Lulay v. Barnes

Opinion by Mr. Justice Green, We find ourselves quite unable to agree with the learned court below as to the principles upon which this case was tried. The most important of the rulings was that the fifth clause of the agreement between Anton Reiger and Adam Lulay was so vague and uncertain in its terms that it could not be enforced by a chancellor or by a verdict in ejectment. Entertaining this view the learned court in the general charge, and in answer to the defendant’s point, withdrew the case from the jury, and directed a verdict for the defendant. An examination of the agreement and the testimony impels us to a very different conclusion. The agreement being drawn by an illiterate German is, of course, crude, inartistic, and not by any means so precise and definite in- its terms as it should have been. But these defects are far short of that vagueness and uncertainty which renders an instrument void for that reason. The agreement was written in the German language. Two translations of it were given in evidence, one by the plaintiffs and the other by the defendant, but the differences are so trivial that either may be accepted as correct without varying the result. One aspect of the paper is beyond all dispute and is not questioned. That is, that one feature of the contract was a positive agreement by Reiger to sell to Lulay a designated tract of land containing one .hundred and twenty-eight acres, described by adjoiners only, — 343 — and having thereon erected a dwelling house, sawmill and part of a barn newly erected. Neither the state, the county, nor the township where the tract was located, is stated in the agreement, and if there was any dispute upon that subject, the ambiguity could only be helped by parol testimony which of course would be received for that purpose. But there is no dispute and both parties agree, that the tract was located in Susquehanna township in the county of Cambria, Pennsylvania, and that it was part of a larger tract of two hundred and sixty-four acres and seventy-seven perches, the equitable title to which was vested in the grantor Anton Reiger, the legal title being held by two men named Bergstresser living in Missouri. The other subject of the conveyance was a right to mine coal from another piece of property, and this is provided for in the fifth clause of the agreement and is the matter in controversy. In the plaintiffs’ translation the words are as follows, “ the coal right in the northern hill, so far as to the centre, between the southern and northern boundary, vests in the purchaser, and he has the right to dig the coal as his property, and to make a road to the coal bank over the shortest and most passable route.” The sixth clause relates to the same matter and should be read in this connection. It is in these words, “ Anton Reiger has likewise the right of access to the coal over the shortest and most passable route that will cause the least damage, on the southern side and if necessary prospect for coal, and to open a coal mine on the said purchaser’s Adam Lulay’s, property, but he is not allowed to take out coal over the middle.” It is perfectly clear by the fifth section of the agreement,, that Reiger sold to Lulay the right to dig coal as his, Lulay’s property, on another property than the one hundred and twenty-eight acres. There is no doubt, vagueness or uncertainty as to. that.. It was an absolute agreement to sell, in fact an actual sale,, under the phraseology of the fifth clause, of all the coal underlying the surface of the tract referred to, and it was a fee simple estate in the coal, thus severing it from the land on the surface. Nothing was left to ascertain but the identity of the tract underlaid by the coal. It was to be the “ coal right in the northern hill, as far as to the center between the southern and northern boundary.” Of course parol testimony was admissible to explain the ambiguity and such evidence was offered, — 344 — admitted and delivered, and a reading of it removes every vestige of doubt or uncertainty as to the exact location of the laud. Anton Reiger lived on the tract of one hundred and twenty-eight acres which he sold to Lulay. But that was only a part of .the whole tract of two hundred and sixty-four acres and seventy-seven perches of which he was the equitable owner. The remaining part of the whole tract contained one hundred and thirty-six acres and this was retained by Reiger. But there was coal on this part, and there was a “ northern hill ” part. That one hundred and thirty-six acres part extended in a north and south direction, and it was only necessary to run an east and west line through the center of that tract in order to determine the exact locality of the land under which the coal in place was sold. This was done, and on the trial a survejmr testified that he had run the east and west line through the center; a draft was made and given in evidence showing the lines of the whole piece by courses and distances; it immediately adjoined the one hundred and twenty-eight acres tract and showed a plain and natural connection between that tract and the part containing the coal. In connection with the testimony of Sheriff, the scrivener who wrote the agreement, the whole subject was rendered as clear as the sun at noonday, and every element of uncertainty as to the only matter of doubt in the case, to wit, the identity of the land intended, instantly vanished. Sheriff, after stating that he was with both the parties and that Reiger wanted to sell the one hundred and twenty-eight acre tract, that Reiger offered to sell the tract for $2,500, and that Lulay declined to give that much and that they separated in order to examine some other land, but afterwards returned to Reiger’s in the afternoon of the same day, was asked to state what occurred when they went back to Reiger’s. He replied, “Well when we got back to Reiger’s, then I told Reiger, that is Jacob Sheriff told Reiger, ‘Now Lulay is coming down; he wants to buy coal along with his one hundred and twenty-eight acres.’ I then told him, Reiger, ‘ you have a bank open — you keep that; now on the opposite side of the hill there is coal in that too.’ So after talking they agreed that Reiger should keep the coal where the vein was opened and Lulay would get the hill where no veins were opened, so that contract was made that he should get the coal right in that hill and the one hundred and twenty345 eight acres in land for $2,500. Then Reiger aslced me to write the agreement. Gentlemen, you must excuse me, I am not very plain in English. So I asked him where is the north and where is the south and where is the east and where is west, and I wrote the line for one hundred and twenty-eight acres as near as I can from the points of the compass, and this is the coal right. I wrote it in the northern hill. He told me that hill and I wrote it as was his understanding, and he told me himself that was the hill. Q. Reiger told you? A. Yes, Reiger told me himself the coal right in the northern hill through the middle between the southern and northern boundaries. So that means in other words — Defendant’s counsel— We object. Never mind what it means; you just tell us what they said. A. Well it was through the middle between the northern and southern boundaries, and the purchaser has the right to dig the coal as his own property, and to have the right to make a road to the coal bank, the shortest and most suitable route which can be made for hauling. Q. That was the understanding, was it? A. That was the understanding and so I wrote the agreement.” On cross-examination he testified, “ There is a steep hill on the south side and a big hill on the north side, and that goes west and that hill goes east, and when on top of that hill I asked him, ‘ where is north, where is south, where is east and where is west,’ so I could write the agreement, and I put the coal right in the northern mound between the northern and southern boundary, and the purchaser had the right to dig the coal on that hill as his property and to make a road the shortest way where he could make it suitable for hauling.” Again he testified^ explaining the draft to the jury, “ Here is the northern hill and that coal right goes to the middle between the northern and southern boundary. Here is the southern hill. The coal right in the northern hill is Lulay’s and in the southern part was for Reiger himself.” There was much more of the same kind of testimony from the witness. None of it was contradicted or impeached in any way, and to our minds it affords a most complete and satisfactory solution of the question as to the identity of the land, under which the coal sold by the agreement laid. It is really so extremely plain and simple that no extended argument or citation of authorities is needed in its support. The error of — 346 — the learned court below consisted in the wrong application of a correct rule of law that where a contract or other paper is so vague and uncertain that it cannot be interpreted it falls for that reason. But that principle has no application here because this contract in all its essential parts is neither vague nor uncertain. It is a clearly expressed agreement to sell a tract of one hundred and twenty-eight acres of land, and all the coal underlying another tract of land. In the description of the land overlying the coal there is an inadequacy of statement of identifying particulars, and the only necessity of the plaintiffs’ case was to supply this deficiency. This has always been allowed, and in this case the explanation was of the clearest and most satisfactory character. The whole case should clearly have been submitted to the jury on all the evidence, with instructions that if they found that the coal claimed by the plaintiffs was contained within the land described in the plaintiffs’ writ they wfere entitled to recover. We sustain the several assignments of error which relate to this subject. Adam Lulay the grantee in the agreement of sale which was dated June 10, 1871, had it recorded in the proper office on April 3, 1872. On the trial the plaintiffs’ counsel submitted their third point that, being properly recorded and indexed it was constructive notice to the world of his rights under the agreement of which the defendant was bound to take notice. The court below answered the point by saying that it was notice of any rights which Lulay had when placed on record, but when it was followed within a few years by a deed vesting a complete title to the premises in Reiger who continued for some seventeen years in the exclusive possession thereof before selling to the defendant the latter was not bound by such notice. We think this answer was erroneous as well as the answers to the fourth and fifth points of the plaintiffs for obvious reasons. The conveyance made to Reiger subsequently to the deed, was simply the conveyance of the legal title by the Bergstressers to Reiger for the one hundred and thirty-six acres adjoining the one hundred and twenty-eight acres sold to Lulay. The Bergstressers were not parties to the agreement of sale between Reiger and Lulay, and they were therefore not in a position to affect Lulay’s rights under that agreement by — 347 — any conveyance they might to make to Reiger. Consequently no such conveyance could deprive Lulay of the benefit of the recording of his agreement, as notice of all his rights under the agreement. As to the subsequent possession of the surface of the one hundred and thirty-six acres tract by Reiger, it was not in any