Opinion,
Mr. Justice McCollum:The Hillside Coal & Iron Company, a domestic corporation, is in possession of and engaged in mining the coal field in dispute. It has the title thereto which Thomas Meredith acquired by his contract with Isaac London, on the first day of October, 1828, which was confirmed by a conveyance dated the tenth day of December, 1838. By an agreement in writing between London and Meredith, bearing even date with the conveyance, there was a modification of the original contract, including an extinguishment of the rent reserved in it. The appellants are. the heirs of Burr Kenyon, who entered into possession of the land containing the coal field under a deed from Isaac London executed and delivered on the fourteenth day of. February; 1840, in which the coal covered by the contract and conveyance to Meredith was excepted from the grant. Their contention is that Meredith was a lessee of the coal, and that his rights under the lease were lost by abandonment and nonpayment of rent; that Kenyon’s possession under the London deed was hostile to the Meredith title ; and that the dismissal of the bill in equity filed by Benjamin S. Bentley against Burr Kenyon in the Court of Common Pleas of Luzerne county, on the eleventh day of August, 1860, was an adjudication against it, which, unreversed, is a bar to any claim founded upon it.
*627Isaac London’s title to the coal field cannot be controverted in this action. The appellee is in possession of it under his grant to Meredith, and the appellants demand possession of it, and hold the land overlying it under his deed to their ancestor. As the respective titles of the parties litigant are dependent on the conveyance from him, our first inquiry relates to their construction, and the estates or interests acquired by them.
The original agreement between London and Meredith was acknowledged on the thirty-first of July, 1829, and recorded on the fourteenth of August following. It was called a lease, and it was stipulated therein that London should execute such further writings as counsel learned in the law might deem necessary to secure to Meredith, his heirs and assigns, the full enjoyment of the premises as a coal field. In fulfilment of this stipulation, London made to Meredith a deed, which was acknowledged on the fifteenth, and recorded on the twenty-fourth of December, 1838; being the conveyance to which we have already referred as in confirmation of the original contract. These instruments gave to Meredith, his heirs and assigns, the right to possession of the coal field for a term of one hundred years from the first of October, 1828, for the purpose of mining, removing, and selling coal, subject only to the payment of the nominal rent of one dollar a year, and to the agreement of Meredith that London or his heirs, while residing on the premises, should have the right to dig coal for their own use. In the agreement, of even date with the conveyance, the clause in the original contract “ relative to the right of London to dig coal for his own use ” was extended “ to such person' or persons as he might sell to, but to no others; ” and the provision in said contract for the payment of rent was declared null and void in consideration of the satisfaction of a certain judgment which Meredith and others held against London in the Court of Common Pleas of Luzerne county. When, therefore, Kenyon received possession of the premises under his deed from London, he was invested with the privilege, while he resided thereon, of digging coal there for his own use, and, subject only to the exercise of this privilege by him, Meredith had the exclusive right to the coal, with a definite term in which to mine and remove it.
The agreements between London and Meredith, and the *628deed from the former to the latter, constituted a sale and conveyance of a coal field for a consideration paid, and a severance of the title thereto from the title to the overlying surface. They created an estate in Meredith, his heirs and assigns, which was distinctly excepted from the grant to Kenyon, and of which he had, by the record as well as by the exception, full notice. These instruments conferred on Meredith and his successors in title an exclusive right to mine and sell all the coal in the tract described, subject to the exercise b^ the grant- or and his vendee of the privilege aforesaid. It is obvious that the parties to them intended a sale of the coal. The sum paid for the mine-right was the price of the coal in place, and in London’s receipt on the first contract, it was called “ purchase money.” A grant of a mine-right under which the grantee is authorized to remove and sell, for his own benefit, all the coal contained in a tract described, is. a sale of the coal, and not a lease of it. It is contended, however, that the creation of a term within which the right is to be exercised clearly stamps the transaction as a lease. In Hope’s App., 29 W. N. 365, the instrument was in form a lease for a term of ninety-nine years, and it was held to constitute a sale of the coal, with a definite term in which to mine and remove it. In Montooth v. Gamble, 123 Pa. 240, the agreement was regarded as a sale of coal, to be mined and removed within seven years, although it contained a provision that the coal unmined, if any, at the end of the term, should revert to the vendor. Where a fair interpretation of the written agreement shows that a sale was intended by the parties, and a right to mine and remove all the coal is conferred by it, in express terms or by plain and necessary implication, it will constitute a sale, notwithstanding a term is created within which the coalisto be taken out. We hold that the writings in this case constituted a sale of the coal to be mined within the term stated therein.
In this view of the case, Kenyon’s possession was not hostile to the Meredith title, and no question of forfeiture arises. The dismissal of the bill in equity for want of jurisdiction was not an adjudication against that title, and the appellants take nothing by it in this contest. We think the court below committed no error in directing a verdict for the defendant.
Judgment affirmed.