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about the time he sold it. No person except the defendant testified to having seen such a deed, or to any declaration of her husband that he had conveyed the Strawn property to her.

We are clearly of the opinion that the evidence in the case is insufficient to sustain the defendant's contentions, and that the learned judge of the court below did not err in so holding. All the assignments are therefore overruled. Judgment affirmed.

PAUL et al. v. GRIMM et al. (Supreme Court of Pennsylvania. Jan. 3, 1898.)

JUDGMENT AGAINST ADMINISTRATOR-DEFENSE BY HEIRS ON SCIRE FACIAS-AGENT'S LIABILITY TO PRINCIPAL.

1. The right of decedent's heirs, under Act Feb. 24, 1834, § 34, on scire facias to charge land in their possession with a debt for which judgment has been obtained against the administrator, to make any defense which it would have been competent for them to have made in the original action if they had been parties, does not permit their raising again questions which were settled in plaintiff's favor in the original action.

2. An agent with full power to sell and convey, but who, without fraud, exceeds his authority, and accepts bonds instead of money in payment, is liable only for the market value of the lands, though a greater price is recited in the deed; this being fictitious, and obtained only by reason of the agreement to accept in payment the bonds of doubtful value.

Appeal from court of common pleas, Westmoreland county.

Action by John T. Paul, administrator of Sarah Paul, deceased, and others, against Simon H. Grimm, administrator of James L. Thompson, deceased, and others. Judgment for plaintiffs. Defendants appeal. Reversed. Williams, Sloan & Griffith, for appellants. John F. Wentling, David A. Miller, and Edward B. McCormick, for appellees.

FELL, J. Upon the trial of a scire facias to charge the land in the possession of the heirs of a decedent with a debt for which judgment has been obtained against the administrator, the defendants may make any defense which it would have been competent for them to have made in the original action if they had been parties thereto. The judgment, while conclusive as to the personal estate, as to the real estate is prima facie evidence, only, and the plaintiff's claim is open to contest on original grounds. This rule is founded on the construction given to section 34 of the act of February 24, 1834; and, while somewhat anomalous, it has been firmly established by the decision in Sergeant's Heirs v. Ewing, 36 Pa. St. 156, and the line of cases on which it rests, and it does not seem to have been seriously disputed at the trial. The defense offered was mainly a denial of liability for the acceptance by the decedent of bonds instead of money in payment for land which he had sold as agent. This question

had been definitely settled in favor of the plaintiffs by the decision of this court in Paul v. Grimm, reported in 165 Pa. St. 139, 30 Atl. 721, and was no longer open. The right to contest the plaintiffs' claim notwithstanding the judgment against the administrator was the right to contest it on valid grounds, and all testimony intended to raise again questions which had been decided adversely to the defendants was properly excluded.

The defendants, however, were denied one ground of defense which it was competent for them to make, as affecting the measure of damages. An offer was made to prove that the land conveyed was not worth $40 per acre; that there was no market for it at the time; that the price was fictitious, and much more than the property was worth; and that it was not intended that the sale was for the consideration mentioned in the deed, payable in lawful money. The language of the offer is not clear, its purpose was not stated, it was made in connection with other offers of testimony which were properly rejected, and the learned judge, in his desire to follow strictly the rulings of this court, doubtless overlooked the effect of the offer, and regarded it as part and parcel of the attempt to reopen a question which had been settled. In the interest of justice, we should not now give it a too strict construction, and it may fairly be considered as raising the question of the extent of the liability of the agent for exceeding his authority. That question was not passed upon at the first trial, and was not considered in the decision in Paul v. Grimm, supra, in which the construction to be given the power of attorney was determined. If the agent sold the land for $40 per acre, and accepted bonds instead of money in payment, the measure of his liability is the price for which he sold. If, however, it should appear that the price named in the deed was not the real price, but was fictitious; that the sale was not made, and could not have been made, for that price in money; that the price was in excess of the market value, and was obtained only by reason of the agreement to accept in payment securities of doubtful value,-then the recovery against the defendants should be limited to the market value of the land. This would be the measure of the actual loss of the plaintiffs. Their land was sold by an agent with full power to sell and convey, but who, without fraud, exceeded his authority, and accepted bonds instead of money in payment. If they are now paid the full market value of the land at the time, with interest, they are made whole.

