(234 Pa. 180)

GREENWICH COAL & COKE CO. v.

LEARN.

(Supreme Court of Pennsylvania. Jan. 2, 1912.)

1. GIFTS (8 49*)-LAND-EVIDENCE.

Evidence held to establish a gift of coal land from father to son prior to a conveyance of the coal by the father to plaintiff.

[Ed. Note. For other cases, see Gifts, Cent. Dig. 88 95-100; Dec. Dig. §'49.*]

2. FRAUDS, STATUTE OF (§ 129*) - REAL PROPERTY-GIFTS.

ment for services rendered by the father, was for the jury.

[Ed. Note.-For other cases, see Gifts, Cent. Dig. § 101; Dec. Dig. § 50.*]

8. ADVERSE POSSESSION (§ 116*)-INSTRUC

TIONS.

Where defendant claimed title to certain coal land under a gift from his father, and there was evidence that defendant had given to his father each year one-third of the grain grown on the land, but the evidence was conflicting as to whether the grain so delivered was treated as rent or for the father's services, the court properly charged that the running of limitations in defendant's favor depended on whether the jury found the grain was delivered as rent or for services, and refused to charge that the statute would not run in favor of defendant so long as he paid any of the proceeds of the farm to his father. [Ed. Note.-For other cases, see Adverse [Ed. Note.-For other cases. see Frauds, Possession, Cent. Dig. § 66; Dec. Dig. § 116.*] Statute of, Cent. Dig. §§ 287-292; Dec. Dig. 89. EVIDENCE (§ 121*)-OCCUPANCY OF LAND 129.*]

Where, after a father orally gave certain coal land to his son, the latter entered and for more than 21 years held exclusive possession of the property and made valuable improvements thereon, the gift was not within the statute of frauds.

3. MINES AND MINERALS ( 47*) - COAL

LANDS-GIFTS.

Where, at the time of a gift of coal land by a father to son, there had been no severance of the title to the coal, and the son took actual and exclusive possession of the surface, such possession carried with it actual possession downward perpendicularly through the various strata so as to confer title to the coal on the son as against a subsequent grantee of the coal by the father.

[Ed. Note.-For other cases, see Mines and Minerals, Cent. Dig. § 133; Dec. Dig. § 47.*] 4. TRIAL (8 295*) - INSTRUCTIONS - PREJU

DICE.

-DECLARATIONS-RES GESTE.

On an issue as to the character of defendant's occupancy of certain land alleged to defendant's declarations while in possession of have been obtained from his father by gift, the premises, together with the understanding of his neighbors, as to the character of his claim accompanying his acts, constituted part of the res gestæ and were admissible.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 303, 307-338, 1117, 1119; Dec. Dig. § 121.*]

Appeal from Court of Common Pleas, Indiana County.

Action by the Greenwich Coal & Coke ComJudgment for pany against Elias Learn. defendant, and plaintiff appeals. Affirmed. Action under the Act of June 10, 1893 (P.

On an issue as to whether defendant had maintained absolute possession of certain coal land under a gift from his father, plaintiff was not prejudiced by the court's failure to use the term "exclusive possession" in a particu-L. 415), on an issue to determine the title lar part of its charge, where there was nothing to coal under a certain piece of land. in the language used, or in any of the instructions, excluding the idea of the necessity for exclusive possession, and there was no doubt under the charge as a whole that the jury must have understood the necessity for defendant to have maintained an absolute possession in order to have established his claim. [Ed. Note. For other cases, see Trial, Cent. Dig. 88 703-717; Dec. Dig. § 295.*] 5. GIFTS (8 50*)—Nature of ARRANGEMENT QUESTION FOR JURY.

