ed, surely he cannot offset as against a direct loss rents and income, a considerable portion of which he had already received from the property before he misapplied the funds of the estate; and, so far as the evidence shows, he would or might have received fully as much had he not made this wrongful investment. To be exceedingly charitable in the adjustment of this transaction, we think the assignee, under all the facts and circumstances, about which there is little or no dispute, should be surcharged at least with the $598.64, being the difference he realized less from the sale of the property than he paid of the assigned estate's funds for it. As to the question of counsel fees, we have considered the evidence carefully. So far as the personalty is concerned, there seems to have been but little legal professional services required; and as to the real estate the services were of the ordinary work pertaining to assigned estates, such as procuring order of sale for real estate, and the orders of sale enlarged and continued several times, and making out of some eight or nine assignee's deeds. There was no litigation of any consequence, -only such as has arisen upon exceptions to the administering of the affairs of the assigned estate. As to any compensation for counsel fees as to the Mineral Point property, none should be considered, either as to the sale thereof or the making of deed therefor. After considering the case fully, we are of the opinion that if the assignee is allowed out of the assigned estate the sum of $250 for counsel fees it is a very liberal allowance for counsel fees as to the realty. As to assignee's commissions, if we were to limit him to the ordinary rule, it would be 21⁄2 per cent. on the sums realized out of the property. We, however, think that out of the real-estate assets we will allow him commissions of $250. Assignees and counsel thereof should realize that assigned estates for the benefit of creditors are made in trust for the creditors and assignor; and where the estate is largely insolvent, as in this one, it is especially in trust for the creditors, and are not to be unnecessarily prolonged in their settlement, and minimized for the benefit of the assignee and counsel concerned. The assignee is a trustee, and subject to the good faith and responsibilities as such. The exception to the auditor's fee we dismiss because the evidence fails to show definitely the exact time employed. The report is voluminous, and a good deal of testimony taken. The restatement of the aecount, and the long pro rata distribution, and making out of the report was accompanied with a great deal of labor. We, however, will exact of the auditor the duty of making a pro rata distribution in accordance with our decree, without additional compensation. Then, for the purposes of distribution, we decree the following balances, which are the balances found by the auditor after de

PER CURIAM. We find no error in this record that would justify a reversal or modification of the decree; nor is there anything in either of the specifications of error that requires discussion. The correctness of the decree and the rulings of the court leading up thereto are so fully vindicated in the clear and exhaustive opinion of the learned president of the Forty-Ninth judicial district, who specially presided at the hearing, that we find it unnecessary to add anything to what he has so well said. On that opinion the decree is affirmed, and appeal dismissed, at appellant's costs.

RICHARDSON v. RICHARDSON. (Supreme Court of Pennsylvania. Oct. 23, 1899.)

APPEAL AND ERROR-INTERLOCUTORY ORDERS-UNAUTHORIZED APPEAL-DAM

AGES FOR DELAY.

1. An appeal will not lie from an order overruling a demurrer to a complaint, it being an interlocutory order.

2. Under Act May 19, 1897 (P. L. 72), authorizing the imposition of a penalty for taking an appeal merely for delay, a penalty may be imposed where the result of an unauthorized appeal from an interlocutory order is an unnecessary delay of nearly a year in prosecuting the cause to a final decree.

Appeal from court of common pleas, Westmoreland county.

Action by Mary J. Richardson against G. B. Richardson for divorce. From a decree overruling his demurrer and allowing libelant to amend, defendant appeals. Dismissed.

Geo. S. Rumbaugh, for appellant. Edward E. Robbins and John E. Kunkle, for appellee.

PER CURIAM. The orders of the court below overruling the demurrer to the libel and granting the libelant leave to amend, etc., are the only subjects of complaint in the specifications of error before us. Those orders are merely interlocutory. Neither of them is, in any proper sense, a "final sentence or decree," from which alone an appeal lies to this court. The appeal was, therefore, unauthorized, and the same is accordingly quashed, at appellant's costs.

The result of the appeal has been an unnecessary and vexatious delay of nearly a year in prosecuting the case to a final decree. We think the undisputed facts bring the case within the mischief intended to be remedied by the recent act of May 19, 1897 (P. L. 72), authorizing the imposition of penalties for suing out appeals merely for delay. It is therefore ordered, on motion of appellee's attorney, that as further costs an attorney's fee of $25 be awarded against the appellant.