We see no other error in the case. It was competent for the defendants to show ratification with knowledge, but there was no sufficient evidence on the subject to justify its submission to the jury. It does not appear from the record of the trial, or from the argument, why the testimony of R. C. McCurdy was withdrawn from the jury, and we cannot pass upon the assignment based upon

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1. A lessee of land for oil and gas purposes, required by his lease to commence operations on the premises within 30 days, on penalty of the lease being void, does not forfeit his rights if on the last day of the period allowed he in good faith enters and commences operations on the premises preparatory to drilling a well, and is prevented by the lessor from proceeding therewith.

2. Assignees of one who takes a lease with knowledge of a prior lease, and of the facts on which depends the question of forfeiture thereof have no greater rights against the prior lessee than their assignor.

Appeal from court of common pleas, Washington county.

Ejectment by T. O. Henderson and others against Thomas Ferrell and others. Judg ment for plaintiffs. Defendants appeal. Affirmed.

R. W. Cummins, David Sterrett, and Chas. C. Sterrett, for appellants. Andrew M. Linn and T. F. Birch, for appellees.

MCCOLLUM, J. On the 4th of February, 1896, Albert Behling, being then the owner of the land in suit, leased the same to Alexander Adams, "for the purpose and with the exclusive right of drilling and operating for petroleum and gas." By the terms of the By the terms of the lease, the lessee was required to commence operations on the premises within 30 days from the date thereof, and, on his failure to do so, the lease was to be considered by the parties as "null and void." On the 24th of February, 1896, Adams assigned a half interest in the lease to Henderson. Nothing was done on the 'premises by the lessees, or by their direction, until the 5th of March, that being the last day of the period allowed by the lease within which to commence operation. On that day, Henderson drove a stake near the center of the lot, to indicate the location of the proposed well, and the point at which the lumber required in the performance of the work called for by the lease should be deposited. In the afternoon of the same day, and while an employé of the lessees was unloading some lumber upon the lot, in accordance with their instructions, he was met by the lessor, who denied that they had any right to put it there. The ground of the denial was that the time allowed for the commencement of operations expired in the forenoon of that day. The lessor was accompanied by a number of persons, who appeared to be in accord with his manifest purpose to prevent the unloading of the lumber

upon the lot and the occupancy of it by the lessees or their workmen. The lessor's insistence that the lumber should not be deposited on the lot resulted in the unloading of the balance of it by the roadside, and in his removal from the lot of the lumber unloaded there. It may be stated in this connection that the stake driven by Henderson as above described had been taken up and carried away by the lessor or some member of his family before any lumber was unloaded upon the lot, and that the lessees were not present when the stake or lumber was removed, or when their employé was forbidden to deposit the lumber where they had directed him to.

The lessees had a clear right to enter and commence operations upon the lot on the 5th of March, and if they did so in good faith, and with a purpose to continue the work in accordance with the provisions of the lease, the resistance of the lessor to their occupancy of the lot furnished no warrant for a forfei

ture of the lease. This was the view that was taken of the lessor's action by the learned court below, and which the lessor contests on this appeal.

As the entry of the lessees upon the lot was before the time allowed for the commencement of operations under the lease had expired, it was prima facie, at least, a lawful entry, and the lessor's action was apparently an unlawful interference with it. It would seem, therefore, that the burden was on him to show conduct on their part which justified his action. But the lessees did not rest their suit for the possession of the lot on a bare presumption. They alleged and introduced evidence to prove that their entry was made in good faith, and with a determination on their part to prosecute with due diligence the work they were authorized by the lease to do. The evidence submitted by them showed the obstructions in the way of an earlier commencement of operations, and the efforts they made to secure the materials, machinery, and labor necessary to the proper performance of the work. It also showed that, when they commenced operations on the lot, they intended and were prepared to continue them, and that their failure to do so was caused by the refusal of the lessor to allow them to proceed. It is true that the defendants introduced evidence inconsistent with and tending to discredit the evidence to which we have referred; but this would not have justified a peremptory instruction from the court to the jury to find for the defendants. Certainly, the court could not say that the lessees had forfeited their right under the lease to enter and commence operations upon the lot when they did, or that their entry was a mere bluff, and they did not intend to comply with the provisions of the lease. Whether they commenced operations in good faith, and whether they intended to proceed with due diligence, were questions for the jury, and so was the question whether their failure to continue them was caused by the

action of the lessor. These questions were submitted to the jury in a clear and impartial charge, and the result was a verdict based on a finding of facts in accord with the lessees' contention. In other words, it is established by a verdict authorized by the evidence that the lessees entered and commenced operations upon the lot in good faith, and that they were prevented from continuing them by the unlawful interference of their lessor. The defendants claim under a lease from Behling to Adam A. Welsh, dated March 25, 1896. Welsh saw and examined the Adams lease before he closed his contract with Behling, and, according to the testimony of the latter, was told by him about the occurrences on the 5th of March, and that he would have to be responsible for the lease Adams had. On the 24th of April, Welsh sold and assigned his interest in the lease of March 26th to Gilmor, who on the same day assigned a half interest in it to the Forest Oil Company. The defendants therefore have, as against the plaintiffs, the rights which Welsh acquired by his lease, and nothing more.

