Oct. '87, 219. October 4, 1887. purchase by Nolan was in reality for defendants. They also obtained other lands and leases adjoining by purchase and by lease, and in the early part of June began pumping oil from the well already drilled, which proved to be a good During this year and after they had acquired plaintiff's interest, the defendants drilled another well on this lease, which also proved to be a good well. Foster et al. v. Weaver. Fraud-Tenants in common of oil lease-One tenant in common can recover the value of his portion of the oil tortiously taken by his cotenants without reimbursing them for the cost of production. Where the owner of land has been deprived of the same tortiously or by fraud, and after recovery brings suit for mineral taken from the land and converted by the trespasser while in wrongful possession, he is entitled as damages to the value of the mineral in its changed and improved condition as a chattel, and not to its former value before it was extracted from the land. The fact that the wrong was committed by cotenants of the plaintiff, who continued to use the property after tortiously dispossessing the plaintiff, as it probably would have been used if they had all remained in possession, does not mitigate the tort, nor qualify the ordinary rule of damages. Error to the Common Pleas of Forest County. Trespass, by Josiah Weaver against Jacob Foster and L. Simon. By agreement the case was referred to L. W. Wilcox, Esq., as referee, under the Act of May 14, 1874, who found the following facts : The plaintiff and defendants became tenants in common in an oil lease for 50 acres of land in Harmony Township, dated November 1, 1884, at one-eighth royalty, for a term of twenty years, each owning a one-third interest. By the terms of the lease, a well was to be completed within six months and a second well was to be commenced within six months from completion of the first, if productive, and operations were to be carried on diligently and to the best interests of both parties to the lease. In the early part of 1885 these lessees began operating for oil under this lease. The plaintiff lived in New York and the defendants were oil operators and had charge of the drilling. About the middle of March, 1885, an oil bearing sandrock was found, and oil in paying quantities, and the prospects were favorable for a good well, and the defendants ordered the well shut down and drilling stopped, and the well was reported to those inquiring to be a failure. About six weeks after this, one of the drillers, named Nolan, at the suggestion of the defendants, went to New York to purchase plaintiff's one-third interest, and reported to plaintiff that the well was a failure and the prospects for oil were poor, and succeeded in getting the plaintiff's interest for $500, which was less than the plaintiff had paid out, and a conveyance was made to Nolan dated May 11, 1885. In a few days afterwards Nolan conveyed the same interest to the defendants for $600. This well. Early in 1886, the plaintiff hearing of the oil developments and learning that the defendants were the owners of his interest went to them and tendered the $500 paid him by Nolan, and demanded a reconveyance of his third interest and his share of all the oil produced, which was refused. During the year following, the defendants drilled other wells, which proved even more productive. Some efforts were made by the plaintiff and defendants to come to some agreement. The defendants offered to reconvey to plaintiff and pay his share of oil if he would pay his share of all the expenses of operating, and also one-third of the balance due on a leasehold mortgage they had given on this and other leases of defendants, the plaintiff's share of which would amount to about $200. This the plaintiff refused to do. In April, 1887, he had the defendants and Nolan arrested for conspiracy, and was about to bring an action of ejectment or suit in equity when it was finally agreed that the plaintiff should pay defendants what they had paid Nolan and they should give him possession of his one-third interest and reconvey to him, and the right of defendants to deduct one-third of the expenses and costs of production from the proceeds of plaintiff's one-third of the oil already produced was left unsettled and to be determined according to the rights and equities of the parties in some form of action, the same as if the plaintiff had recovered possession by adversary proceedings. This arrangement and the reconveyance to plaintiff of his interest was made on the 4th day of June, 1887, and for his share of the oil up to that date this suit was brought. The sales made by defendants to the pipe line company were taken as giving the correct price of the oil. The proceeds of the one-third of the oil up to June 4, 1887, was $4596.41, and the one-third of the costs and expenses of operating, including