Neumoyer v. Andreas

• Decision Date: 27 March 1868
• Citation: 57 Pa. 446
• Parties: Neumoyer <I>et al. versus</I> Andreas.
• Court: Pennsylvania Supreme Court

Page 446

57 Pa. 446

Neumoyer et al. versus Andreas.

Supreme Court of Pennsylvania.

March 17, 1868.

March 27, 1868.

March 17th 1868.

Before STRONG, AGNEW and SHARSWOOD, JJ. THOMPSON, C. J., at Nisi Prius. READ, J., absent.

Error to the Court of Common Pleas of Lehigh county: No. 143, to January Term 1868.

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C. M. Runk and E. J. Fox (with whom was F. A. Baldwin), for plaintiffs in error.—As to 1st error, cited Caldwell v. Fulton, 7 Casey 476; Johnstown Iron Co. v. Cambria Iron Co., 8 Id. 246; Moore v. Small, 7 Harris 467; 1 Story's Eq. §§ 759, 761, 763; Debozear v. Basler, 2 Grant 422; Young v. Glendenning, 6 Watts 509; Steel v. Thompson, 3 Penna. R. 38; Act of 1772, supra; McGee v. Fessler, 1 Barr 131; Clement v. Youngman, 4 Wright 345; Chetham v. Williamson, 4 East 469; Co. Litt. 46; Caldwell v. Copeland, 1 Wright 431; Armstrong v. Caldwell, 3 P. F. Smith 284; Funk v. Haldeman, Id. 229; Lefevre v. Lefevre, 4 S. & R. 241; Rerick v. Kern, 14 Id. 271; Wood v. Ledbitter, 13 M. & W. 840 and cases in note; McKellip v. McIlhenny, 4 Watts 317; Swartz v. Swartz, 4 Barr 353; Huff v. McCauley, 3 P. F. Smith 206; Blashford v. Duncan, 2 S. & R. 480; Hohly v. German Reformed Society, 2 Barr 293; Shaffer v. Sutton, 5 Binn. 230; Taylor's Land. and Ten., § 369; 2 Bl. Com. 41; Gilbert on Rents 20; 2 Washb. Real Prop. 9; Turner v. Reynolds, 11 Harris 206; Essler v. Johnson, 1 Casey 350.

On the 2d assignment: 4 Kent's Com. 112.

On the 3d assignment they cited Ayres v. Novinger, 8 Barr 414; Marsh v. Pier, 4 Rawle 273; Mann v. Drexel, 2 Barr 210; Souter v. Baymore, 7 Id. 417, and the cases there cited; Fahnestock v. Faustenauer, 5 S. & R. 174; Blashford v. Duncan, 2 Id. 480.

J. D. Stiles and S. A. Bridges (with whom was G. B. Schall), for defendant in error, cited Act of 1772, supra.

On 1st assignment: Newell v. Gibbs, 1 W. & S. 496; Cunningham v. Gardner, 4 Id. 126; Debozear v. Butler, 2 Grant 417; Greenlee v. Greenlee, 10 Harris 227; Brawdy v. Brawdy, 7 Barr 157; Christy v. Barnhart, 2 Harris 262; Moore v. Small, 7 Id. 461; Poorman v. Kilgore, 2 Casey 365; Postlethwait v. Frease, 7 Id. 472; McKowen v. McDonald, 7 Wright 441; McClure v. McClure, 1 Barr 378; Clark v. Everly, 8 W. & S. 232; Moon v. Miller, 8 Barr 283; Co. Litt. 45; Bac. Abr. Lease, K.

The opinion of the court was delivered, March 27th 1868, by AGNEW, J.

It is necessary to lay out of the cause several of the questions presented, by stating the true position of the case before us. This is not an appeal from the decision of the justices and jury in the landlord and tenant proceeding before them under the Act of 21st March 1772. That act gives no appeal. It came into the Court of Common Pleas upon a recognisance taken before the justices under the 13th section of the act, which remitted the tenants to that court to prosecute their claim of title acquired after the commencement of the lease and set up in their affidavit to arrest the proceedings of the justices and jury. On this being done, the act proceeds to say that the justices shall forbear to give their judgment. It then provides that if the person setting up this after-acquired title, shall fail to prosecute his claim, the recognisance shall be forfeited to the landlord, and the justices shall proceed to give judgment and cause the premises to be delivered to the landlord. As remarked by Gibson, C. J., in Steele v. Thompson, 3 Penna. R. 37, this is a suspension of the proceedings before the justices and freeholders, in order to have the judgment of the Court of Common Pleas on the question whether the landlord has not parted with his reversionary right, since the demise. It is evident, therefore, that when the case came into the Common Pleas, it was not to try the questions committed by the act to the decision of the justices and freeholders, but that of title to the reversion acquired after the demise. The onus, as remarked by Rogers, J., in Newell v. Gibbs, 1 W. & S. 500, is thrown on the tenant. It is the trial of a collateral fact: per Gibson, C. J., Clark v. Everly, 8 W. & S. 232. This being the attitude of the case in the Common Pleas, it is obvious that the plea of a former finding of two justices and a jury of freeholders, as well as the alleged settlement and continuance of the lease, were defences that belonged to the forum of the justices and jury and not to that of the Common Pleas. Indeed, according to the opinion of Tilghman, C. J., a finding by the jury for the tenant has no effect upon a subsequent proceeding. He says in such case no record is directed to be made and consequently no judgment is given for the tenant, nor can he in any subsequent proceedings avail himself of the opinion of the jury: Galbraith v. Black, 4 S. & R. 212. Without now deciding upon the effect of a finding by the freeholders for the tenant, it is sufficient to say that the plea of a former finding was out of place in the proceeding before the Court of Common Pleas.

But it is contended, under the doctrine of Steel v. Thompson, supra, that there was no jurisdiction in the justices and freeholders, for the want of a lease, such as would confer it under the Act of 1772, and therefore that judgment in the Common Pleas should have been for the tenant. This argument is founded upon the rejected offer referred to in the 1st assignment of error, but overlooks its terms. The offer was to prove that after the original contract made between the plaintiff and defendant in the year 1853, as it is set forth in the complaint of the plaintiff, a contract was entered into between the plaintiff and defendant in the year 1855, to the effect, &c. Thus the offer was not to show that the original contract upon which the plaintiff grounded his proceeding before the justices was not such a lease as to give them jurisdiction, but that the subsequent contract vested a different estate in the defendant from that which he had under the original lease. It is not denied that the original lease set forth in the complaint, to wit, for ten years at a rent of twenty-five cents per ton for all the iron-ore mined and taken away, came within the terms of the Act of 1772. The doctrine of Steel v. Thompson is therefore not applicable, and we are now brought to consider the error assigned upon the rejection of the offer already referred to, in its only proper aspect as proof of a title to the reversion acquired after the inception of the lease. The offer was to prove a contract "to the effect that if the defendants would sink a well, plank it and put in an iron pump, and put up an engine to pump out the water, the defendants should be entitled to dig all the ore that could be found on the land of the plaintiff described in the complaint, and should pay him twenty-five cents for each ton so dug, and that in pursuance of this contract the defendants remained in possession of the...