or guard on the outside. As said by the learned judge below, it is difficult to see how any sober person, exercising reasonable care, would be likely to walk off such a bridge. Under such circumstances there was no sufficient evidence of negligence on the part of the borough to submit to the jury. It is a much weaker case than Monongahela City v. Fischer, 111 Pa. St. 9, 2 Atl. 87. The plaintiff was clearly guilty of contributory negligence. About 9 o'clock at night, she started out, without a lantern, to hunt her cow, which had broken loose and got away. She proceeded over rough roads, and through an unfenced alley, across farm lands; found her cow; and, in driving it home, came to this bridge. She testified that she was not acquainted with it since the rebuilding, some months or a year before,-a statement, as the learned Judge says, not only inherently improbable, but negatived by the positive testimony of other witnesses who had seen her cross it. But, assuming it to be true, she had lived since 1861 within 800 feet of the place, and the testimony is undisputed that the two previous bridges at that point had been only about half the width of the roadway. She had therefore a long acquaintance with the locality when it was less safe than at the time of this occurrence. It was a moonless night, but could not have been very dark, as she was able to follow and find the cow, and no witness on either side indicates any difficulty in seeing a reasonable distance. There were electric lights belonging to the passenger railway in the neighborhood, but the exact position and effect of them were disputed. Coming now to the moment of the accident, the plaintiff, who was the only witness, testified that she saw a big man coming, and the cow, then about 100 feet ahead, "walk sideways. I noticed a cow with her bell walkIng sideways to the left, and so I thought, 'Oh, well, I am not going to walk on top of this man,' and I walked sideways, too; and, the first thing I knowed, my foot had no hold, and I fell." And on cross-examination she said that she stepped aside to avoid "walking on top of the man," while he was still between two and three hundred feet away. Thus, with light enough to see a man at that distance, and to notice the action of the cow in turning aside, she, that far in advance of meeting the man, and without looking where she was going, stepped clear out of the roadway of 33 feet, and over the side of the bridge. It is impossible to permit a jury to say that that was exercising reasonable care. Judgment reversed.

the grantor and his wife do such work as shall be necessary to be done for them, such as furnishing fuel, provisions, nurses, and care in sickness, they "do hereby grant to him [the defendant] one day after my and my wife's death, the farm or tract of land described in this agreement, his heirs and assigns, forever." Held, that the instrument is a valid present grant of lands, and not a mere lease.

2. Services to be rendered by the grantee, and

actually performed by him, constitute a valu

able consideration for a grant of lands, rendering the conveyance not objectionable as núdum pactum.

3. In ejectment, where defendant claimed under an agreement reciting that, in consideration of the performance of certain conditions, the grantors "do hereby grant to him [the defendant] one day after my and my wife's death, the farm or tract of land described in this agreement, his heirs and assigns, forever," proof of the execution of the instrument rendered it admissible in evidence, as showing the title under which defendant claimed.

4. In ejectment, where the defendant claimed under an agreement reciting that the grantor had let the premises to the defendant on certain conditions, and provided that, if defendant should strictly comply with the conditions, they "do hereby grant to him, one day after my and my wife's death, the farm or tract of land described in this agreement," evidence tending to show that defendant went into possession, and conformed to the conditions stipulated in the agreement, was admissible.

5. In ejectment, testimony that the defendant had taken timber from the land was properly excluded, as not relevant to the issue as te title.

Appeal from court of common pleas, Somerset county; J. H. Longenecker, Judge.

Ejectment brought by Hannah Fritz and others against Thomas A. Menges. There was judgment for defendant, and plaintiffs appeal. Affirmed.

This was an action of ejectment, brought to recover a tract of land containing over 200 acres. The plaintiffs claimed title as the collateral heirs of John Geiger, who was the undisputed owner of the land prior to December 15, 1888, and who died, March 17, 1890, intestate, leaving a widow surviving. The widow died January 31, 1893. The defendant claims title by virtue of an article of agreement executed by John Geiger and the defendant on December 15, 1888, but which, it appeared, was not executed by the wife, Elizabeth Geiger, until after the death of her husband.

