Thompson v. Ridelsperger

Opinion,

In the appellee’s paper-book it is alleged that the appellants omitted to print a part of the offer of their deed, and that the omitted part was in these words: “ The conveyance is made subject to the lease in question of three acres.” It is further said by the counsel for the appellee, that when the defendants offered their deed in evidence the counsel making the offer stated in open court that the deed was subject to the lease in question, and that this was included in the offer, and placed *423on the record. The counsel for the appellants, in their reply to the appellee’s argument, deny this statement, and assert that one of the counsel for the appellee, at the time the defendants offered their deed, made a side-remark in the words above quoted, and that the words crept into the stenographer’s notes without their knowledge, and that they were no part of their offer. They further call upon the counsel for the appellee to deny, if he will, that he was the author of the words in question. It is lamentable and reprehensible that there should be such a conflict of statements between counsel. The offer of the deed was not objected to, and hence there is no bill of exception which can settle this question of veracity, and we can have no official knowledge of the truth of the matter.* The subject of the controversy is not trivial, but vital. If the deed was strictly subject to the lease in question, the defendants took their deed with notice and were subject to the duty of inquiry, and were chargeable with knowledge of whatever the inquiry would have disclosed. The court below assumed that this was so, and the appellants urge that this assumption was error. In consequence of this assumption the court withdrew the case from the jury, and instructed them to find a verdict for the plaintiff. If it was error to give such binding instruction to the jury, the judgment must necessarily be reversed.

In solving the question whether the defendants took their title expressly subject to the lease in controversy, but little, if any, consequence can be attached to what appears in the stenographer’s notes. There is merely a statement by the stenographer that the deed was subject to the lease. The stenographer is not a witness; he was not of counsel for either party; he had no authority to bind either party by anything he might say. The offer of the deed was an offer to give a deed in evidence, and nothing more. The deed was received without objection, and the whole purpose of the offer was then subserved. It is incredible that the defendants’ counsel then proceeded to give away their whole case by the entirely unnecessary and uncalled for declaration that the deed which they offered was subject to the lease which was the subject of *424the controversy. Stenographers are not infallible. They are just as likely to make mistakes as other persons; and when they are merely making a declaration of their own as to a fact occurring in their presence or hearing, not being under oath, and not being examined or cross-examined, and the truth of their statement is denied by the party sought to be bound by it, as a matter of course such statements cannot be regarded by the courts as of any weight in determining the contention. But, apart from all this, the deed must speak for itself; and if, when examined, it corroborates the stenographer’s statement, the party affected will be bound by it, not because of what the stenographer said, but because of what the deed itself declares; and, on the other hand, if it does not corroborate the stenographer, it will scarcely be contended that the remark of the stenographer will outweigh the language of the deed.

If, now, we recur to the deed, we find that it contains these words: “ This conveyance is made subject to the following leases for oil purposes, viz.: Gorman Bros., six (6) acres ; Collins & Cochran, six (6) acres; Ferguson et al.,nine (9) acres; and J. Beaumont, three (3) acres.” There is no other language but this in the entire deed on this subject. The deed is made by C. A. Comen and wife, D. Comen and wife, and Peter P. Comen and wife, to W. D. Ridelsperger, L. M. Ridelsperger, H. P. Ridelsperger, and C. H. Shurmer; is dated June 28,1889, and is for lot No. 528, containing 165 acres, more or less, and for part of lot No. 497, containing 37 acres and 140 rods, more or less.

Now, the lease which is claimed by the plaintiff as the source of his title is a lease dated March 25, 1882, made by C. A. Comen and D. Comen to C. G. Beaumont and J. B. Drake, for a lot or piece of ground in Mead township, Warren county, Pa., containing three acres, more or less, known as lot No. 53 of subdivision of lot No. 528. The name of J. Beaumont does not anywhere appear in this lease. In the deed the reservation is of a lease to “J. Beaumont, three (3) acres,” and that is all. There is no description of this lease in the deed. It is not referred to by its date or its place of record, nor by its number 53, nor by the number of the subdivision of which it is a part. In other words, there is no identification of the territory covered by the lease, and the name of the lessee is not the name *425of either of the two lessees of the lot in question, nor does the name of either of those two lessees appear in the lease that is reserved. Upon the face of the papers, the lease and the deed, it is impossible to say that the lease reserved is the lease in controversy. It was therefore error in the learned court below to say, as a matter of law, that they are identical. Whether or not they are identical is a matter which can only be determined by extrinsic testimony, and the credibility and force and meaning of that testimony is necessarily to be determined by the jury. They may be the same, but whether or not they are the same is not a matter of law but of fact, and should be determined by the jury, and not by the court. We therefore sustain the third, fourth, fifth, and sixth assignments of error.

We can hardly sustain the first assignment, as the offer included the act of the lessors in locating the lot so that the Beaumont and Drake well was upon it, and that they so agreed with the lessees; and, as such location would certainly bind the lessors, who could not claim a forfeiture, it might bind the present defendants, claiming under them. It would not be incompetent testimony, but yet it might not bind the defendants. That would depend upon what was the true location of lot No. 53, and, if not, then whether the defendants knew of the acts of the lessees in locating the well where it is, as being a location within the lines of lot No. 53. If the defendants had such knowledge at the time of or before the inception of their title, they would be bound by it; but the true location of lot No. 53 is very much in dispute. According to the testimony of the defendants’ surveyors it dqes not include the well, and, if that testimony is believed, the defendants would not be bound by the location of the well as a compliance with the terms of the lease, unless they had knowledge of the assent of the lessors to that location, and the acceptance of it by them as a compliance with the lease. It must be confessed that the knowledge of the defendants of the acts and declarations of the lessors in that regard before the inception of their title can scarcely be regarded as established J)y the testimony. Certainly it is not so established as to justify the court in deciding it. All the defendants testified that the Drake well was not within the lines of lot No. 53, as those lines are indicated in the lease, and that they did find a post corner, outside the church lot, start*426ing from which, and running the lines of the lot, the Drake well was excluded. If any proof of the location of the well as a performance of the condition by the lessees with the consent of the lessors, and accepted as such by the latter, was made in such manner as to give notice thereof to the defendants,- before their title was acquired or at the time of its acquisition, the effect of that proof would be necessarily for the jury under proper instructions from the court. But the case was not tried in that way by the learned court below. On the contrary, the court assumed that the defendants had notice when they purchased, that the well was erected within the limits of the lot 53, because they bought subject to the lease, and the well was already there with all its appliances, and in full operation. Of course, this would be correct if the well was within the true location of lot 53, but this is the very matter in dispute, and must necessarily be determined by the jury. We therefore do not sustain the first assignment, but do sustain the second and eighth; and the seventh and ninth are sustained, because, while the court affirmed the defendants’ first and third points, they took away all the effect of the affirmance by saying they were not material, and that the case must be disposed of according to the views of the court on the other matters mentioned in the charge. As these matters involved questions of fact which should have been submitted to the jury, we are of opinion the judgment must be reversed.

Judgment reversed, and new venire awarded.