CASSELL v. CROTHERS. (Supreme Court of Pennsylvania. Oct. 30, 1899.)

OIL LEASE TERMINATION-TENANCY AT WILL -REMEDY FOR PERSONAL PROPERTY. 1. Under a lease for operating for oil for the term of 10 years, "and as long thereafter as oil *** is found in paying quantities," in consideration of one-eighth of the oil, on the lessee failing, after the 10 years, to produce oil in paying quantities, the tenancy becomes one at will, not from year to year, and may be ended at any time by either party, without right to the lessee, if oil is afterwards discovered in paying quantities.

2. The tenancy under a lease for oil purposes for 10 years, and as long thereafter as oil is found in paying quantities, with right to the lessee at any time to remove machinery placed by him on the premises, having become one at will, on the lessee failing, after the 10 years, to produce oil in paying quantities, and being terminated by the lessor, who entered and converted the machinery, the remedy of the lessee for the machinery is not ejectment, but an action for conversion.

Appeal from court of common pleas, Washington county.

Ejectment by Cecelia Cassell against W. B. Crothers. Judgment for defendant. Plaintiff appeals. Affirmed.

The opinions of the court below are as follows (McIlvaine, P. J.):

"1. Facts Found.

"(1) On April 22, 1887, W. B. Crothers, the defendant, leased his farm in Buffalo township, in this county, containing 96 acres, more or less, to the Marshall Oil Company, its successors and assigns,' 'for the sole and only purpose of drilling and operating for petroleum oil and gas for the term of ten (10) years, and as long thereafter as oil or gas is found in the land herein described in paying quantities,' with the right to remove at any time any and all machinery, oil-well supplies, or

appurtenances and property of any kind to said party of the second part belonging or by it placed on said premises.' 'In consideration of said lease,' 'the said party of the second part' agreed 'to pay to said party of the first part five hundred dollars annually for each gas well, from the time said gas is conducted and used or sold off of said premises'; and, ‘in further consideration of said lease,' 'the party of the second part' agreed 'to deliver to said party of the first part the one-eighth (%) of all the oil produced and saved from said premises, and to deliver the same to a pipe line for the said party of the first part.'

"(2) The rights of the Marshall Oil Company by assignments were transferred and vested in Cecelia Cassell on March 18, 1891, and were held by her from that date until the bringing of this action.

"(3) A number of wells were drilled on this farm under this lease shortly after its execution, and oil, but.not gas, was found in paying quantities. The term of the lease (10 years) expired on April 22, 1897, and at that time there were five wells that had been or were being pumped for oil. On July 1, 1897, four wells were producing oil, and on November 14, 1897, only three. On the last-named day all the oil in the tanks was run into the pipe line, all the wells were shut down, and the loose tools were locked up, and the employés in charge of the lease left it, and none of them returned, except as hereinafter stated. At the time the wells were thus shut down they were making, in all, about one or two barrels of oil per day, and were not at that time producing oil in paying quantities; a production of eight or ten barrels per day being necessary before it could be said that the premises leased were producing oil in paying quantities. The wells were shut down and left, as we have indicated, by the field manager, in pursuance of directions received from the attorneys in fact of Cecelia Cassell, the plaintiff, which directions were contained in the following letter: New York, Nov. 9, 1897. T. E. Sloan, Taylorstown, Pa.-Dear Sir: In reply to yours of November 8th, would say that we have recently written Mr. Malick to instruct you to shut down the Blayney well and the W. B. Crothers farm for the winter. It is not our intention to clean out any wells in that section before next spring. Our Mr. Malick will see you soon, as he intends to make a trip to Taylorstown shortly. Yours, truly, Bettman, Watson & Bernheimer.' These people controlled a number of wells in this 'section' besides those on the Crothers farm, some of which were not shut down.

"(4) Some time in April, 1898, W. B. Crothers, the defendant, entered and took possession of all the wells and property of the plaintiff, including boilers, engines, steam pipe, sucker rods, tools, etc., claiming that the term of the lease had ended, and that the leased premises, and everything foun thereon, belonged to him. He shot and cleaned out

given by the lease.

"2. Conclusion.