carpenters, rigs, boilers, engines, casing, tubing, tanks, torpedoes, expenses, pumping, superintending, etc., amounted to $4874.92. The expenses exceeding the receipts from oil. While the defendants practically admit that Nolan was their agent, they deny their responsibility for what he stated without their knowledge or authority and also deny that they were guilty of actual fraud. There was really no dispute upon the facts. The testimony, affidavits, etc., in the criminal proceedings were treated as the evidence in this Upon these facts the referee found for the plaintiff in the sum of $4644.39, and judgment having been entered thereon in accordance with the stipulation contained in the agreement of reference, the defendants took this writ, assigning as error the decision of the referee. case, from which the referee was to decide the | after recovery brings suit for mineral taken from facts. the land by the trespasser, while in wrongful possession, and converted to his own use, is the plaintiff entitled as damages to the value of the mineral so taken, in place, or the value in its changed and improved condition as a chattel?" In other words, is the wrong-doer entitled, in such suit, to recoup from the value of the mineral, as a chattel, the expense of mining or producing it? The mere statement of the proposition, in this form, suggests the only answer that can be given, unless it is the policy of the law to make the way of the transgressor easy and secure. In the Supreme Court the case was submitted upon the paper-books without oral argument by T. F. Ritchey, for plaintiffs in error. S. D. Irwin, W. M. Dame, and W. K. Jennings, for defendant in error. The relation of the parties to each other, as co-tenants of the lease, and the fact that two of them, after fraudulently dispossessing the other, may have continued to use the property as it probably would have been used if they had all remained in possession, does not mitigate the tort, nor qualify the ordinary rule of damages. Co-tenants are bound to respect the rights of each other quite as much as if they were strangers in title. We find no error in the conclusions of the learned referee. Judgment affirmed. January 3, 1888. THE COURT. There is no question as to the correctness of the learned referee's findings of fact. The sole contention is as to the law applicable to the undisputed facts clearly and concisely stated in his report. The most important of these is, that defendants below, being tenants in common with plaintiff of an oil lease, conspired with one of their employés to obtain his interest in the lease at an undervalue, and by gross deception and fraud accomplished their object. As soon as he discovered the fraud that had been practised upon him by his cotenants, he tendered them the consideration he had received and demanded a reconveyance of his interest. Efforts to compromise resulted in an agreement that they would reconvey the same and reinstate him in possession upon his paying the amount they had expended in fraudulently procuring his interest in the lease. The right of defendants below "to deduct one-third of the expenses and costs of production from the proceeds of plaintiff's one-third of the oil already produced was left unsettled, and to be determined C. P. No. I. according to the rights and equities of the parties, in some form of action, the same as if plaintiff below had recovered possession by adversary proceedings." This action of trespass was brought to determine the disputed matter thus excepted and reserved for future determination. The real question, therefore, before the referee was whether defendants below were entitled to deduct from the proceeds of plaintiff's share of the oil produced, while he was fraudulently dispossessed, a proportionate part of the expenses incurred by them in producing the oil during that period. According to their agreement, as found by the referee, that question is to be determined "as if plaintiff below had recovered possession by adversary proceedings." As to the measure of damages, therefore, the compromise, under which the reconveyance of his interest in the lease was made, cannot operate as a condonation of the fraud, because the effect of that fraud on the question of damages is expressly excepted by the terms of the agreement. As well stated by the referee the question is this: "When the owner of land has been deprived of the same tortiously, or by fraud, and J. D. B., Jr. Common Pleas. April 21, 1888. Munyan v. Jones. Costs-Service of subpæna-It is not requisite for a subpoena to be served by a sheriff or constable in order to be taxed as costs-Amount allowed for service-Act of April 1, 1887. Appeal from taxation of costs by prothonotary. On taxation, plaintiff claimed for service of subpoenas by himself or by his counsel's clerk. The prothonotary allowed the sum of fifty cents for each witness served. Defendant objected and appealed on the ground