The agreement is as follows:

"This article of agreement, made and entered into this 15th day of December, A. D. 1888, by and between John Geiger, of Allegheny township, Somerset county, Pa., of the one part, and Thomas A. Menges, of Summit township, [same] county and state, of the other part, to wit:

"Part First. The said John Geiger doth hereby covenant and agree to let unto the said Thomas A. Menges all that farm or tract of land which he now occupies, situated in the township of Allegheny, county of Somerset, and state of Penn'a, adjoining lands of Sturtz Bros., Jacob Troutman, U. Poorbaugh, and others, containing about 200 acres, on the following conditions: The said John

Geiger agrees to furnish one-half of all grain used and needed for seeding, and one-half of all farming implements to be used in cultivating said farm, and the use of one horse and feed for same, and to allow and grant unto the said Thomas A. Menges to receive one-half of all the proceeds raised on said farm; also to pay one-half of all taxes to be levied and assessed on the farm from year to year. And the said Thomas A. Menges is to find one-half of all in comparison as above mentioned, and to pay the other half of all taxes; also, to perform all the work necessary to be done and connected with and about the farm, and to keep all fences on the premises in good repair, and everything generally on the premises in good condition; also, reserves the right of cutting any timber except such as shall or may be needed in and about the premises, fencing, fuel, etc. This agreement to take effect April 1, 1889, for a term as set forth in part second of this agreement. In consideration whereof the said Thomas A. Menges doth hereby promise and agree with the said John Geiger to comply with each and every act and condition as above mentioned.

"Part Second. The said John Geiger [and Elizabeth, his wife] doth hereby further agree to and with the said Thomas A. Menges that if the said Thomas A. Menges shall and will from time to time strictly comply with the conditions of the agreements as above stipulated, and, in addition, at the request of the [said] John Geiger and Elizabeth his [wife], do such work as shall be necessary to be done for them, such as furnishing fuel and providing for provisions and nurses, and care for them in case of sickness, [then] I [the said John Geiger and wife do] hereby grant to him [the said Thomas A. Menges], one day after my and my wife's death, the farm or tract of land as described in part first of this agreement, his heirs and assigns, forever, and free of all incumbrances."

On the trial the plaintiff objected to the admission of the agreement in evidence (1) on the ground that it was not completely executed at the time purported so to be, in that the signature of Elizabeth Geiger was not at that time affixed to the instrument; (2) on the ground that the agreement was not a conveyance of the land in dispute, and therefore passed no title to the defendant; (3) that by the terms of the agreement John Geiger and his wife were only to execute the conveyance upon certain conditions, depending entirely upon the volition of Geiger and his wife, and, as their volition was not executed in the lifetime of John Geiger, the agreement was of no force; (4) that the agreement was irrelevant and immaterial; (5) that at most the agreement evinces a purpose or promise on the part of John Geiger and wife to make a testamentary disposition of the real estate in favor of the defendant. The instrument was admitted over the objection of the plaintiff, and its admission is assigned as error.

The second assignment of error was placed on the ground that the court erred in admitting testimony on the part of the defendant tending to show that he had moved on the land in controversy shortly after the execution of the agreement; that he had complied with the conditions contained in such agreement; that he had made certain improvements upon the property during the lifetime of John Geiger, and further improvements during the lifetime of Mrs. Geiger. Plaintiffs' third assignment of error was based on the refusal of the trial court to admit testimony tending to show that the defendant had taken several hundred dollars' worth of bark and timber from the land during the year.

