen v. Ewalt, 18 Pa. 9.
The defendants, whether they be the legal or equitable owners of the Book contract, are liable for the rentals, as they receive the income and profits: Berry v. McMullen, 17 S. & R. 84; Duff v. Bayard, 4 W. & S. 240; Elkinton v. Newman, 20 Pa. 281.
The privity of estate which induces liability is the actual or beneficial enjoyment of the premises, or the right of possession and enjoyment. It is the equitable title as against the legal: Wickersham v. Irwin, 14 Pa. 108; Hannen v. Ewalt, 18 Pa. 9.
Actual possession is not really necessary. The assignee is liable from the time of the assignment, even if the possession were vacant, for it is the close of him who has the right: Hannen v. Ewalt, 18 Pa. 9.
The acceptance of the assignment, the taking possession, or having the right to take possession, fixes the liability of the assignee, who is bound by his privity of estate; Hannen v. Ewalt, 18 Pa. 9; Negley v. Morgan, 46 Pa. 281.
Even an assignment by an assignee, which does not put an end to his actual or beneficial possession, or his right to possession, is not sufficient to destroy the privity of estate: Negley v. Morgan, 46 Pa. 281.
There is no merit in the objection, and it is doubtful whether it is good even if he were liable, the action being by reason of a privity of estate and not by contract, in which case it is not necessary to join all the owners: Spencer's Case, 1 Sm. Ldg. Cases (9th Am. ed.), 227.
Besides, these parties were doing business as the " Citizens' Oil and Gas Company" and the McMillins, as trustees, were required to account to them as such; and before the defendants can raise the plea in abatement, they should have alleged their compliance with the Act of April 14, 1851, P. L. 612, secs. 13, 14, that the partnership is registered: Cooper v. Sherman, 3 Kulp, 40; Hoffman v. Galland, 1 Leg. Rec. 16.
This whole case, therefore, depends upon the construction of the various contracts, the decisions, facts and decrees of the courts aforesaid, and there is no fact upon which a jury could be called upon to pass. The defendants being the beneficial and actual owners are liable to the plaintiffs for the rents, and the judgment of the court below is correct.
Before Rice, P. J., Beaver, Orlady, W. W. Porter and W. D. Porter, JJ.
This action was brought against the defendants as surviving partners trading as the Citizens' Oil & Gas Company. The affidavit of defense admits to be true the averments contained in the first, second, third and fourth paragraphs of plaintiff's statement. The paragraphs in question substantially aver the following facts: That the plaintiff, on November 25, 1890, by agreement in writing, leased unto Thomas A. Book, for the sole and only purpose of drilling and operating for oil or gas, a certain tract of land in Lawrence county. The covenants of the lessee which are now material were that he would deliver one eighth of the oil discovered and produced on said premises in pipe lines connected with the well, to the credit of the lessor; and in case gas was obtained in paying quantities that he would pay to the lessor $ 200 per annum for each and every well, so long as utilized or marketed. By virtue of various mesne assignments, all the estate created by said lease, grant or contract became vested in the defendants and William P. Bennett, partners doing business as the Citizens' Oil & Gas Company, who operated this and other leases under that firm style. William P. Bennett, died, leaving the defendants as surviving partners.
A well was drilled on the premises, gas therefrom was produced in paying quantities, and the same was utilized and marketed. It is admitted that the plaintiff is entitled to receive the amount for which this action is brought, from some quarter under the terms of the lease. There was no privity of contract between the parties to this litigation, and if the defendants are to be held it must be from privity of estate. The defendants admit that they had become privies to the estate created by the leasehold, but aver that such privity of estate had ceased, by force of a contract which they contended, as a matter of law, extinguished their estate in the land. The agreement upon which the defendants rely was entered into by all the members of the defendant company, as parties of the first part, and E. A. McMillin, one of their own number, and J. M. McMillin, who was not a member of the company, parties of the second part. It was dated January 31, 1893, and contained the following covenants which are now material. The agreement recited that the parties of the first part were the joint owners of certain oil leases upon which two wells had been drilled, and declared the purpose for which the agreement was made in the following language: The parties of the second part agreed, at their own proper cost and expense, to connect the gas wells with the pipe line and conduct the gas therefrom to New Castle, Pennsylvania within ninety days from that...
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