"From the foregoing facts we hold as follows: (1) That the plaintiff did not abandon her rights under the lease; (2) that the plaintiff did not forfeit her rights under the lease; but (3) that the period for which she held under the lease, on November 14, 1897, became subject to termination, as oil or gas was not being produced in paying quantities, and that the defendant on April 1, 1898, had a right to re-enter to determine it; (4) but that this did not give him the right, eo instante, to take and convert to his own use the plaintiff's personal property found upon the lease, or such fixtures as she had not had, after notice, a reasonable time to remove; (5) that the plaintiff's remedy against the defendant for taking and appropriating any personal property or fixtures which she had a right to remove is not an action of ejectment.

"3. How the Court Arrived at Its Conclusions.

"A lessee's rights under an oil lease may be terminated by 'abandonment,' by 'forfeiture,' and by 'expiration of the term' for which the lease was made. "Abandonment" is the relinquishment or surrender of rights of property by one person to another. It includes both intention to abandon and the external act by which the intention is carried into effect.' 1 Am. & Eng. Enc. Law (2d Ed.) 1, and notes. The position that the plaintiff, when she caused the wells on this lease to be shut down and the tools safely locked up, intended to abandon her claim to the lease, and her right to remove personal property of great value, is, under the facts, found clearly untenable. The letter of the attorneys in fact shows that no abandonment was intended, and the writer of the letter says in his testimony that none was intended, but that they expected to come back in the spring and clean out the wells.

And

we think it is clear, independent of his testimony as to their intention, that the plaintiff intended in the spring to come back, and either clean out the wells, or remove her per

"Forfeiture' means the loss of something as a penalty for doing or omitting to do a certain required act. In the lease under which the plaintiff claims we are unable to find any covenant, expressed or implied, that the plaintiff so far failed to perform that would forfeit to the defendant, not only her right to take the oil and gas found in the land, but her right to remove 'at any time any and all machinery, oil-well supplies, or appurtenances and property of any kind to her belonging.' Forfeitures are not favorites of the law, and equity may relieve against them, even where the act of the party out of which the forfeiture arises is unequivocal and undisputed. In the case at bar the only grounds upon which the defendant might claim that the plaintiff had forfeited all her rights under the lease is that she shut the wells down. But she was only bound under her implied covenant to operate them as long as oil and gas were found in paying quantities. If oil and gas were not being found in paying quantities, she had the right to shut down the wells, and take such time as the defendant would allow her, or as was reasonable, to remove her machinery. But suppose, for the sake of the argument, that there had been written in this contract of lease these words: 'If oil is found in paying quantities, the lessee shall operate the producing wells continuously, and with reasonable diligence; and if he fails to do so, and thus deprives the lessor of his royalty, he shall forfeit to the lessor his rights to further operate, and the oil and gas remaining in the leased premises shall revert to the lessor.' Would such a clause of forfeiture be selfoperating, and would it affect the right to remove the machinery? In our opinion, it would not. It would be operative only from the time the lessor elected to enforce it. And the lessor could not, by the same act, terminate the lease and appropriate the personal property and fixtures of the lessee to his own use. A reasonable time should be given to remove these after the forfeiture was declared. Surely, equity would not allow a forfeiture of the lease, and what was demised and granted by it to the lessee, to carry with it a forfeiture of the right reserved to the lessee to remove his machinery, etc., unless the forfeiture of the machinery was also expressly provided for. 'Where a lease provided for forfeiture for nonpayment of royalty, and also that new buildings placed upon the land by the lessee might be removed at the termination of the lease, unless all right thereto has been forfeited by a forfeiture of the lease,' held, that the right to remove buildings within a reasonable time was not lost by forfeiture for nonpayment of royalty. The forfeiture for nonpayment was a forfeiture of the lease only, and it should clearly appear that it also provided for the forfeiture of the buildings before it can be declared so.' Barring. & A.

Mines, p. 151; Mickle v. Douglas, 75 Iowa, 78, 39 N. W. 198. See 12 Am. & Eng. Enc. Law, 758, note 7; Wick v. Bredin, 189 Pa. St. 83, 42 Atl. 17.

