Wally v. Jones

• Decision Date: 24 June 1922
• Docket Number: 92
• Citation: 275 Pa. 250,119 A. 75
• Parties: Wally v. Jones et al., Appellants
• Court: Pennsylvania Supreme Court

119 A. 75

275 Pa. 250

Wally v. Jones et al., Appellants

No. 92

Supreme Court of Pennsylvania

June 24, 1922

Argued May 10, 1922

Appeal, No. 92, Oct. T., 1922, by defendants, from judgment of C.P. Allegheny Co., July T., 1921, No. 959, on verdict for plaintiff, in case of M. M. Wally v. G. William Jones, Jr. et al. Affirmed.

Ejectment. Before DREW, J.

The opinion of the Supreme Court states the facts.

Verdict and judgment for plaintiff. Defendants appealed.

Errors assigned, inter alia, were various rulings on evidence and refusal of judgment for defendant n.o.v., quoting record.

The judgment of the court below is affirmed.

O. K Eaton, with him W. F. & R. B. Petty, Jr., and Howard Q. Turner, for appellants. -- It was error to admit the lease in evidence: North Penn Iron Co. v. Lithoid Co., 217 Pa. 538.

Plaintiff claiming a forfeiture must clearly and strictly establish it, especially in a case where it is admitted that defendant had at one time a good title and right of possession: Stanton v. Pittsburgh, 257 Pa. 361; Lutes v. Randall, 267 Pa. 285; Venture Oil Co. v. Fretts, 152 Pa. 451; Colgan v. Oil Co., 194 Pa. 234; Westmoreland N. Gas Co. v. DeWitt, 130 Pa. 235; Bartley v. Phillips, 165 Pa. 325; Thompson v. Christie, 138 Pa. 230; Riddle v. Mellon, 147 Pa. 30.

Maynard Teall, with him George D. Wick and Reed, Smith, Shaw & Beal, for appellee. -- The case at bar is practically on all fours with the case of Curtin v. Peoples N. Gas Co., 233 Pa. 397.

One tenant in common has no power to bind his cotenant by an agreement with another to lease their land: Caveny v. Curtis, 257 Pa. 575.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE KEPHART:

Plaintiff brought this action to recover a tract of land in McCandless Township, Allegheny County, containing forty-eight acres, excepting five acres immediately surrounding a flowing oil well located thereon. He claims his right through the heirs of William Lyons, under a lease dated April 11, 1921. Defendants in this case, and the one immediately following, claim under a lease from the same persons, dated August 15, 1918.

William H. Miller, defendant in an action similar to this one against G. William Jones, Jr., et al., obtained his right through an assignment from Jones, lessee under the 1918 lease. This lease was for a period of two years, and as much longer as oil or gas was found in paying quantities, upon the following terms: Operations were to commence within sixty days, "and failure to commence the operations or pay the rental shall render the lease null and void; neither party shall be held to any liability for damages upon any stipulations or conditions herein contained. . . . Should only one well be drilled on above premises within two years, then, with the exception of five (5) acres immediately surrounding well drilled, this lease shall be null and void and of no effect." Defendants did not drill the second well within two years, and as a result thereof a second lease to plaintiff (that of April 11, 1921) was executed.

Plaintiff proved the second well was not commenced within the two-year period, on which event the forfeiture accrued. It is not denied a written notice of forfeiture was given defendants before the second well was started, and it was started after that notice. Defendants, to deny the happening of forfeiture, asserted a waiver thereof; the burden rested on them to show it. This was attempted by introducing evidence tending to show one of the heirs was agent for the others, and, by his acts, the term of this lease and time for drilling was extended; that Jones thereupon proceeded within a reasonable time to drill the second well, and the conduct of the Lyons heirs was such as to waive this clause. All these questions, on submission to the jury, were, as to defendants, answered negatively by a verdict in plaintiff's favor, on which judgment has been entered. It is now claimed that the court below committed a number of trial errors.

The lease from the Lyons heirs to plaintiff was admitted without proof of execution by the subscribing witnesses, notaries public in California and West Virginia. The execution of this instrument was not denied by the pleadings, but each defendant, in answer, was contented with a demand for proof. This we held, in Buehler v. U.S Fashion Plate Co., 269 Pa. 428, 432, 433, is not a denial. Proof of execution was made by Samuel Lyons, an heir, testifying to his own signature and that of his co-heirs. Four others were in court testifying as witnesses; they were not questioned as to the execution of the paper, and the heirs not called lived in the states mentioned above. The subscribing witnesses, the notaries public, were beyond the reach of subpoena. The error, if such it be, is not sufficient ground for reversal, as there was other testimony, received without objection, showing that a representative of the Lyons heirs delivered this lease to plaintiff, and counsel for def...