J. L. Pugh and Coffroth & Ruppel, for appellants. Valentine Hay and Koontz & Ogle, for appellee.

STERRETT, C. J. In the language of plaintiffs' only point, the learned trial judge instructed the jury that, "under all the evidence in the case, the verdict must be for the plaintiffs for the land in dispute"; and accordingly a verdict was taken, subject to the opinion of the court on the question of law presented by said point. The defendant alone excepted to this ruling; but, inasmuch as judgment non obstante veredicto was subsequently entered in his favor on the question reserved, he, of course, abandoned his exception, and no question as to the form of the reservation has been raised here by elther party. Waiving any question as to the regularity of the reservation, and considering the case, as the parties have done, on its merits, we are by no means convinced that the learned judge's construction of the instrument upon which defendant's claim of title in himself depends is not substantially correct. On the contrary, for reasons given in the opinion of the learned judge, we think the instrument in question was correctly construed. There is no valid ground on which it can be successfully contended that the instrument in question is neither an executed nor an executory contract, but simply a lease If that portion of it designated as "Part First" stood alone, and contained no refer ence to "Part Second," and omitted the undertaking of the defendant, there might be some ground for construing it to be a lease. But, in construing the paper, both parts must be taken together; and, when thus considered as a whole, it is very evident that it is not simply a lease. With still less show of reason can it be considered nudum pactum. In the services to be rendered by the defendant, and which were actually performed by him, the agreement clearly discloses a valuable consideration.

Some of the authorities cited by plaintiffs in support of their further position, that at most the agreement is merely executory, are not in point. While the instruments to

which they refer do contain words of present assurance of the land, they also provide for a future conveyance of the same. In the case at bar, there is a present grant of the land, without any provision whatever for a future conveyance. The operative words are: "[Then] I [the said John Geiger and wife do] hereby grant to him [the said Thomas A. Menges], one day after my and my wife's death, the farm or tract of land described in part first of this agreement, his heirs and assigns, forever, and free of all incumbrances." We thus have a present grant, containing words of inheritance, on conditions to be performed by the grantee, followed by possession taken by him within less than three months after the execution of the instrument, and performance by him of the conditions and stipulations, and, in addition thereto, valuable improvements made by him on the land, and continuous possession thereof during the joint lives of the grantor and his wife and the life of the survivor. In Gray v. Blanchard (8 Pick. 283) 1 Shars. & B. Lead. Cas. Real Prop. 127, note, it is said: "A condition may be made of anything that is not illegal or unreasonable, on the principle that the owner of the land, who is not obliged to transfer it at all, may attach to its transfer such conditions and restrictions as he pleases, and in view of which the grantee takes the land, so long as they are not in contravention of any policy of law. . . A very common condition in rural districts is that the grantee shall support the grantor during life." Id. 128, and cases there cited. In the case before us, the conditions are: "Shall and will from time to time strictly comply with the conditions of the agreements as above stipulated, and, in addition, at the request of said John Geiger and Elizabeth, his wife, do such work as shall be necessary to be done for them, such as furnishing fuel and providing for provisions and nurses for them in case of sickness," etc. This language fully meets the requirements stated in Gray v. Blanchard, su pra; and, in view of the undisputed facts that the defendant fully performed all the conditions and stipulations contained in the agreement, etc., and that no complaint was ever made by either the grantor or his wife, the title in fee, on the death of Geiger and his wife, became absolute in the defendant. As was held in Evenson v. Webster (S. D.) 44 Am. St. Rep. 802 (53 N. W. 747), “a conveyance upon condition subsequent, passes the title to the grantee, subject to be divested by failure to perform the conditions." "The rule that the title passes in such conveyances is generally recognized. Towle v. Remsen, 70 N. Y. 303; 4 Kent, Comm. 125; 2 Bl. Comm. 154." Assuming, for argument's sake merely, that the contract is only executory, the question would then arise whether it is such a contract as a chancellor would enforce. We think it is, because: (1) There is nothing unreasonable in its terms. It im

