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BURKE v. PITTSBURGH LIMESTONE CORPORATION (11/17/53)

November 17, 1953

BURKE, APPELLANT,
v.
PITTSBURGH LIMESTONE CORPORATION



Appeal, No. 95, March T., 1953, from judgment of Court of Common Pleas of Armstrong County, June T., 1950, No. 306, in case of W. J. Burke et ux. v. Pittsburgh Limestone Corporation et al. Judgment affirmed; reargument refused November 30, 1953.

COUNSEL

Charles E. Harrington and Robert E. Ashe, with them H. H. Heilman, Jr., for appellants.

Ward McCullough and Harry C. Golden, with them Howard R. Eulenstein and McCullough & House, for appellees.

Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.

Author: Arnold

[ 375 Pa. Page 391]

OPINION BY MR. JUSTICE ARNOLD

This is a proceeding for a declaratory judgment. We have decided to accept such proceedings even

[ 375 Pa. Page 392]

    though under the facts a common law action could have been brought. See Philadelphia Manufacturers Mutual Fire Insurance Company v. Rose, 364 Pa. 15, 70 A.2d 316.

In 1912 I. E. Anthony and wife, being the owners of 50 acres of land in Armstrong County, "granted, bargained, sold, let and leased" to Pittsburgh Limestone Company Ltd. all the limestone under 50 acres of land, with, inter alia, the right to mine and remove that mineral. In consideration thereof the company agreed to pay royalty of one cent per long ton with a minimum of $12.50 per quarter.*fn1

The title of the grantee became vested in Pittsburgh Limestone Corporation; and the title of the grantors, subject to the contract, became vested in W. J. Burke and wife, who, by separate conveyances, also obtained the right to receive the royalties thereon.

In October, 1935, James Croyle had a judgment against the plaintiffs, Burke and wife, which was admittedly a lien on the real estate of the Burkes. A fieri facias was issued on the judgment and the 50 acres were levied upon. There was no special writ or levy in the sheriff's sale other than the ordinary fieri facias. In 1935 the sheriff sold the 50 acres to Mary Kerr, and gave her a deed for the land. Later Mary Kerr sued the Pittsburgh Limestone Corporation for royalties then due. The corporation paid the money into court and an interpleader was framed in which Burke and wife were plaintiffs and Mary Kerr ...


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