Appeal from judgment of Court of Common Pleas of Clearfield County, May T., 1959, No. 583, in case of William N. Bannard, 3rd v. New York State Natural Gas Corporation and Pennsylvania Game Commission.
Francis J. Carey, Jr., with him Ralph N. Teeters, John C. Tuten, Jr., Robert V. Maine, Townsend, Elliott & Munson, and Maine and Fennell, for appellant.
Leroy F. Perry, with him F. Cortez Bell, Jr., David E. Weatherwax, Edward T. Kelley, and Bell, Silberblatt and Swoope, for appellees.
Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Pomeroy. The former Mr. Chief Justice Bell and the former Mr. Justice Barbieri took no part in the consideration or decision of this case.
Appellants, the heirs of Charles Blanchard ("the heirs"), brought this action in ejectment against the New York State Natural Gas Corporation ("Gas Company")*fn1 to gain possession of a 153-acre oil, gas, and mineral tract. The Gas Company's lessor, the Pennsylvania Game Commission, intervened as a defendant. Judgment was rendered in favor of defendants,*fn2 and this appeal followed. For reasons which follow, we affirm.
The facts are complicated and must be set forth in some detail. Charles Blanchard died on July 23, 1885,
leaving a will which directed his executors to sell his real estate. At one time, Blanchard had owned all the land in Warrant 1990 in addition to many other tracts in Union Township, Clearfield County. Prior to 1885, he conveyed away, without reserving any mineral rights, four contiguous parcels occupying most of the western part of Warrant 1990.*fn3 At the time of his death Blanchard still owned all remaining tracts in the Warrant. In 1899 Blanchard's surviving executor, Henry B. Neely, conveyed 46 acres of land to Amos Kline ("Kline tract"), 80 acres to Kline and Stephen Wing ("Kline and Wing tract"), of which only approximately 30 acres were located in Warrant 1990, and 153 acres, the tract here in issue, to David Johnston ("Johnston tract").*fn4 In each of these three conveyances the grantor reserved the coal, fire-clay, oil, gas and other mineral rights. Pursuant to a 1904 order of the Orphans' Court of Philadelphia County directing the executor to divest the estate of its remaining property, Neely conveyed the mineral rights in the Johnston tract,*fn5 the Kline
tract and the Kline and Wing tract to the Commonwealth Title Insurance and Trust Company of Philadelphia ("Title Company").*fn6
The 153-acre Johnston tract, also known as the Blanchard farm, had been assessed by Union Township and Clearfield County to Charles Blanchard on the seated list since 1883, first as 100 acres, and commencing in 1895 as 130 acres.*fn7 In 1900, one year after the sale of the surface tract to Johnston, Blanchard was assessed for 130 acres of minerals, and Johnston was assessed for the surface, both on the seated list. The 1901 seated list indicated that the 130-acre mineral assessment had been transferred to the unseated list but no such assessment ever appeared there. In 1904, 306 mineral acres in Warrant 1990 (which, appellant contends, included the 153 acres comprising the Johnston tract) appeared on the unseated list, in addition to the 187 acres owned in complete fee by Blanchard in Warrant 1990. This entry remained the same in the triennial assessments of 1907 and 1910. Johnston continued to be assessed on
the seated list for 130 acres of surface until 1910 when the acreage was increased to 153. Commencing in 1911 and continuing through 1915, after Johnston's surface assessment was increased to 153, 153 acres of minerals were assessed to the Blanchard Estate on the seated list.
In 1912, the 306 mineral acres on the unseated list were sold by Treasurer's deed to the County Commissioners of Clearfield County for unpaid 1910 and 1911 taxes owed by the Blanchard Estate. In 1916 the 153-acre mineral tract assessed on the seated list, then in the name of the Blanchard Estate, was likewise sold by Treasurer's deed to the County Commissioners for non-payment of 1913 and 1914 taxes.*fn8
The appellee Game Commission traces its ownership of the mineral tract in question from the 1916 tax sale. To support its claim, the following deeds were introduced into evidence in the lower court: (1) a 1918 deed from Johnston to one Zack Marsh transferring the surface 153 acres; (2) a 1919 Commissioner's deed to Marsh for the mineral rights to the 153-acre tract, thus effecting a merger of the surface and mineral titles; (3) a 1935 sheriff's deed (presumably covering the entire fee interest of Zack Marsh pursuant to foreclosure) to the DuBois National Bank with no reservations or exceptions; (4) a 1943 deed from the DuBois National Bank to one Hugh K. Korb; and (5) a 1945 deed from Korb to the Commonwealth of Pennsylvania for use of the Game Commission. Subsequently, in 1957, a lease for the mineral rights was executed between the Game Commission as lessor and appellee Gas Company as lessee.
To validate his claim to the Johnston tract, appellant*fn9 offers alternate chains of title. He first traces the property from Blanchard through the Title Company in 1904, as trustee, then by deed dated September 6, 1957 from the Provident Tradesmens Bank and Trust Company (successor in interest by merger to the Title Company) to the named plaintiffs. To support this chain, he argues that for several reasons to be examined the 1916 tax sale was invalid and did not divest the title of the Title Company, and consequently of the Blanchard heirs, to the tract. In the alternative, appellant argues that even if the 1916 tax sale were not defective for the several reasons asserted, it was nevertheless a nullity because the property had been previously transferred to his predecessor in title by the 1912 sale of 306 mineral acres.*fn10 He contends that the Johnston tract was included in the 306 mineral acre assessment in Warrant 1990, which served as the basis for that transaction.
With these facts in perspective, it is clear that the two questions presented for our determination are the validity*fn11 of the ...