that as thirty of the services were prior to the Act of April 1, 1887, the fee was twelve and half cents, and for those since the Act, fifteen cents each. William C. Hannis, for appellant. A constable is entitled to the same fee as the sheriff. Coleman v. Hess, I Brown, 274. In Philadelphia prior to Act of April 1, 1887, the fee was twelve and one-half cents. Act of February 22, 1821, 3, 7 Sm. L. 369. Since the Act of April 1, 1887, the fee is fifteen cents. J. Alexander Simpson, contra. THE COURT. The plaintiff is entitled to only | ary 22, 1821 (7 Smith's Laws, 368), which twelve and one-half cents for each service made allowed for "advertising expenses" a fee of before April 1, 1887, and fifteen cents for each $2.25; and the substituted expression of the service since. The appeal is sustained and the Act of 1887 means the same. taxation reduced in accordance with this opinion. Courts have uniformly held it to be illegal and extortionate to deduct any charges from the fund for which there is no express statutory authority. Wall v. Lloyd, 1 S. & R. 323. Borie v. Leeds, 8 Phila. 353. Patton's Est., 2 Parsons, 103. Krouse v. Hart. Sheriff-Taxation of sheriff's costs-Act of the custom to charge for advertising beyond It is no answer that it has for some years been April 1, 1887 (P. L. 15)—Watchmen-Legal what the fee bill expressly allows. "No custom meaning of "day"-Postponed sale-Prepar- or practice however ancient will justify a charge ing advertisement of goods for sale-The not recognized by statute." sheriff is only entitled to charge $2 for each twenty-four hours his watchman is on duty, and $2.50 for preparing each advertisement of sale. Appeal from prothonotary's taxation of sheriff's costs. The following facts were agreed upon: Execution issued January 14, 1888. The sale was originally advertised for January 23, 1888, but was postponed by agreement of all the parties in interest until January 28, on which day the sale occurred. The sheriff claimed $56 for watchman's fees for 14 days, being $4 per day. Plaintiff objected, claiming that the same should be $2 per day. The sheriff also claimed $8.50 as costs for printing and posting bills, which plaintiff disputed on the ground that there was no necessity for the second set of bills, and that the sheriff is not entitled to more than $2.50. The prothonotary allowed the costs claimed by the sheriff, whereupon plaintiff appealed. James S. Williams, for plaintiff. This was an execution against personal property. The Act of April 1, 1887 (P. L. 15), provides that a watchman's fee shall be "for each day actually on duty two dollars." The natural and ordinary, and therefore statutory meaning of the word "day" is a period of twenty-four hours, extending from one midnight to the succeeding onel 2 Blackstone Com. 141. Commonwealth v. Hagan, 9 Phila. 574. him), for sheriff. Prior to the Act of 1887, whenever it was found necessary to employ watchmen, the practice was to charge $5 per day ($2.50 to each man for twelve hours). The present Act has changed the law but little, and contemporaneous practice is a circumstance which should be considered in interpreting the law. Dwarris on Statutes, 137. That there can be no fraction of a day is a legal fiction, and does not apply where common sense and justice sustain the propriety of allowing the fractions. Bouvier's Law Dictionary, 687. The true legal definition of what constitutes a "day's work" is to be found in the Act of April 14, 1868 (Purd. Dig. p. 1009, pl. 1). It has been the uniform and unquestioned practice of the sheriff of this county, as far back as we can learn, to charge for each set of handbills the sum of $4.25. Of this amount, the sum of $2.50 is returned to the county for preparing the advertisement. The balance is retained for printing. The Act of June 12, 1878 (Purd. Dig. p. 778), which applies to counties where the sheriff is not a salaried officer, but is personally entitled to the fees of the office, provides that the fee for advertising goods for sale "shall be $2.25." But in Kane v. Commonwealth, 8 Norris, 522. the Act of April 1, 1887 (which applies to the The Act of April 14, 1868, fixing the number case of a salaried sheriff), the fee is for "preparing of hours which, in the absence of an express advertisement of goods for sale." contract, constitute a day's labor, has no appliThe words "each case," in the Act of 1887, cation. Prior to 1887 there was no Act allow-mean each case of sale. If it was meant to allow ing a fee for watchmen. The Act of 1887 was passed for the benefit of the sheriff; and the legislative intent plainly was to allow him, in a case requiring the employment of a watchman, to charge a fee of $2 for every natural day during which he is actually on duty. The Act of 1887 allows the sheriff for preparing advertisement of goods for sale in each case $2.50." Prior to the Act of 1887 the sheriff's fees in Philadelphia were