Walters v. McElroy

• Decision Date: 31 October 1892
• Docket Number: 241
• Citation: 25 A. 125,151 Pa. 549
• Parties: Walters, Appellant, v. McElroy et al
• Court: Pennsylvania Supreme Court

25 A. 125

151 Pa. 549

Walters, Appellant, v. McElroy et al

No. 241

Supreme Court of Pennsylvania

October 31, 1892

Argued October 3, 1892

Appeal, No. 241, Oct. T., 1890, by plaintiff, George Walters from decree of C.P. Clarion Co., Jan. T., 1888, No. 1, in equity, in favor of defendants, Joseph McElroy et al.

Bill in equity for injunction to restrain continuing trespass.

The facts and material averments of the bill and answer are stated in the opinion of the Supreme Court.

The agreement set up in the answer as a defence was under seal and provided that "the party of the first part [plaintiff] hereby for the consideration of one dollar in hand paid, as well as the agreements hereinafter mentioned, agree to sell and do hereby sell and convey to the party of the second part, [B. Heidrich] his heirs and assigns, all the coal and all other minerals of every kind and description and all that is found, removed and sold from, in, and under, a certain tract of land situate in the township of Madison, county of Clarion and state of Pennsylvania, [describing the premises upon which the alleged trespasses were committed,] with full right to enter said land, to dig, bore, excavate, quarry, mine and ship, build and remove, locate and build railroads over and under said land, or in any other manner to remove the same. In consideration whereof the said party of the second part hereby agrees and binds himself to pay the first party ten cents for every ton of 2240 pounds of coal and ten cents for every ton of 2440 pounds of ore and limestone and for all that is found, removed and sold; payments shall be made monthly for all that is removed and sold, and furthermore if said second party has paid royalties or made payment on minerals or payment in any manner on said land to the amount of dollars, said first party agrees to make a clear deed free of all incumbrances for said land, and to give possession at once."

The answer averred, upon information and belief, that the consideration, left blank by mistake, was $5,000; that $4,000 and upwards had been paid in royalties and other payments, with willingness to pay balance. The answer further alleged erection of valuable improvements, etc., and prayed to be discharged with costs.

The case was referred to James Boggs, as master. Plaintiff, called by defendants by way of cross-examination, testified that there was no agreement as to the sale of the land, that he refused to sell it. The master reported that defendants were guilty of the acts complained of in the bill. He recommended that a decree should be entered against the defendants for $179 and costs, and that a perpetual injunction should issue as prayed for in the bill. On exceptions to the master's report, the case was referred back to him to take further testimony. The master filed a second report in which he found ["that the subjectmatter of this suit is not within the jurisdiction of a court of equity, for the reason that the legal right on which plaintiff's prayer for relief rests is disputed by the defendants."]

Exceptions to the master's report were overruled by the court in the following opinion, by MEHARD, P.J., of the 35th judicial district, specially presiding:

"The learned master concluded in his second report, that the subject-matter of this suit is not within the jurisdiction of a court of equity, for the reason that the legal right, on which plaintiff's prayer for relief rests, is disputed by the defendants. The soundness of the doctrine leading to this conclusion is conceded by the learned counsel for the plaintiff, but its pertinence to this case is denied. The chief point of distinction relied upon is, that the instrument, conferring on defendants whatever rights they have to the locus in quo, is at most an executory contract for the land and was a present grant of only the coal and mining rights, privileges and facilities, and that, specific performance being a peculiar subject of equity, the court has jurisdiction. But this suit was not brought for that purpose; nor do the defendants in their answer, or cross bill, ask for specific performance of the contract. They are content, so far as the pleadings go, to abide by such execution of the contract as has already been performed. They are not here asking further performance. On the contrary, the issue is, whether their possession and enjoyment exceed their rights under the contract.

"It is earnestly and ably contended on behalf of plaintiff that the instrument under which defendants claim is not a valid contract for the conveyance of the land therein described, in as much as it omits to state the amount of consideration to be paid therefor. The determination of the question thus raised depends upon the true construction of the instrument itself; its legal effect when so construed; the conduct of the parties and privies with respect to that contract and the effect of such conduct on what might otherwise be their legal right. That issue must be determined before it can appear that plaintiff has suffered or is in danger of injury. The construction of that instrument and a determination of its legal effect is a question of much nicety and by no means free from difficulty: See Soles v. Hickman, 20 Pa. 180; Bowser v. Cravener et al., 56 Pa. 132. It calls for careful distinction between kindred cases and kindred principles. And a just determination of the whole question will evidently require a full investigation of many facts. If it should be determined in favor of defendant, this court would clearly have no jurisdiction of the subject-matter in the suit. As its determination in plaintiff's favor is precedent to his right to the remedy sought, it would be begging the question to assume jurisdiction of it, on the ground that the only adequate remedy for the supposed injury is to be had in equity: See Grubb's Appeal, 90 Pa. 228; Newcastle v. Raney, 130 Pa. 546; Mirkil v. Morgan, 134 Pa. 144. It is therefore considered that the learned master correctly concluded that this court has not jurisdiction of this suit.

