Duffield v. Hue , 129 Pa. 94 ( 1889 )

Opinion,

Mr. Justice Clark :

This is an ejectment, brought in the Court of Common Pleas of Warren county by C. C. Duffield against F. P. Hue et al., to recover the possession of a lot of ground containing tw.o acres, more or less, in Clarendon. The lot is conceded to have been part of tract No. 497, in Mead township, of which tract C. R. Elston was the owner, and this is the common source of .title. On January 23, 1880, Elston’s heirs leased part of tract 497, including the lands in dispute,'to Thomas and Henry Brown, for oil-mining purposes; and on January 20, 1882, the Browns sublet to F. M. Pratt. The whole controversy arises upon the proper construction of the last mentioned lease. The plaintiff’s contention is, that although, upon a literal and strict reading of this lease, it might appear merely to designate certain sites upon which Pratt was privileged to operate for oil, yet his rights really extended to all that part of tract 497 covered by the Elston lease of January 23,1880, and to all the underlying minerals. In order to establish this, he introduced parol evidence of the declarations and admissions of Henry W. Brown, made subsequently to the date of the Pratt lease, as to the extent thereof, and by this means sought to modify the descriptive parts of the lease so as to include the mill-yard, which is the premises in dispute. Duffield, the plaintiff, offered himself ás a witness, and called F. M. Pratt, both proposing to testify as to matters occurring between them and Henry W. Brown, who died prior to the bringing of this suit. The learned judge of the court below, admitting the evidence which exhibited the situation of the parties with reference to the premises at the time the lease was made, rejected all parol proof offered for the purpose of showing what lands, not embraced in the description, were intended to be included in the lease; and also the evidence of Pratt and Duffield as to ’matters occurring in the lifetime of Brown. The first seven specifications of error are directed to these rulings of the court.

The lease from Brown to Pratt, as we have said, was made January 20, 1882, and the plaintiff has succeeded to the rights of Pratt and Duffield. After the assignment of Pratt’s interest to Duffield, the interest of the Browns was sold at sheriff’s sale, and purchased by one Rosenzweig, who on January 16, 1886, executed a lease to the defendants, Hue and Gerould. Thus it appears that the rights of the present parties are wholly dependent upon the terms, conditions, and proper construction of the lease from the Browns to Pratt, dated January 20,1882. H. W. Brown died about the month of August, 1885.

The act of May 23, 1887, provides that “ where,” etc., “ any party to a thing or contract in action is dead,” etc., “ and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record, who represents his interest in the subject in contro%rersy,” neither “ any surviving or remaining party to such thing or contract, nor any other person -whose interest shall be adverse to the said right of such deceased party, shall be a competent witness to any matter occurring before the death of said party,” etc., “ unless,” etc. The thing in action here is the plaintiff’s right to the possession of the premises in dispute under the lease of January 20, 1882. W. H. Brown was party to that lease, and his right, under and subject to it, by his own act or the act of the law, has passed to the present defendants, who represent his interest in the subject in controversy; and, as Brown is dead, it would appear to follow from the provisions of the act of May 23, 1887, however it might have been before the passage of that act, that Pratt, the surviving or remaining party, was not a competent witness to any matter occurring before Brown’s death. The policy of the statute is to prevent inequality, and it is upon the ground of policy, and not interest, that Pratt is incompetent.

It does not follow, however, that in all eases, if a party derives his title through or under a deceased grantor, however remote, neither party can be a witness; for this, in the trial of an ejectment, would be a practical exclusion of the parties; it is where a party to a thing or contract in action is dead, etc., and another represents his interest in “ the subject in controversy.” This rule of incompetency cannot arise until the thing or contract in action exists; for a person cannot be supposed to become a party to a thing or contract in action, until after the thing or contract in action has come into being. The subject in controversy in this instance originated in the execution of the lease ; and the plaintiff’s right under that lease, as we have said, is the thing or contract in action. It was Brown’s right in his lifetime, as it is the defendants’ right now, to stand upon the terms of that lease; and as Brown’s interest then was adverse to the plaintiff’s claim now, to wit, that the lease did not set forth the contract of the parties, the policy of the statute must be held to apply; and, as Pratt’s ineompetency does not arise out of his present interest, and Duffield was himself a party to the suit, the releases were of no avail to remove their disqualification.