We discover no error in the rulings complained of in the first and second assignments, or in the excerpts from the charge on which the third, fourth, and fifth assignments were based; nor do we think that the defendants have any cause to complain of the answers to their second and fourth points. We are clearly of the opinion that, upon the facts established by the verdict, the action of ejectment is maintainable. The assignments are overruled, and the judgment is affirmed.

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COMMITTEE OF LUNATIC-POWERS - DISCONTINUANCE OF ACTION.

Pending an action to set aside a deed given by complainant to defendant for fraud, undue influence, nondelivery, etc., complainant was adjudged a lunatic, and a committee was appointed, and substituted as complainant. Held, that such committee had no authority to discontinue the suit on the death of the original complainant, his interest having passed to his devisee or heirs, and the committee's authority ending with his death.

Appeal from court of common pleas, Allegheny county.

Action by John Stobert against James M. Smith. From a judgment in favor of plaintiff, defendant appeals. Reversed.

R. A. Kennedy, for appellant. David Smith, for appellee.

MITCHELL, J. This is an action for the purchase money of land, and the defense is that plaintiff's title is not marketable. The case stated shows the facts to be briefly these: One Latham conveyed the land, in 1880, to his stepson, the plaintiff, who in turn conveyed to his mother, Latham's wife,

and she, dying, devised it to plaintiff in remainder after a life estate to Latham. In 1890, after his wife's death, Latham filed a bill to set aside the deed of 1880 to plaintiff on the grounds of fraud, undue influence, nondelivery, etc. Pending this bill, proceedings in lunacy resulted in a finding that Latham had been a lunatic from January, 1892. This finding was traversed, but before the traverse was filed a committee was appointed, and substituted as complainant in the bill in equity. Some testimony was then taken in the equity case, but both it and the lunacy proceedings were pending and undetermined, when, in November, 1893, Latham died, leaving a will dated in March, 1892, by which he devised his whole estate to a Mrs. Moore. In 1896 the master filed the testimony in the equity suit (but no report), the committee discontinued the suit of record, and on payment of costs, etc., the court formally approved the discontinuance. The objections of the appellant to the title are that neither the committee nor the attorney had any authority to discontinue the suit after the death of their principal, and that such discontinuance is not a bar to the devisee or heirs at law of Latham to have the suit reinstated, or to bring a new one for the same cause of action. The case stated then proceeds that, if the court shall be of opinion that the discontinuance was properly made, and that the plaintiff can, in so far as the said equity suit affects his title, convey to defendant a fee simple, etc., then judgment for plaintiff; but if the court shall be of opinion that the "said discontinuance was improperly entered, and therefore plaintiff's title is not a good marketable title," etc., then judgment for defendant. In thus submitting to the court an alternative judgment, turning merely on the validity of the discontinuance, the case stated is defective, because it bases the judgment on an inconclusive fact. A discontinuance, rightly or wrongly entered, even if entered by Latham himself in his lifetime, would not be a bar to a second action for the same cause by him or his successor in title, and defendant is not, and cannot be, put in the position of a purchaser without notice. But as it is very clear that the discontinuance was without authority, we are enabled, notwithstanding the defect, to enter judgment. The bill was an assertion by Latham that the title was still in himself, notwithstanding his conveyance, and his committee prosecuted the suit only in his right, and for his benefit. When he died, the authority of the committee ended, and Latham's title, whatever it was, passed to his devisee, if his will was valid, or otherwise to his heirs at law. In neither case had the committee any title or right to control the assertion of the title which had been in Latham. The bill was, in substance, an ejectment, and the right of a personal representative to bring or prosecute an ejectment must depend on special circumstances, such as a direction to sell,

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etc. Cornell v. Green, 10 Serg. & R. 14; Kirk | opinion on the question reserved at the first v. Carr, 54 Pa. St. 285. Whether the discontinuance of the equity suit, however, was rightly or wrongly entered, the title of plaintiff is still liable to appellant's objection that, at least as to a purchaser with notice, it is

open to litigation on the subject-matter of the fortunately does not require notice to the

bill, and therefore is not marketable in the sense that the case stated calls for. Judgment reversed, and judgment directed to be entered for the defendant.