regulated by the Act of Febru but one fee for any number of sales under one Murfree on Sheriffs, sec. 1077. March 17, 1888. THE COURT. We see no reason why the "day" spoken of in the Act of April 1, 1887 (P. L. 15), should be considered to have any other significance than its ordinary one of twenty-four hours. Custom, agreement, or special legislative enactment, frequently varies the interpretation of the word, but in the present case we have no concern with custom or agreement, and, if there is any qualification of it, it must be shown in legislative enactment. The duty of a watchman, if necessary, should be continuous to be of any avail, and it must have been for this that the law intended to provide, and not for a limited number of hours out of the twentyfour. The Act of 1868, declaring that eight hours shall constitute a day's work in the absence of a contract, in certain cases, we do not think has any bearing upon an Act regulating the fees to be paid to the sheriff and his deputies. Nor does the charge here made appear to be founded upon that Act, for, if it were, twenty-four hours would constitute three days' work instead of two, which are here charged for. The exception to the allowance of all over $2 a day of twenty-four hours to a watchman is sustained. While we think that in the sale of personal property, the Act of April 1, 1887, intends that the charge "for preparing advertisement of goods for sale" should be construed as the equivalent of "advertising goods for sale" in the Act of June 12, 1878; the legislation in regard to the advertisement of sales of real estate is different in that as in other Acts, and shows that the actual expense of printing hand-bills and advertisements are not a part of the sheriff's fees, but are properly collectible by him in addition thereto, and are not chargeable to the city. Opinion by BIDdle, J. Orphans' Court. G. S. P. February 18, 1888. Kountzleman's Estate. tenth of the residue of his estate to trustees— The fee bill of 1887 allows the sheriff "for preparing an advertisement of goods for sale in each case, $2.50." In the present case he charged $4.25, being $1.75 in excess of what would seem to be allowed by the fee bill. The extra charge "in trust to place and continue the same at interest is for printing the advertisement. . and to pay the interest thereof unto my daughter Amanda for her sole and separate use upon her separate receipts without the control or interference of any husband she may have or take, for and during all the term of her natural life, and from and immediately after her decease then in trust for the only proper use, benefit, and behoof of such person or persons as would be entitled to the same by the laws of the Commonwealth of Pennsylvania, if my said daughter had surde-vived her mother and husband, if any she may have, and died intestate, seised, and possessed," etc. In construing the new Act of Assembly of April 1, 1887, entitled "An Act to fix the fees of sheriffs in counties containing over 300,000 inhabitants, and of those performing duties under them, and the manner of collecting and paying the same," we think it of the highest importance that it should be definitely and positively clared that no fees will be allowed except such as are specifically authorized by it. The whole object of this minute division of fees, of their publication and of the penalties attached to any violation of the law regarding them, is to enable a suitor to know precisely what he has to pay, and to give him redress in case any illegal fees are exacted of him. The moment we begin to declare that the Legislature meant what they did not say, and that the fee bill which they have established does not cover all the charges which can be made under it, we leave the citizen without knowledge of his rights and powerless, therefore, to assert them. At the audit it appeared that at the date of the will, Amanda was neither married nor in contemplation of marriage, and that she had been twice married and survived both husbands and her mother. It was claimed on her behalf that the trust was merely a separate use, and that, by the death of the mother, the parties to take in remainder became the entire body of the heirs of Amanda, and that therefore by the application of the Rule in Shelley's Case she became entitled to the entire estate. The Auditing Judge (HANNA, P. J.) held As we find no item in the fee bill justifying any otherwise, and awarded the fund to the trustee charge over $2.50 for this service, it is disallowed. to hold upon the trusts of the will. To this The sale having been postponed in this case by finding the cestui que trust excepted. The the agreement of all the parties in interest, there- trustee's account embraced two pieces of real by imposing on the sheriff the necessity of "pre-estate at a valuation. These were purchased by paring another advertisement" we think an addi. tional charge