Orndoff v. Consumers Fuel Co.

Decision Date30 June 1932
Docket Number95,107
Citation308 Pa. 165,162 A. 431
PartiesOrndoff et al. v. Consumers Fuel Co. et al., Appellants
CourtPennsylvania Supreme Court

Argued April 18, 1932

Appeals, Nos. 95 and 107, March T., 1932, by Consumers Fuel Company and G. T. Anderson, from judgment of C.P. Greene Co June T., 1927, No. 264, on verdict for plaintiff in case tried by the court without a jury on a petition for a declaratory judgment, in case of John Barclay Orndoff et al v. Consumers Fuel Co., G.T. Anderson and the Natural Gas Co. of West Virginia. Affirmed.

Petition for declaratory judgment. Before SAYERS, P.J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiffs. Defendants, Consumers Fuel Co. and G. T. Anderson appealed.

Error assigned was decree of the court, quoting record.

The judgment of the court below is affirmed and it is directed that each of the appellants shall pay the costs of its and his appeal.

James J. Purman, with him Austin V. Wood, for appellant, Consumers Fuel Co. -- The court had no jurisdiction under the Declaratory Judgment Act: Pittsburgh's Consolidated City Charter, 297 Pa. 502.

This special remedy will not be applied "if another legal remedy is equally available:" Dempsey's Est., 288 Pa. 458, 460; List's Est., 283 Pa. 255, 257; Leafgreen v. LaBar, 293 Pa. 263, 264.

Ejectment or trespass is sufficient remedy: Bartley v. Phillips, 165 Pa. 325; Bartley v. Phillips, 179 Pa. 175; Williams v. Fowler, 201 Pa. 336; Hicks v. Gas Co., 207 Pa. 570; Barnsdall v. Gas Co., 225 Pa. 338.

Appellant is entitled to six-eights of oil.

Bearing in mind that on June 2, 1922, when G. T. Anderson made the lease of that date, no operations had been commenced on the land and that none had been commenced in the lifetime of Elizabeth J. Anderson, it follows as matter of law that the lease of that date is absolutely void: Marshall v. Mellon, 179 Pa. 371; Hill v. Roderick, 4 W. & S. 221; Blakley v. Marshall, 174 Pa. 425; Deffenbaugh v. Hess, 225 Pa. 638; Dickson v. Fertig, 21 Pa.Super. 283.

Orndoff did not execute the lease. No oil was reserved to Orndoff and he was bound by assignment of the prior lease and not entitled to royalty reserved in a lease which he did not sign and refused to execute: Swint v. Oil Co., 184 Pa. 202.

Orndoff was incompetent: Krumrine v. Grenoble, 165 Pa. 98; Kauss v. Rohner, 172 Pa. 481; Roth's Est., 150 Pa. 261; Wright v. Hanna, 210 Pa. 349; Arrott Mills Co. v. Mfg. Co., 143 Pa. 435; Murphy v. Murphy, 24 Pa.Super. 547; Acklin v. Oil Co., 201 Pa. 257.

J. I. Hook, of Scott & Hook, with him Hamilton & Pipes, for appellant, G. T. Anderson. -- The court below erred in dismissing the exceptions filed on March 31, 1931, by appellant, because they were filed more than thirty days after the judgment was entered on the issues of fact and the declaration: Mindlin v. O'Boyle, 283 Pa. 352; Harris v. Mercur, 202 Pa. 313.

Appellant is entitled to have the proceeds from the sale of one-eighth of the oil impounded and invested during his natural life under the lease from the remaindermen: Blakley v. Marshall, 174 Pa. 425; Dickson v. Fertig, 21 Pa.Super. 283.

Appellant's right to have the proceeds from the sale of one-eighth of the oil impounded and invested, cannot be defeated by the lessee reserving to him an additional one-forty-eighth of the oil, by the lease of June 2, 1922: Grove v. Hodges, 55 Pa. 504; Carnegie Nat. Gas Co. v. Phila. Co., 158 Pa. 317; Mercur v. R.R., 171 Pa. 12; Aye v. Phila. Co., 193 Pa. 451; Advance Industrial Supply v. Metallic Co., 267 Pa. 15; Saltsburg Colliery Co. v. Coal Mining Co., 278 Pa. 447; Dickson v. Fertig, 21 Pa.Super. 283.

W. J. Kyle, of Kyle & Reinhart, with him Challen W. Waychoff, for appellees. -- The court had jurisdiction: Kariher's Petition (No. 1), 284 Pa. 455.

The claim that the minor children of Rosetta Abercrombie will not be bound by the court's decision is without foundation. Their guardian is a party.

The lower court found that the interest of J. B. Orndoff was not and is not adverse to Rosetta Abercrombie or the parties to this action claiming under her and this is true.

It is the adverse interest only that disqualifies, not adverse testimony: Carpenter v. Ins. Co., 161 Pa. 9; Darragh v. Stevenson, 183 Pa. 397; Rine v. Hall, 187 Pa. 264; Horne & Co. v. Petty, 192 Pa. 32.