poses on the defendant certain conditions, the performance of which on his part become absolutely necessary. (2) It contains words of inheritance which, in equity, are not even required in an executory contract. "An executory contract will pass a fee simple in equity without words of inheritance." Ogden v. Brown, 33 Pa. St. 247; Phillips v. Swank, 120 Pa. St. 76, 13 Atl. 712. (3) There was full compliance by defendant with its terms and conditions, and no complaint to the contrary was ever made by either the grantor or his wife. (4) The contract is perfectly fair. While it is informal, its terms are sufficiently clear and capable of ascertainment. There is no allegation of fraud or imposition in its procurement. Other authorities, among which are Johnson v. McCue, 34 Pa. St. 180, and Dreisbach v. Serfass, 126 Pa. St. 32, 17 Atl. 513, are cited in support of the principle; but further elaboration of the subject is unnecessary. As already stated, the operative words of the contract under consideration, unqualified by anything therein contained, justified the conclusion that it was an executed contract, and not an executory agreement to convey.

On the trial, it was admitted that title to the land in controversy was in John Geiger prior to December 15, 1888, the date of the instrument referred to; that on March 17, 1890, John Geiger died intestate, leaving, to survive him, a widow, Elizabeth Geiger, and collateral heirs, but no lineal descendants; and that in January, 1893, the widow died. In the same connection the plaintiffs proved that they are the heirs of John Geiger, and put in evidence the writ, etc. To meet the prima facie case thus presented by the plaintiffs, the defendant proved that he went into possession of the land under and in pursuance of said contract of December 15, 1888; that he complied with all the terms and conditions thereof, to be done, kept, and performed by him; and that he has remained in possession ever since. After having proved the execution of said contract, and the circumstances connected therewith, the instrument was offered and received in evidence. Its admission constitutes the first assignment of error. There was no conflict of testimony as to the execution of the instrument, and there appears to have been no error in overruling plaintiff's objections and admitting it in evidence. Nor was there any error in receiving the testimony complained of in the second specification. It was both relevant and material, in that it proved performance by the defendant of all the terms and conditions of the contract under which he acquired and retained possession of the land. The testimony referred to in the third specification was rightly excluded, for the reason that it was incompetent and wholly irrelevant to the issue. There was no error in the admission or rejection of testimony, nor was there any conflict of evidence as to any of the material facts in the case.

We

find nothing in the record that requires a reversal of the judgment for the defendant non obstante veredicto, and it is therefore af.firmed.

(179 Pa. St. 165)

MATHEWS v. PEOPLE'S NAT. GAS CO. (Supreme Court of Pennsylvania. Jan. 4,

1897.)

OIL LEASE-FORFEITURE-LIABILITY FOR RENTEVICTION-WHAT CONSTITUTES.

1. In an oil lease for 20 years, which provides that, if a well is not commenced within three months, the lessee shall thereafter pay a specified monthly sum until work is commenced, a clause declaring that in no case shall the commencing of the well be delayed beyond six months, and that, if no well is begun within that term, the lease shall be forfeited, is for the benefit of the lessor, and, until he elects to enforce it, the lessee's liability to pay rent continues. Leatherman v. Oliver, 25 Atl. 309, 151 Pa. St. 649, followed.

2. The act of the lessor of oil lands in entering on the premises, and erecting a building in such a location as not to interfere with the future operations of a well the site of which was then marked with a stake, was not an eviction.

3. An absolute conveyance of oil lands by the lessor, without reserving the lessee's right of entry to drill for oil, is a constructive eviction, which terminates the lessee's liability for rent. Appeal from court of common pleas, Washington county; McIlvaine, Judge.

Assumpsit by James E. Mathews against the People's Natural Gas Company to recover rent. From a judgment for plaintiff, defendant appeals. Affirmed.