Where a father gave coal land to his son under an agreement that the father should receive one-third of the grain grown on the land by the son, and the evidence was conflicting as to the exact nature of the arrangement, the question was properly submitted to the jury. [Ed. Note.-For other cases, see Gifts, Cent. Dig. 101; Dec. Dig. § 50.*]

The plaintiff claimed under a deed from Peter Learn dated September 9, 1902. The defendant claimed under a parol gift from Peter Learn made in 1880 or 1881 followed by possession and valuable improvements made. The plaintiff proved its title by deed and rested. The defendant produced testimony that his father, Peter Learn, had the land surveyed and gave it to him, saying "to go and rid it up and put his buildings on it; it was his." And "go on and farm it; it is yours, but give me one-third of the grain." Prior to this Peter Learn had taken the timber brush and logs off a considerable part of the land, but the stumps had not been removed; and he said to his son, "I give it to The you, but you clear it out. son took possession, built a house, took out the stumps, improved the land, and has lived continuously upon the premises with his family ever since. For the greater part of the time the land was assessed in his name. and he paid the taxes upon it. The change of assessment was made at the request of Where defendant claimed certain coal land Peter Learn, who told the tax assessor that under a gift from his father, and there was his son owned the land. Peter Learn had evidence of an agreement by which defendant also made gifts of about the like number of delivered one-third of the grain grown on the land to his father, whether the delivery of the acres to other of his sons, and the defendant grain constituted a payment of rent, or a pay-produced a witness who testified that Peter

6. ADVERSE POSSESSION (§ 88*)-ELEMENTSPROOF PAYMENT OF TAXES.

Evidence of payment of taxes is admissible to show possession under claim of title. [Ed. Note. For other cases, see Adverse Possession, Cent. Dig. §§ 509-511; Dec. Dig. $ 88.*]

7. GIFTS (§ 50*)-REAL PROPERTY-PAYMENT TO DONOR-QUESTION FOR JURY.

*

* * *

ant, in which the term "exclusive possession"
was not used. (4) Part of the charge in
which the trial judge told the jury they
were to decide in what capacity defendant
occupied the land, whether as tenant or own-
er, and that if he occupied it as a tenant
the verdict would have to be for the plain-
tiff; that the plaintiff contended the delivery
of one-third of the grain by Elias to his
father "was an acknowledgment that he was
there only as a tenant, and that the father
still exercised control over that property, and
that of itself should be sufficient to find that
the defendant was not there claiming it ab-
solutely as his own." Adding: "This is re-
plied to by the defendant saying that inas-
much as a certain amount of clearing had
been done upon this farm, that in order to
even him up with the rest, he should make
some return.
He was not bound to
make any specific return, but nevertheless
one-third of the grain that he raised upon
that place should be given to his father in
payment of the amount he was relieved from
clearing on that property." After which the
court said, "You will be required to find
that fact so that you may have the entire
matter before you." (5) Part of charge
making reference to the testimony concerning
the assurance given by Peter Learn to Mrs.
Elias Learn that she could safely put her
money in the property, and adding, "That is
argued by the defendant as convincing, and
from what they say you will have no difficul-
ty in finding that Peter Learn did give abso-
lutely this property to Elias." (6) Part of
charge in reference to the testimony as to
tax assessments in which the court calls
attention to the fact that 53 acres were
transferred in 1895 from the name of Peter
Learn to that of Elias Learn. (7) Refusal
to instruct that if Peter after the date of the

had said to him: "That the other boys had to go into the woods and clear it. Elias was to give him one-third because part of his was clear before he went on." And "he said Elias owned it (meaning the land)." And further: "That Elias was to farm the land to suit himself as it was his own." To another witness Peter said that "he expected one-third of the grain that Elias raised because he had cleared part of the land for him." A host of witnesses were produced who gave testimony of declarations made to them by Peter Learn that the farm belonged to Elias as his own property, and that Elias was giving him one-third of the grain for the work that he, Peter, had done in clearing the land. When Elias desired to make improvements upon the property, he said to his father: "My wife has money, and I could get the money from her; but we have no deed for this property, and she don't like to use her money." To which Peter replied: "Do you think that I would give you a piece of land and turn around and take it from you? It is yours. Tell her to use her money." Other witnesses testified that in their presence Peter had said to Mrs. Learn to go ahead and put her money in the land; that it was Elias' property. In 1902 Peter Learn said to the agent of the parties to whom he subsequently sold the coal, referring to the land under which it lay: "At one time I owned all this; I gave them to the boys." And he then pointed out the various tracts and showed where the several boys lived. The agent, who was upon the land for the purpose of renewing an option which his principals afterwards took up, asked Peter how he could lease the coal under such circumstances, and Peter replied: "When I gave them this land there was nothing thought or said about the coal; we did not know anything about coal then." Testi-alleged gift, required a share of the proceeds mony was produced to show that Elias always and repeatedly referred to the land as his own, that it was generally known throughout the district as his property, and that before the purchaser paid for the coal Elias had notified it not to do so because his father did not have the right to sell. The plaintiff produced witnesses to rebut parts of this testimony, but the only evidence which attacked the exclusive possession of Elias was the fact that the father usually went upon the land each year at threshing time and received his one-third of the grain, together with the tax records showing that no land was assessed to Elias until the year 1892.