degree adverse to the right of possession of the coal underneath the surface by Lulay and was therefore neither hostile, visible, notorious nor continuous. It was no possession of the coal whatever. The coal was severed from the surface by the agreement, and the estate of Lulay in the coal was a fee simple estate, which was entirely consistent with Reiger’s estate in the surface. Lulay’s recorded agreement was therefore notice of all his rights, legal and equitable, under that instrument, and its quality as such could not be affected by any conveyance made by anybody subsequently to the date of its record. The question of the effect of any such conveyance is an entirely different question, depending upon its own merits, but not capable of diminishing or changing the effect of the record as constructive notice to all subsequent purchasers or incumbrancers. Lulay had not only the title conferred by the agreement, but he had entered into full possession of the one hundred and twenty-eight acre tract in 1872, and had paid all the purchase money by the year 1874, and that purchase money included the price of the coal. Any purchaser from Reiger thereafter would be bound to examine the record for conveyances by him, and if lie had done so he would have discovered the conveyance of the coal in the agreement, and this would put upon him the duty of inquiry from the parties as to where the coal was located, and this would have led to the discovery of the actual facts. The learned court below seemed to think, and so charged, that Adam Lulay was bound to take actual possession of the coal, in order to preserve his title under the agreement, and this also was a mistake. A purchaser of land in fee simple may or may not take possession of his purchase at his pleasure. His title, if he has a good one, is just as perfect upth, or without possession. Of course his title may become affected by an adverse possession taken by a stranger if it has continued for twenty-one years and possesses all the other requirements of that kind of title, but there was nothing of that kind in this case. We therefore sustain the third, fourth, fifth and tenth assignments. — 348 — What was said by the learned court below in relation to the act of 1856 and its application to this case, we consider, was a mistake. That act, in our opinion, has nothing to do with the case. The right of Adam Lulay under the agreement was precisely the same as the right of any ordinary purchaser of lands by deed in fee simple. He held his title by the same kind of conveyance; his estate was a fee simple estate in the coal, he gave notice of it to all the world by placing it on record, he paid the purchase money in full, and he had not the least occasion to invoke the aid of the act of 1856 in the smallest degree. There are no facts in this case that bring it within the operation of any of the provisions of this act, and it was therefore error to make the rulings complained of in the sixth, seventh, eighth, ninth and fifteenth assignments, and they are all sustained. In March, 1873, the Bergstressers made a conveyance of their legal title to Anton Reiger of the one hundred and thirty-six acre tract, and to Adam Lulay of the one hundred and twenty-eight acre tract. In the latter deed nothing was said of the coal which was sold by Reiger to Lulay by the article of agreement between them. The learned court below held that the agreement was merged in the deed and all right to the coal was thereby forfeited. If this deed had been made directly by Reiger to Lulay it is not at all clear that such an effect would have followed, because the fifth clause of the agreement is, by its terms, substantially a present sale of the coal completed by the execution of the agreement and requiring no further conveyance to perfect it. But the deed from the Bergstressers was a deed from persons who were strangers to that agreement. They had no lot or parcel in it, and there is every reason to believe they had no knowledge of it as they lived in the state of Missouri. They had nothing to do with the coal as a distinct subject of conveyance. The only concern they had in the whole transaction was to pass the bare legal title to the land held by them, which they did by the two deeds in question. The consideration recited in the deed is $2,000, whereas $2,500 was the consideration named in the agreement. That which Reiger was to convey, if any conveyance were necessary, was the title to the coal. That was not done nor was it really necessary that it should be done. — 349 — How then can any legal inference be drawn that by the acceptance of the deed from the Bergstressers for the legal title to the surface of the one hundred and twenty-eight acre tract, it was intended to forego all claim to the coal from Reiger. We see nothing to justify such an inference. And as the deed was made.by a stranger to the agreement we can see no basis for the application of the doctrine of merger when there was no relation of contract between the grantor and grantee in the deed, and the grantor could not assume to convey the coal without intermeddling in a contract to which he was not a party and in which he had no interest. Upon strict reasoning there was no necessity for any other conveyance of the coal than that contained in the original agreement, and hence there was no basis for an inference other than that the deed for the legal title to the one hundred and twenty-eight acres was a part execution of the agreement, and as to the coal that the agreement had already executed itself. All the assignments except the fourteenth are sustained. We think the case must necessarily go to the jury to apply the parol evidence to the description of the land containing the coal. Judgment reversed and new venire awarded.