HEMPHILL v. PRY et al. (Supreme Court of Pennsylvania. Jan. 3, 1898.)

LIMITATIONS-RUNNING OF STATUTE-PAYMENT OF INTEREST-EXECUTOR-MORTGAGE TO SECURE DEBTS OF DECEDENT-VALIDITY.

1. A testator directed that all his debts be paid. as soon after his decease as possible, and that all his property be sold, and converted into money; and he granted his executors five years in which to make sale of his "estate as aforesaid." Held, that there was no express trust to sell for payment of debts, and hence such provision in the will did not prevent limitations from running against testator's debts during such five years..

2. Even if such provision created an express trust to sell for nayment of debts, it did not affect the operation of the statute, where the power to sell was not exercised within the five years limited by the will.

3. A mortgage by an executor to secure notes of the testator not under seal, pursuant to an order of the orphans' court, made nearly nine years after testator's death, and more than six years after such notes became due, did not affect the title of one who purchased the interest of two of the minor heirs after the notes were prima facie barred, and after a testamentary power of sale to pay debts, given the executor, had expired, though the executor had kept the interest paid on the notes; especially where such minors did not expressly assent to the payment of such interest.

4. But such mortgage was valid against adult parties who assented to keeping the notes alive by payment of interest.

Appeal from court of common pleas, Washington county.

Scire facias on a mortgage by John Hemphill against D. M. Pry, executor of the estate of J. T. Fredericks, deceased. Pending the action, W. H. Fredericks, Sarah A. Marks, and W. J. Fredericks were allowed to intervene as defendants. From a judgment in favor of plaintiff, defendants appeal. Reversed as to defendant W. H. Fredericks.

M. L. A. & B. E. McCracken and Young & Trent, for appellants. H. M. Dougan, for appellee.

MITCHELL, J. The practice of orphans' courts in ordering sale or mortgage of the real estate of decedents for payment of debts, years after death, and after the usual statutory period of limitations has run, appears to have become very loose, and is in need of revision, and greater caution for the preservation of the rights of heirs and devisees. The learned court below, in their

trial, expressed the very proper view that the better practice would be to have all the jurisdictional facts appear at large on the petition for the order of sale. But even this is not always enough. The statute unwidow and heirs or devisees, as it ought to do; but the orphans' court is a court of equity, and when the lapse of time or other circumstances in the case raise a reasonable presumption that other rights may have intervened, it is always the duty of a chancellor, even of his own motion, to be satisfied that such rights shall not be prejudiced without notice and an opportunity of hearing. In the absence of such opportunity, the proceedings will be closely scanned, to see that they conform strictly in all respects to the law. In the present case the order to mortgage was made nearly nine years after decedent's death, and more than six years after the notes which it was to secure had become due. Prima facie, therefore, the notes were barred by the statute of limitations, and their statutory lien as debts of the decedent upon his real estate had expired. This was the situation when the ap pellant W. H. Fredericks purchased the interest of two of the heirs. What was there to prevent his acquiring a clear title? It is said that there was a direction by the testator to sell for the payment of debts, and this took the case out of the statute. But the direction was the usual formal one that all his "honest debts be paid as soon after [his] decease as possible," and the further direction to sell was "that all my real and personal property be sold, and converted into money. I hereby grant unto my executors the term of five years in which to make sale of my estate as aforesaid." There was here no express trust to sell for the payment of debts. The power to sell was for the general purposes of the will, and was, moreover, in express terms limited to five years, which had expired before this mortgage was made. But it is further said that the running of the statute of limitations against the notes had been prevented by the payment of interest on them by the executor, with the assent of the widow and heirs. This is the only ground on which the judgment can be sustained, and, so far as the evidence justified the verdict, it was entirely sound. The law was correctly stated by the learned court, in their opinion on the question reserved at the first trial, that "the jury should have been instructed that if the notes of Margaret Hemphill were not under seal, and were overdue six years before the mortgage given, that the mortgage was invalid as against the intervening defendants, unless the interest was kept paid upon the notes after the death of J. T. Fredericks, either by them or by the executor with their knowledge and consent, to within six years of the date when the mort

gage was given, or unless something was done by them that would stop the running of the statute as against the collection of Mrs. Hemphill's notes, or stop them from calling in question the validity of the mortgage."