The court submitted the case to the jury. Verdict for defendant and judgment thereon. Plaintiff appealed.

Errors assigned: (1) Refusal to direct verdict for the plaintiff. (2) Refusal of judgment non obstante veredicto for the plaintiff. (3) A portion of the charge stating the ele

of the land, and Elias complied, "this shows
that Peter Learn still retained control over
the land and that he had not made an abso-
lute gift," adding, "If the jury find, there-
fore, that the payment of rent was imposed
on Elias after the gift or after he took pos-
session, the verdict must be for the plaintiff."
(8) Refusal to instruct that "the statute of
limitations would not run in favor of Elias
so long as he paid any of the proceeds of
the farm to Peter Learn." And answering,
"The answer to this point depends upon the
finding of fact." (9-12) The affirmance of
certain points submitted by the defendant in
which the word “possession” is used without
the word "exclusive" in connection therewith.
(13) The affirmance of a point of defendant:
"Time is a powerful factor in cases of parol
gift or sale of land. Equity is loath to undo
a gift or contract for one who has failed to
move for its rescission until passing years
have grafted new equities upon the trans-
action, until the donee is grown old, spent.

ment of a property long regarded as his, there was some evidence that the defendant own." The answer being, "This point is affirmed. It is the language of the Supreme Court in Sower v. Weaver, 84 Pa. 262." (14) The admission of testimony as to the general reputation in the community concerning ownership of the property. (15) The admission of testimony of declarations by the defendant while upon and in possession of the land in dispute, as to the character of his ownership.

[6] We see no error in the sixth assignment. All the cases hold that the payment of taxes is an element in the proof of possession under a claim of title, and if the plaintiff desired the court to call attention to the fact that the land was assessed to Peter Learn prior to the date mentioned in the instruction, it should have so requested. The assignment is overruled..

or later on would not necessarily fix the nature of the obligation. It might have been made after the defendant went into possession, independently of the gift, out of appreciation of the services performed by his father in clearing the property, without of necessity being a rent or acknowledgment of Peter Learn's continued control over the land; or it might have been a unilateral [7] Had the court affirmed the point. in contract made at the time of the gift. and the seventh assignment, it would have been yet not be a rent or in the nature thereof. equivalent to instructing the jury that the The repeated declarations of Peter Learn to delivery of the grain was the payment of a the effect that he had given the land to his rent, and that the verdict should be for the son, and as to the arrangement for the deplaintiff. Whether or not the one-third of livery of the grain, made when the parties the grain was a rent depended upon the were face to face, accompanied by the act of facts. It nowhere appeared in the evidence, the assessment of the land to the defendant that Peter Learn had ever so designated it, by the direction of his father, constituted and all his declarations were inconsistent strong evidence of a gift. Sower v. Weaver, with such an idea. As before indicated, 84 Pa. 262, 269; Matthews v. Matthews, 11 that issue was for the jury and was proper-¦ Pa. Super. Ct. 381; Caldwell v. Caldwell, 24 ly submitted. This assignment is overruled. Pa. Super. Ct. 230. It may also be well to [8] The eighth assignment criticises the answer made by the trial judge to the effect that the running of the statute of limitations in favor of the defendant depended upon how they might find the fact as to whether or not Elias paid rent. We see no error in this, and the assignment is overruled.

The matters covered by the next four assignments are sufficiently disposed of in our discussion of the third assignment. These

assignments are overruled.