["And now it is considered, ordered, adjudged, and decreed, that plaintiff's bill be dismissed at his costs; save that defendants shall file no bills for witnesses."]

Errors assigned were (1) decree; and (2) in sustaining conclusion of master enclosed in brackets, quoting decree, etc.

W. L. Corbett, Don C. Corbett with him, for appellant. -- The defendants were trespassers in committing the acts complained of in the bill: Brightly's Eq., par. 291, 292, 295; Allison's Ap., 77 Pa. 221; Stewart and Foltz's Ap., 56 Pa. 413; Bispham Eq. 434; Bitting's Ap., 105 Pa. 517; Bierbower's Ap., 107 Pa. 17; Harper's Ap., 109 Pa. 15, 16.

The agreement referred to in the answer was without consideration and was legally incomplete and void: Soles v. Hickman, 20 Pa. 182-3; Eargood's Est., 1 Pear. 399; Ferguson v. Stavers, 33 Pa. 413; Mellon v. Davison, 123 Pa. 298; Troup v. Troup, 87 Pa. 151; Monahan v. Colgin, 4 Watts, 436.

Even had there been a consideration fixed at the time of the agreement, the contract would have been within the statute of frauds, being in part in writing, and the consideration parol: Tripp v. Bishop, 56 Pa. 424. In the present case there was no possession or evidence of performance to bar the statute. Defendant's possession was only for the purpose of mining, plaintiff's possession being joint with him. That is not sufficient: Morelan v. Morelan, 121 Pa. 573; Frye v. Shepler, 7 Pa. 91.

The evidence in the present case did not show full payment of the purchase money alleged in the answer on information and belief, and plaintiff, in the absence of full payment, even if the contract was operative, would not have been entitled to enforce specific performance: Orne v. Kittanning Coal Co., 114 Pa. 172.

The rights in dispute raised by the answer were equitable and not legal ones, and the court should have decided them without referring them to another jurisdiction: Baker v. Williamson, 2 Pa. 119; Dale v. Roosevelt, 6 Johns. 257; Johns v. Erb, 5 Pa. 237.

John W. Reed, Harry R. Wilson with him, for appellee. -- The agreement referred to in the answer is based on sufficient consideration. Its nominal consideration was one dollar; it provided for royalties and was under seal. If the paper was insufficient to show consideration, this defect could be supplied by parol evidence: White v. Weeks, 1 P. & W. 486; Jack v. Dougherty, 3 Watts, 151; Buckley's Ap., 48 Pa. 491; Bowser v. Cravener, 56 Pa. 139. Indebitatus assumpsit will lie for the purchase money of land: Siltzell v. Michael, 3 W. & S. 329.

In equity a decree is not of right, but of grace, and a chancellor will refuse to enjoin, if in conscience it appear he would do greater injury by enjoining than by leaving the party to his redress by a court and jury: Richard's Ap., 57 Pa. 105; Rhea v. Forsythe, 37 Pa. 507.

The title of plaintiff must be established at law before he can resort to a chancellor: North Pa. Coal Co. v. Snowden, 42 Pa. 488; Grubb's Ap., 90 Pa. 228; Ferguson's Ap., 117 Pa. 426; Duncan v. H. & G. Iron Works, 136 Pa. 478; Washburn's Ap., 105 Pa. 480; Leininger's Ap., 106 Pa. 398; Phila. v. Brosius, 2 Leg. Rec. 312; Wilkesbarre & Seneca Lake Coal Co. v. Elliott, 2 Luz. L. Reg. 31; Mirkil v. Morgan, 134 Pa. 144; New Castle v. Raney, 130 Pa. 546; Pusey v. Wright, 31 Pa. 387; Brown's Ap., 62 Pa. 17; Jordan v. Woodhouse, 5 Luz. L. Reg. 141.

Before PAXSON, C.J., STERRETT, GREEN, WILLIAMS, McCOLLUM, MITCHELL, and HEYDRICK, JJ.

OPINION

MR. HEYDRICK, JUSTICE:

The principal question in this cause is one of jurisdiction. The plaintiff averred that he was the owner in fee of a tract of land situate in Madison township, Clarion county, and had for certain considerations sold all the coal and...