Nor do we think the court erred in rejecting the parol evidence of other witnesses offered for the purpose of showing, in modification of the description, what, land was intended to be included in the lease. This evidence on part of the plaintiff consisted largely of loose declarations of H. W. Brown, as to what lands had been leased to Pratt. The learned judge of the court below, to whom the case was referred under the act of 1874, did not find any fraud or mistake in the making of the lease; nor is there any evidence to support it if there had been any such finding. Indeed, we do not understand that either fraud or mistake is alleged. It was competent, of course, by parol evidence, to ascertain the nature and peculiar qualities of the subject of the contract, and to show the situation of the parties with respect to it; but, as there was no latent ambiguity in the contract, its construction was for the court. The lease itself is not only the best, but the only, evidence of the agreement of the parties ; for whatever Brown may have said at various times as to the extent of the lease, and whatever his motives may have been for so saying, its actual extent must be ascertained from the language of the lease, which must be assumed to contain the deliberate and final engagements of the parties. The lease consists partly in a printed formula, prepared for oil leases on the tract 498, and partly in written words inserted therein; and the printed number, 498, it is conceded should have been changed to 497. It is undoubtedly true that in such case the written words are entitled to have greater effect in the interpretation than those which are printed, for the written words are the terms selected by the parties themselves to express their meaning in this particular case; whereas the words of the printed form are of a more general character, originally chosen for application to similar subjects only, and frequently, as in this case, are, by necessary alterations and changes, made to express, as near as may be, the intention of the parties: Grandin v. Insurance Co., 107 Pa. 31; Haws v. Association, 114 Pa. 431. Whilst, by the printed form, the leased premises are described as “ a certain lot or piece of land situate,” etc., it is plain from the written clauses that the premises were to be operated at certain designated points or “ sites ” only. These sites are specifically described as follows: “ Each site situated on lots numbered, respectively, on map, one fifty-one Mill street, one ninety-three Center street, and one sixty and one thirty-four on Elston street; and also sites for three wells, situate, per plot No. one, south side of Philadelphia & Erie Railroad, to be designated and mutually agreed upon by both parties.” The rights of Pratt as lessee for oil-mining purposes are plainly restricted to these sites. It is provided that he is to have the privilege of drilling other wells on the same premises only in the event that the Browns might determine to have more wells drilled, and then the operations were to be conducted on the same terms. Whilst the lease, in some sense, may be said to cover the entire lot for oil-mining purposes, yet it is plain that operations were restricted to the sites mentioned.

Whatever oil might be produced from the premises leased at these points, the lessees had a right to produce; but they had no right of possession, for any purpose, at any other place within the bounds of the territory described. If the lessors, or others acting under them, by boring other wells, lessened this production, or otherwise disturbed or interfered with the rights of the lessees, they may have had their remedy, but not in this form; for by no construction of the contract in question can Pratt be supposed to have had any right of possession, for any purpose, in any part of the premises in dispute; and Duffield, in his right, has therefore no standing to recover in ejectment.

Upon the question of forfeiture, we think the views expressed by the court are correct: “ Whatever right the lessors may have had to insist on the forfeiture of the Pratt lease by reason of failure to put down the seventh well within the stipulated time, was waived by their acquiescence in the failure to put down two or three of the preceding six wells within the stipulated time.....The lessee might well believe, from such acquiescence, that strict performance of the terms of the lease as to the time of putting down the wells would not be insisted on, and that a reasonable notice should be given before a forfeiture could be claimed on account of failure to sink the seventh well.” The writing of January 20, 1882, from what has been said, must be treated as a lease for production of oil, and not a sale of the oil or of the land, and the defendants had a right to stand upon their title.

The judgment is affirmed.