"This brings us to the consideration of a question that, so far as we know, has not been before any of our courts; and that is, what is the true interpretation to be put upon the words, 'and as long thereafter as oil or gas is found in the land herein described in paying quantities,' as found in this lease? The parties fixed the term of the lease at 10 years, which expired on April 22, 1897, but they provided, in case oil or gas was being profitably mined at the end of this term, that it could be extended to another date, to be fixed by the failure of the land leased to yield oil or gas in paying quantities. When this uncertain date was capable of being made certain, then the lease could be terminated; and after that date the lessee, if he did not surrender the premises, was a tenant at will, and the landlord could at any time enter and repossess himself of the premises demised, and after such entry the rights of the lessee to the oil and gas, even if it was afterwards discovered in paying quantities by the landlord, would be terminated. The true interpretation of the words, 'as long thereafter as oil or gas is found in the land in paying quantities,' is not 'as long thereafter as oil or gas can be found in the land in paying quantities by any one,' so as to give the lessee a tenancy until all the oil and gas in the land shall be exhausted, but is this: 'as long thereafter as oil or gas is actually being found in the land in paying quantities, under such developments as the lessee has seen fit to make under her covenants in the lease.' Taking her manner of operating the lease, the 10year term having expired, the moment she failed to produce oil in paying quantities, that moment the tenancy became a tenancy at will, which could be ended at any time by either the tenant or the landlord. We cannot seen how a lessee in an oil lease on a royalty, not an annual rental, holding over (after a definite term has expired) under the extension of the term for 'as long thereafter as oil is found in paying quantities,' can be a tenant from year to year, as suggested by the counsel for the plaintiff. In a tenancy from year to year, the holding over implies a term of the same duration as the original term, and the payment of an annual rental.' The lease here definitely fixes the length of the extended term. A failure at any time after April 22, 1897, to produce oil in paying quantities, ends it, and a holding over after that contingency could not, by implication, be for the purpose of producing oil. After the failure to produce oil in paying quantities, the plaintiff's rights are limited (if the defendant elects to terminate the lease) to the removal of his machinery, and to a possession for a reasonable length of time that this might be accomplished, if the property has not been taken, but remains as the plaintiff left it when he

no

stopped producing oil. Where of was longer being produced in paying quantities, the lease was liable to be terminated, and after that, in our opinion, it must be regarded as a tenancy at will, and not from year to year, or, if not a tenancy at will, then a tenancy at suffrance.

"In conclusion, then, our opinion, under the facts and the law as we have found them, is that when the wells were shut down in November, 1897, when they were not producing oil or gas in paying quantities, and when the plaintiff left the premises for the winter, the tenancy became a tenancy at will, and that the defendant then and afterwards, so long as these conditions remained, had the right to terminate the lease, and that his entry in April, 1898, to terminate it, if confined solely to that purpose, was not unlawful; but that he had no right, as part of the act terminating the lease, to take and appropriate the plaintiff's machinery, oil-well supplies, and other personal property. He could not lawfully enter to take the fixtures. It was his duty-she not having elected to terminate the lease nor having consented to the entry of the defendant-to give her a reasonable time and opportunity, after notice, to remove her property. 'Where the tenancy is uncertain in duration, as when it depends upon a contingency, or when the lessee is a tenant for life or at will, the law allows a reasonable time for the removal of fixtures.' 8 Am. & Eng. Enc. Law (1st Ed.) 62.

"And this brings us to the question, what kind of a judgment should be entered in this case on our findings? We are asked to enter a judgment for the plaintiff, if not generally, at least for the possession of the land 'for the purpose of removing the property placed thereon by the lessee and its assigns in the operation for oil and gas.' It is true that ejectment is an equitable remedy, and conditional judgments are sometimes entered to force the defendant to do equity. But in this case the evidence shows that the plaintiff's property has been appropriated by the defendant, and much of it has been changed in character, and we do not see how, in an action of ejectment, we could mold a judgment that would give to both parties their rights. The most that we can do for the plaintiff is to mold the judgment so as to show that her right to the machinery, oil supplies, pipes, boilers, engines, tools, etc., on the land in dispute, and taken by the defendant as she claims unlawfully, is not adjudicated in this case, and are not, by reason of the judgment herein entered, to be considered as part of the land (the possession of which is found to rightfully be in the defendant) at the time he re-entered in April, 1898."

"Plaintiff's Points and Answers.

"(1) That the plaintiff, under the lease made by the defendant, was in possession of said land under a tenancy from year to year, and could not be dispossessed without due

and legal notice to quit given by the defendant. Refused.

"(2) That, under all the evidence in the case, the plaintiff is entitled to the possession of the land in dispute for oil and gas purposes. Refused.