The mortgage was clearly valid against parties assenting to keeping the notes alive by payment of interest, but on the second trial the court unfortunately overlooked the fact that two of the sons were minors at the time of such payments, and could give no assent which would bind them. When they sold to a purchaser,—the appellant, they disaffirmed any assent they may have given during infancy, and, as already shown, the statute of limitations had already apparently run against the notes, the statutory period of lien of debts had expired, and so also had the testamentary power of sale given to the executor. Whether or not, under these circumstances, a purchaser would be bound by a secret lien, under the rule that a purchaser from an heir takes only such interest as the heir may ultimately be shown to have, it is clear that he would not be so bound unless his grantor would also. As already said, the two grantors of appellant W. H. Fredericks were minors at the time, and we have examined the testimony carefully without finding anything to show that they even expressly consented, much less that they had a guardian to advise and care for their interests. There was, therefore, no sufficient evidence to justify the submission to the jury of the question of assent as against them or their grantee. Judgment reversed as to appellant W. H. Fredericks.

SWINT et al. v. McCALMONT OIL CO. (Supreme Court of Pennsylvania. Jan. 3, 1898.)

LANDLORD AND TENANT-OIL. LEASES-ACTION FOR ROYALTIES-DEFENSES.

1. The owner of a farm made leases for oil purposes, reserving as royalty one-eighth of the oil produced. His son, who was of full age, and living on the farm with his father, was joined with the latter as a co-lessor. The oil reserved as royalty was delivered to the father and his vendees. Held, in an action by the son against the lessees to recover one-half the royalties, that defendant might show the circumstances under which plaintiff signed the leases, not to deny his landlord's title, but to deny that, as to the son, the leases created that relation.

2. All the royalties accrued up to the time suit was brought had been paid to the father or his assigns, with the knowledge of the son, and without protest, or notice from him of his individual claim. Held, that even if the leases were intended to be joint, though the title was in the father only, the remedy of the son was against those receiving the royalties, and not against the les

sees.

3. The assignment by the father of his interest in the royalties did not amount to a severance on which the rent was apportioned as matter of law, so that the son had a right to recover one-half of the royalties, notwithstanding the payment of them to the father or his assigns.

Appeal from court of common pleas, Allegheny county.

Action by Peter Swint and J. E. Swint, for the use of J. E. Swint, against the McCalmont Oil Company, to recover royalties alleged to be due the use plaintiff on certain oil leases. From a judgment for defendant, plaintiffs appeal. Affirmed.

James T. Buchanan and J. L. Ritchey, for A. Leo. Weil and Chas. M. appellants. A. Leo. Thorp, for appellee.

WILLIAMS, J. Peter Swint was the owner in fee simple of a farm in Allegheny county, containing about 120 acres. J. E. Swint was his son. In 1885 he was of full age, and living with his father on the farm. It is alleged by him that he was associated with his father in the cultivation of the soil under some sort of verbal agreement, but no distinct contract between them is shown. In 1885, Peter Swint made a lease for oil purposes of part of his farm to Hunter. Two years later, he leased the whole farm, subject to the prior lease of Park to H. H. Locke. For some reason not distinctly shown by the evidence, J. E. Swint, the son, was joined with his father as a co-lessor in both leases. The royalty reserved in the leases was one-eighth part of the oil produced, which was to be delivered to the lessor in the pipe lines of the company transporting the oil from the wells. It appeared that the lessees delivered the oil in the pipe line for the royalty to the lessors, and that the father, the owner of the land, and his vendees after him, have taken possession of the entire one-eighth of the oil so delivered as royalty, and receipted to the lessees therefor. It further appears that J. E. Swint gave no notice, prior to the bringing of this suit, of his claim to have onehalf of the royalty paid to him, or of any objection on his part to the payment of the whole royalty to his co-lessor. In this action he now seeks to recover one-half of the royalties, regardless of the fact that they have been paid to the holder of his father's title, and without objection on his part.

The first question arising upon these facts is: May the lessee show the circumstances under which the plaintiff signed the leases, as a reply to his demand for one-half of the rent reserved? This would not amount to a denial of the landlord's title, but to a denial that, as to the son, the lease created that relation. If he signed as a subscribing witness, but put his name in the wrong place; if he signed to show that his father, who was old and infirm, had not been misled by the lessee, but had understood the nature and extent of the contract; or if he signed as the result of any mistake as to the necessity or effect of his signature accompanying that of his father, there could be no good reason why the fact should not be known, and the effect given to the ex

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