It is not the fact that the witness is interested in the outcome of the suit which disqualifies him. His interest must be adverse: Toomey's App., 150 Pa. 535; Gerz v. Weber, 151 Pa. 396; Rine v. Hall, 187 Pa. 264, 278; Norristown Trust Co. v. Lentz, 30 Pa.Super. 408, 410.

Parol evidence is inadmissible to contradict or vary the terms of a written instrument; but it may be admitted to explain and define the subject-matter of a written instrument; to prove a consideration not mentioned in the deed provided it be not inconsistent with the consideration expressed in it: Martin v. Berens, 67 Pa. 459; Miller v. Miller, 284 Pa. 414; Gandy v. Weckerly, 220 Pa. 285; Humbert v. Meyers, 279 Pa. 171; Wolverine Glass Co. v. Miller, 279 Pa. 138, 146; Evans v. Edelstein, 276 Pa. 516; Neville v. Kretzschmar, 271 Pa. 222; Montgomery v. Petriken, 29 Pa. 118; Phillip's Est. (No. 2), 205 Pa. 511; Whelen v. Phillips, 151 Pa. 312; Packer's Est. (No. 2), 246 Pa. 116.

The lease from the remaindermen is a grant to the lessee, his heirs and assigns, of "all the oil and gas in and under" the said premises, etc. Oil is a mineral and, being a mineral, is a part of the realty, and a lease of the land for the purpose of its development is in legal effect a sale of a portion of the land: Stoughton's App., 88 Pa. 198, 201; Blakley v. Marshall, 174 Pa. 425, 429; McIntosh v. Ropp, 233 Pa. 497, 512; Hutton v. Carnegie, 51 Pa.Super. 376, 381; Hamilton v. Foster, 272 Pa. 95, 102.

The life tenant and remaindermen may contract separately concerning their respective estates, and when they do each is entitled to the consideration agreed upon: Agnew's Est., 17 Pa.Super. 201, 203; 43 A.L.R. 811.




This is a declaratory judgment proceeding brought to determine the amount of oil royalty payable by Consumers Fuel Company to the respective lessors under oil and gas leases held by it, and the proportions and manner in which the lessors shall share in the royalties. There are two appeals, one by the Consumers Fuel Company, the lessee, and the other by G. T. Anderson, one of the lessors. They will both be disposed of in this opinion.

It is contended by the Consumers Company that a declaratory judgment proceeding is not the appropriate remedy; that ejectment, trespass or equity should have been invoked. We are not impressed with this view. It would be difficult to settle in ejectment all the rights and claims of the three interests involved; -- impossible, it would seem, to have adjusted them in trespass, and, while they might have been worked out in equity, that is not a more appropriate remedy than the one invoked, in which the judge sat without a jury under the Act of April 22, 1874, P.L. 109. To the argument that, as there are minors' interests to be affected, there is no jurisdiction by declaratory judgment, because we said in Kariher's Petition (No. 1), 284 Pa. 455, 471, jurisdiction will never be assumed unless all the parties are sui juris, it is sufficient to observe that in so stating we did not mean to close the door to declaratory judgment proceedings on minors who are represented by guardians as those in this case are.

A recital of the facts disclosed by the record will make clear the questions with which we have to deal. Elizabeth J. Anderson died May 4, 1907, seized of a tract of land in Greene County containing about 70 acres. She left surviving her husband, G. T. Anderson, who is still living, four sons, and a daughter Rosetta Abercrombie, who died March 27, 1925, leaving six children, three of whom are minors, having as their guardian the State Bank & Trust Company of Elm Grove, West Virginia. On December 22, 1915, the five children of Elizabeth J. Anderson, owning the entire estate, subject to the life estate of their father, G. T. Anderson, as tenant by the curtesy, made an oil and gas lease to John B. Orndoff, in which it was provided that the lessee should pay to the lessors a quarterly rental of $25 until a well was completed, and, if oil be found, that the lessee should deliver into pipe lines, free of charge, one-eighth of the oil to the credit of the lessors. When this lease was made, G. T. Anderson was in possession of all of the land as tenant by the curtesy and is so still. He did not join in the lease. The lessors advised the lessee that when he desired to drill, he would have to deal separately with the life tenant, and that no part of the one-eighth of the oil reserved could be used for that purpose. The court found as a fact that such information had been given by the lessors. Orndoff, the lessee, and his brother, who had an interest in the lease, assigned it on October 5, 1916, to City & Suburban Gas Company of Wheeling, West Virginia, advising that company of the existence of the life estate and that the lease gave no right of entry. In this lease the Orndoffs reserved to themselves an additional one-eighth of the oil. The assignee paid the annual rental to the lessors or their assigns and paid nothing to the life tenant.

In the year 1917, after the assignments of the lease, John B Orndoff purchased four-fifths of the estate in remainder from the four sons of Elizabeth J. Anderson, subject to the lease they had made with him. It is in this capacity as lessor and as plaintiff that Orndoff appears in this proceeding and not as lessee, the other...

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