"If second point is refused, then:

"(3) That, under all the evidence in this case, the plaintiff is entitled to the possession of the land for the purpose of removing the property placed thereon by the lessee and its assigns in its operations for oil and gas. Refused."

"Opinion Overruling Plaintiff's Exceptions.

"The exceptions taken by the plaintiff to the decision of the court in this case are to the conclusions of law, and not to the findings of fact, and raise two questions which merit consideration: First. In April 1898, when the defendant dispossessed the plaintiff, was she a tenant from year to year? Second. Under the facts in this case, is ejectment the plaintiff's remedy to recover the 'machinery, oil-well supplies, and other property' placed by her and her predecessors in title upon the leased premises, granting that her title to the leasehold estate was terminated by the entry of the defendant? In other words, should the plaintiff's third point have been affirmed, and judgment entered in accordance therewith?

"First question: The unique character of an oil lease' makes it somewhat difficult to apply the well-established rules that, under the common law, apply to the ordinary lease, where the relation of landlord and tenant, pure and simple, is created. In an oil lease the 'lessor' and the 'lessee' sustain a dual relation to each other. In a sense they are landlord and tenant, but they also sustain the relation of 'grantor' and 'grantee' of an interest in lands. The lessee is a tenant as to the surface of the land, so far as it may be necessary to carry on his mining operations, but, as to the oil in the land after it is discovered by the drill, he is the 'grantee,'-the owner in fee simple. The lessor for the occupancy of the surface of the land does not, as is usual with landlords, receive a rent,

compensation payable periodically,-nor does he receive part of the produce of the land leased. He receives part of the land itself, a royalty. A part of the oil mined and oil in place is real estate. The tenancy of the plaintiff in this case, which alone related to the surface of the defendant's land after April 22, 1897, was not in consideration of the payment of a sum of money periodically made, but depended upon the continued production of oil in paying quantities; or, stated negatively, upon the exhaustion of the mineral that was being mined. The moment that oil was not being produced in paying quantities, and that fact was ascertained and declared, that moment the right to occupy the surface for oil and gas purposes ceased, regardless of the fact that the termination of 44 A.-29

the fixed term of the lease was on April 22, 1897. To say that the lease after April 22, 1897, was a lease from year to year, would be to change the contract of the parties from a lease to continue 'so long thereafter as oil may be found in paying quantities' to a lease to continue 'so long thereafter as oil may be found in paying quantities, provided the termination shall only occur on April 22d, the end of a year counting from April 22, 1897, the end of the fixed term.' That is to say, if the leased premises actually and beyond dispute produced some oil, but not in paying quantities, say on April 24, 1897, the lessee, for the gain of the lessor, would be bound to pump the wells at a loss until April 22, 1898, there being some to be pumped; or, if the oil was totally exhausted, the lessee could retain the surface of the land for one year, lacking two days, without compensation to the lessor. Surely, the parties did not intend this. Again, suppose that on November 14, 1897, the plaintiff, in place of shutting down, had, against the will of the defendant, removed all her machinery, oil-well supplies, and other property because the lease was not producing oil in paying quantities; could the defendant (admitting the fact that oil was not being produced in paying quantities) maintain an action against the plaintiff for royalties for the year ending April 22, 1898, fixing the amount at the same as he received the year ending April 22, 1897? Certainly not. As we said in our attempt to vindicate our conclusions of law in the decision heretofore filed, we know of no case where the question here raised has been passed upon by any of our courts. Adopting a rule, then, that will do equity to both parties, we hold that in an oil lease for a fixed period, and 'as long thereafter as oil is found in paying quantities,' where the lessor's compensation is one-eighth of the oil produced, the tenancy as to the surface of the land, after the expiration of the fixed period, and after the fact that oil is not being found and produced in paying quantities becomes susceptible of proof, is a tenancy in the nature of a tenancy at will, and, if not actually terminated by mutual consent, or continued by mutual consent, in order that further exploration be made, may be terminated by either party.

"Second question: Here we have another new question. At first our mind was inclined to yield to the argument of counsel for the plaintiff. But, on reflection, our best judgment is that the wrong the defendant did (if any) was not so much against the plaintiff's right of possession-her right to enter and remove her property-as it was against her title to the personal property in question, -her right to the property itself. From the testimony in the case, and from what was said by the counsel of the defendant at the argument, and from the inferences that can be fairly and legally made from what was developed in this trial, the defendant, when he took possession of the plaintiff's property,