J. W. & A. Donnan and W. S. Miller, for appellant. Braden & Campbell and McCrackens & McGiffin, for appellee.

DEAN, J. The plaintiff, on 6th of February, 1886, leased to defendant, for oil and gas purposes, two vacant lots of ground in South Strabane township, Washington county, for the term of 20 years. The lots were intended for building purposes, and, although separated from each other 900 feet, both were in what is known as the 'Gantz and Gordon Oil Pools,' and producing wells had been drilled in proximity to them. The leases contained these provisions: "The party of the second part covenants to commence operations on this land for said purpose within three months from the execution of this lease, or thereafter pay the party of the first part fifty (50) dollars per month until work is commenced, to be paid each month in advance; and, after work is commenced, it is to be prosecuted with due diligence until completion. It is mutually understood and agreed by both parties hereto that in no case shall the commencing of a well on the above-described land be delayed beyond a period of six months from date of this lease, and, if no well is commenced inside of said six months, the penalty to be a forfeiture of this lease, and neither party being held further. And it is further understood and agreed that a well drill

ed on either of above-described lots will hold the lease on the other lot for the full term of lease." The first month's rental was paid, but thereafter no further rental was ever paid, nor was demand made until this suit was brought, on 23d of January, 1895, nearly nine years afterwards. About one year after the date of the lease, 20th February, 1887, the plaintiff entered on one of the lots, and built a house; but the evidence tended to show that at this time a stake had been set by defendant indicating the site of a future well, and that the building would not have materially interfered with the operation. On the 6th day of February, 1889, however, just three years after date of lease, plaintiff conveyed, by deed, one of the lots to John D. Porte, without reservation of any right of defendant as lessee to the oil and gas. The claim by plaintiff was for the $50 per month rental from three months after the execution of the lease up to the commencement of the suit. The defendant alleged the true construction of the writing to be that the monthly rental was payable only from three months after the date of the lease until the expiration of six months, when, if there had been no entry for purposes of drilling, the contract was at an end, and all liability on its part ceased; but, if this were not the case, that, under the forfeiture clause, all the rights of defendant in case of nonentry terminated at the expiration of six months, and with its termination all liability for rent ended. It was further averred that, in any event, the entry for building purposes in spring of 1887 was an eviction of the lessee as of that date, and terminated the right of the lessor to demand rent. The case, on the law and facts, was submitted to the decision of the court, under the act of 1874. The court concluded on the facts, under the authority of Leatherman v. Oliver, 151 Pa. St. 649, 25 Atl. 309, and that line of cases, the clauses of forfeiture were for the benefit of the lessor, and that, under the evidence, he had not asserted his right until the conveyance of the lot to Porte; but that at that date he had, by his deed, in effect declared the lease at an end. Defendant having paid one month's rent, judgment was entered against him for the monthly rental from June 6, 1886, to February 6, 1889, the latter being the date of the Porte conveyance. From this defendant appeals, assigning for error the construction of the lease, and the refusal to hold that the entry for building purposes had not suspended liability for rent.

We decidedly concur with the learned judge of the court below in his construction of the two clauses of the lease relating to forfeiture. As he clearly shows, Leatherman v. Oliver, supra, Jones v. Gas Co., 146 Pa. St. 207, 23 Atl. 386, Phillips v. Vandergrift, 146 Pa. St. 357, 23 Atl. 347, Ogden v. Hatry, 145 Pa. St 640, 23 Atl. 334, and other cases, effectually settle the law, by holding such clauses of forfeiture are for the benefit of the lessor, and,

until he invokes them, the lessee's liability continues. At the argument it was not clear to us that the entry of the lessor for building purposes was not such an unequivocal act, indicating an intention to resume possession of the leased property, as terminated his right thereafter to demand rent. But, after full consideration, we are of opinion, under the evidence, that neither party so regarded the act at the time. The defendant had set its stake on the let at the point where a well could be sunk in the future. The building was so located as not to interfere with development at this point. Now, if defendant had attempted to put down a well upon the lot within 20 years, could plaintiff have successfully maintained that the erection of a building covering only a few square feet had been an assertion of his right of forfeiture? We think, therefore, the court was right in Its rulings on defendant's fourth and fifth points, and the assignment of error raising this question is overruled.

We also, think the court was clearly right In holding the Porte conveyance a constructive eviction of defendant from leased land. There was an absolute conveyance by the lessor of one of the lots; no reservation of the lessee's right of entry to drill for oil and gas. This clearly ended the liability of lessee for rent, and the court properly computed it only to that date.