of $2.50 is allowable. The exception, therefore, to all over $5.00 for this service is sustained. the trustee under foreclosure sales (though this fact was not adverted to at the audit, the accounts having been agreed upon as correct). Upon this point the Auditing Judge held that the accounts were erroneously stated and directed | only one of its functions should have come into them to be corrected accordingly. To this find- play. One purpose was to protect the daughter ing both parties excepted. Robert H. Neilson, for the cestui que trust. It has been expressly held that when the remainder is "to such persons as would be entitled under the intestate laws," the words are equivalent to heirs. Dodson v. Ball, 10 Sm. 492. Williams's Appeal (No. 2), 2 Norris, 377. If the saving clause had been, "if she survived her husband," the falling of the separate use would have caused the remainder to coalesce with the life estate. Yarnall's Ap., 20 Sm. 335. Why then should the proviso of surviving the mother make a different rule? The mother is dead, there can never be another mother, and the parties who take at Amanda's death are Amanda's heirs. In one case where the remainder was to persons who would take under the intestate law of another State than that where the real estate was situated, the Court held that this did not prevent a coalescing of the life estate with the re mainder. Tucker's Ap., 25 Sm. 354. Though the English rule is different, it must be remembered that these words of distributive modification always prevent the operation of the Rule in Shelley's Case. Greenwood v. Rothwell, 5 M. & Gr. 628. While in Pennsylvania the rule is the reverse. Physick's Ap., 14 Wr. 128. The purpose of the trust in this case is (1) separate use, which of course falls; (2) to prevent the husband from sharing in the estate in remainder, which falls with the separate use (Yarnall's Ap., supra), and (3) to prevent the mother from so sharing, which ought, surely, to fall with her death. Courts will not sustain a trust after its object has failed. Megargee v. Naglee, 14 Sm. 216. Rea v. Trust Co., 16 WEEKLY NOTES, 48. The Auditing Judge erred in directing the accountant to strike out the items of real estate, for the reason that the real estate in question remained personal property in the hands of the against the control or the debts of her husband, but that was scarcely the paramount intent, because the daughter was neither married nor contemplating marriage when the will was written. The other purpose was to protect her against herself and to preserve the estate unimpaired for the remaindermen. The trustees were specially directed to invest the personal estate, and they were as fully charged with the control of the real estate, These duties were to continue during the life of by the direction to pay over the rents and profits. the daughter; and that they rendered the trust an active one is shown by the decisions in Bar-' nett's Appeal (10 Wr. 392); Bacon's Appeal (7 P. F. Sm. 504); Ashhurst's Appeal (27 Id. 464). In the last two of these cases the trust was sought to be set aside, because the first takers had become discovert; but it was held that the trust continued, notwithstanding the discoverture. In Lightner's Estate (11 WEEKLY NOTES, 181) the trustee was ordered to make investments and to pay the income to the testator's daughter during life, and to convey the estate at her death to her heirs. The active duties which were involved in the trust compelled the vesting of the legal estate in the trustee, and the daughter's interest remaining equitable, was prevented from coalescing with the legal estate in remainder. Under that authority this trust could not be held to be executed, even if the gift over had been without qualification to "such persons as would be entitled to the same by the laws of the Commonwealth," provided the daughter had died intestate; words which, in Dodson v. Ball (10 P. F. S. 492); Yarnall's Appeal (20 Id. 335), and Tucker's Appeal (25 Id. 354), were said to be equivalent to heirs and next of kin. The gift, however, was only to the members of these classes who should remain, after the mother and husband of the first taker had been excluded; and the persons so selected would necessarily take as purchasers. The fund is personalty, and in a gift of personal estate, the husband is an "heir" of his wife. (Eby's Appeal, 3 Nor. 241. See also Gibbons v. Fairlamb, 2 Casey, 217.) The exceptions to the ruling of the Auditing Judge, on this point, are overruled. The purchase under foreclosure sales of the real estate upon which the mortgages belonging to the trust were secured, was an investment, and was properly so treated by the trustees. The point that the property was to be accounted for as personalty, was not, however, made before the Auditing Judge. The adjudication will be modified in this particular, and subject to this change, is now confirmed. |