Although there was no testimony to show that the defendant had "grown old," yet we cannot say that any substantial harm was Cone by the instruction complained of in the thirteenth assignment; it is overruled.

note that the equities of this case are with the defendant. He was not only in actual possession of the land which was enough to put the purchasers of the coal upon inquiry as to his title (Hottenstein v. Lerch, 104 Pa. 454; Rowe v. Ream, 105 Pa. 543; White v. Patterson, 139 Pa. 429, 21 Atl. 360), but, if the evidence of his witnesses is to be believed, and the verdict shows that it was, he served actual notice of his claim of title before any purchase money was paid. After reading the testimony and reviewing the entire record, we feel that the evidence was sufficient to sustain the verdict and that no reversible error was committed in the trial. The judgment of the court below is affirmed.

(234 Pa. 199)

COATES v. ALLEGHENY STEEL CO.
(Supreme Court of Pennsylvania. Jan. 2,
1912.)

[9] The testimony quoted in the next two assignments, concerning declarations by the defendant and others. was properly admit-1 ted. As to the admission of such testimony, we have said: "His (the occupant's) own dec- ! larations while in possession of the premises as well as the understanding of his 1. MASTER AND SERVANT (§ 31*)-CONTRACT neighbors was proper evidence of the charac- OF EMPLOYMENT TERMINATION-DISCHARGE. ter of his claim." Kennedy v. Wible, 11 Atl. A contract for plaintiff's employment for a definite term provided for termination by 98. "Such declarations accompanying his giving 12 months' notice in writing. On April acts constitute part of the res geste, and as 29, 1909, defendant gave notice of its elecsuch are always received in evidence in question to cancel the contract, and on May 1, tions of possession." Potts v. Everhart, 26 Pa. 493. "The character of possession of a party as stated by himself while in possession is part of the res gesta." Susquehanna & Wyoming Valley R. R. & Coal Co. v. Quick, 68 Pa. 189. These assignments are over

ruled.

Before concluding, we note that it is not clear how much of the testimony of the defendant was intended to be stricken from the record; but we do not take it that the first part covering the language and the time of the gift was affected. by the order of the court. However that may be, whether the bargain to pay the one-third of the grain to his father was made at the time of the gift

that date, but requested that plaintiff use his 1910, affirmed its liability to pay salary to best endeavors to obtain other employment in the meantime, and relieve defendant from its went to Europe, and some time in October, obligation to pay salary. Plaintiff thereafter 1909. requested information as to why his monthly salary was not paid, and was informed on November 9th that it was because he had not used and was not using any diligence to procure another position, and that defendant took the position that it had allowed sufficient time for that purpose, and that its obthat the letter of April 29, 1909, giving notice ligation to pay salary was terminated. Held, of the termination of the contract, did net amount to a discharge, which only occurred on receipt of the letter of November 9th following.

[Ed. Note.--For other cases, see Master and Servant, Cent. Dig. § 37; Dec. Dig. § 31.*]

2. MASTER AND SERVANT (§ 43*)-CONTRACT | the defendant company under a written OF EMPLOYMENT-DISCHARGE-QUESTION FOR agreement, made determinable by either party upon twelve months written notice. Under date of April 29, 1909, the defendant company wrote to the plaintiff as follows:

"Mr. Jesse Coates, Natrona, Pa.-Dear Sir: Owing to the changes already made and others about to be introduced, by the Allegheny Steel Company, in the manufacture of its product, and especially in the manufacture of magnetic steel sheets, it is obvious that it will not hereafter have the occasion for such services, as are contemplated under the agreement between you and the Allegheny Steel Company of March 1st, 1907. Therefore, the Allegheny Steel Company desires to avail itself of its privi[Ed. Note.-For other cases, see Master and lege under the said agreement, of terminatServant, Cent. Dig. 88 54-56; Dec. Dig. §ing the same on twelve months' notice, and 42.*] the Allegheny Steel Company hereby accord

4. MASTER AND SERVANT ( 40*)-EMPLOY-ingly gives to you notice that it has elected MENT-WRONGFUL DISCHARGE-EFFORTS TO to exercise its privilege and that the agreeOBTAIN OTHER EMPLOYMENT.