All the assignments of error are overruled, and the judgment is affirmed.

(179 Pa. St. 175)

BARTLEY et al. v. PHILLIPS et al. (Supreme Court of Pennsylvania. Jan. 4, 1897.)

VENDOR AND PURCHASER-NOTICE-EJECTMENT

EVIDENCE.

1. A parol agreement between the parties to an oil lease, as to what shall constitute due diligence or abandonment, is binding on purchasers from the lessor without notice, but with knowledge of the existence of the lease. Venture Oil Co. v. Fretts, 25 Atl. 732, 152 Pa. St. 451, distinguished.

2. In ejectment by lessees in an unexpired oil lease, it was not error to permit them to deny the abandonment claimed by defendants, by testifying to their intentions in dealing with the property as they did.

Appeal from court of common pleas, Butler county; Greer, Judge.

Ejectment by W. E. Bartley and others, trading as the Farmers' Oil Company, against Thomas Phillips and W. V. Hardman to recover possession of premises leased to plaintiffs by J. A. Hartzell for oil purposes, and afterwards sold and conveyed by Hartzell to defendant Phillips. Defendant Hardman filed a disclaimer. From a judgment in favor of plaintiffs, defendant Phillips appeals. Affirmed.

Clarence Walker and Thompson & Son, for appellant. Lev. McQuistion, W. A. Forquer, and T. C. Campbell, for appellees.

MITCHELL, J. It was decided when this case was here before (165 Pa. St. 325, 30 Atl. 842) that evidence to show the agreement between Hartzell and the plaintiffs as to what should constitute due diligence or abandonment was admissible,-not being an attempt to alter or modify the written agreement, but to define terms used therein. The effect of such an agreement as to parties subsequently acquiring title from Hartzell without notice was not decided, as the evidence did not then show that any such party was before us. Now, however, the appellant has shown title subsequently acquired from Hartzell; and his main contention is that he was not put on inquiry, or bound by anything not contained in the written lease, and that the admission of evidence of a parol agreement between the parties to the lease would be, as to him, an alteration of the writing without notice. This contention cannot be sustained. Appellant or his agent, it is admitted, had notice, in fact, of the lease. By it he was informed of an outstanding term in plaintiffs for 10 years, only 3 of which had expired. Whether the lease had terminated sooner, by abandonment or forfeiture, was a fact in pais, which could not be known from the lease, but only from evidence dehors. As to such fact, he was put on inquiry, and the only safe source of information was the lessees. He not only did not inquire of them, but Hartzell's deed gave him notice that the lessor refused to say there was a forfeiture. Under these circumstances, he took the risk whether there had been an abandonment or not, and the jury have found the fact against him. This court has firmly established in a line of decisions from Wills v. Gas Co., 130 Pa. St. 222, 18 Atl. 721, to Cochran v. Pew, 159 Pa. St. 184, 28 Atl. 219, notwithstanding a most determined and persistent struggle of parties for a different rule, that the clause of forfeiture or termination of the estate is for the benefit of the lessor, and that, as against him, no act of the lessee can produce that result without his concurrence. Parties, therefore, who lease or buy with a term apparently outstanding, without inquiry of the lessee, and without the exercise of the lessor's power to forfeit, take the risk of the fact as it may be found by the jury. In this case, as already said, no inquiry was made of the lessees, the lessor in his deed to Ziegler refused to assert a forfeiture, and the jury have found that there was no ground of forfeiture if the lessor had attempted one. The case of Venture Oil Co. v. Fretts, 152 Pa. St. 451, 25 Atl. 732, is relied upon by appellant, but there is nothing in it inconsistent with the present view. There the lessor, after an apparent abandonment by the lessee, had made a new lease to other parties, and this court held that to be an exercise of his right to forfeit for abandonment. In the present case, as already said, the lessor made a deed for the fee in the land, but excepted out of the warranty the rights of plaintiffs under the lease.