192 Mo. 228 | Mo. | 1905
This is a suit in ejectment to recover possession of certain lands lying in section 1, township 50, range 27, and in section 36, township 51, range 27, in Lafayette county. Judgment was rendered for defendant in the trial court and the plaintiffs appealed.
THE ISSUES.
The petition alleges that the plaintiffs are the widow and children of Alexander Brooks, who died in February, 1901; that on the 1st of February, 1899, Alexander Brooks entered into a written coal lease, with the defendant, of the premises in controversy, whereby he leased to defendant the premises for a term of twenty-five years unless sooner terminated or forfeited by the terms and provisions of the lease; that the lease conferred upon the defendant no right to use the surface of the land except for the maintenance of one airshaft for ventilating the mine; that all coal mined from the prem
The petition then alleges that the defendant was guilty of a breach of the conditions of the lease in the following respects: First, that he failed and neglected for the first two years of the lease and up to the filing of the petition, to mine and remove sufficient coal to keep the face of the mine on plaintiff’s premises even with the face of the coal of the defendant on the adjoining land mined by him; second, that he neglected and refused in good faith and expedition to remove coal from said premises; third, that he neglected and refused in good faith to mine during the remaining years of said lease and to' remove at least 16,000' bushels per month from September 1st of each year to April 1st of the following year and at least one-fourth' of that amount during the other months of the year; fourth, that he failed and refused to make settlements on the 20th of each month during said lease of all or of any coal mined to the first of such month, and failed, neglected and refused to make any settlement or payment whatever for any coal mined by him, and failed and neglected to mine the minimum amount of coal required by the. terms of this lease for four consecutive months or more; fifth, that he failed and neglected to have a survey made of said mine twice each-year at his own expense and exhibit the same to the lessor dur
The petition then avers that in consequence of such breaches, the plaintiffs, on the 21st of June, 1901, served defendant with a written notice of forfeiture of said lease, but notwithstanding such notice the defendant continued in the possession of the premises and refused to surrender the same to the plaintiffs. The ouster is then laid as of the 21st of June, 1901. The monthly rents and profits are averred to be $100. The petition then avers that on and after June 22, 1901, the defendant committed waste on the premises, by digging, excavating and carrying away coal therefrom to the amount of $500. The prayer of the petition is for possession, $100 monthly rents and profits, and $500 waste.
The answer of the defendant admits the ownership of the property and the execution and terms of the lease pleaded by the plaintiffs and then by way of defense pleads that on the . . . day of September, 1899, the lessor and the defendant entered into a verbal agreement modifying the lease by stipulating that the defendant should make no more surveys until notified by the plaintiff so to do; that thereafter in September, 1900, the lessor notified the defendant to have a survey made of the mine, and that he had employed one J. A. Wilson to survey the mine, and that he had exhibited said survey to the lessor, and that the survey showed that the defendant was not upon the lessor’s land and had taken no coal therefrom, and that the lessor accepted the survey and made no objection thereto; that in July, 1901, the defendant had said Wilson survey the mine and that the survey showed that he had been excavating coal on plaintiff’s land, and that the survey made by said Wilson in September, 1900, was an imperfect and incorrect survey; that as soon as defendant ascertained this fact he caused said Wilson to determine the area of plaintiff’s land mined and excavated by defendant and the number of bushels of coal taken there
The reply denies that any verbal modification or change was made in the lease, and also that the lessor or the plaintiffs agreed with the defendant that he should make no more surveys until notified; admits that defendant had Wilson make a survey of the land in September, 1900, to determine the area of the plaintiffs’ land mined and excavated by defendant but denies that the defendant did the same as soon as he ascertained that said survey was improper and incorrect; denies that the coal mined only amounted to $184.66 on the .... day of July, 1901, and denies that on the 20th of March, 1901, and on each month thereafter, defendant had at his mines the number of bushels mined by him on plaintiffs’ land, or that he tendered to plaintiffs the
The reply further avers that said survey was the only survey that defendant had made until after the institution of this suit.
The case made is this:
The defendant and Brooks owned adjoining premises. The defendant had opened a mine on his premises and had constructed a slope or entry to his mine, and was proceeding southwardly in his mining operations. On the 1st of February, 1899, Brooks executed a mining lease to the defendant, conferring upon him a right to mine coal under Brooks’ land, which lay on the west of defendant’s land. Under the terms of the lease the defendant agreed, in good faith and with proper -expedition, to mine and remove the coal from Brooks’ premises so that for the first two years of the lease the defendant should mine and remove sufficient coal from Brooks’ premises to keep the face of the mining on Brooks’ premises even with the face of the coal on defendant’s premises, and to pay for the coal mined at
The lease further provided that if the defendant failed to mine the minimum amount of coal provided for in the lease for four consecutive months, the lessor should have the right to terminate the lease by giving to the defendant written notice thereof, and thereupon the defendant should have the right to remove from the mines all tracks, fixtures, mining apparatus and tools he had placed in the mines upon first paying to the lessor the amount due him.
The lease further provided that on the non-performance of or non-compliance with any of the terms or conditions of the lease by the lessee the lease should be forfeited at the option of the lessor, who should be entitled to re-enter and take possession of the premises on ten days ’ written notice to that effect, and the lessee agreed to surrender the possession upon the termination, expiration or forfeiture of the lease without further notice or demand than provided in the lease.
The lease further provided that the lessee should have a survey made of the premises twice each year at his own expense and should exhibit the same to the lessor “se as to show how the face of the coal is progressing on his land.”
The defendant entered into possession under said
The testimony for the defendant tends to show that at some time, perhaps in September, 1899, the lessor and lessee agreed that there should be no semiannual survey made by the defendant until he was notified by the lessor so to do, and that he was notified to have a survey made in September, 1900, when the first incorrect survey was made by Wilson. The whole testimony is convincing that prior to that time the lessor believed that the defendant was mining coal on his premises.
The testimony on the part of the plaintiffs tends to show that prior to the survey of September, 1900, when the lessor was insisting that the lessee was on his premises, one of the defendant’s workmen told the defendant of the lessor’s claim, and also told him that he thought they were about ninety feet over onto the lessor’s property, and that the defendant said, ‘ ‘it was not necessary for him to know where he was at.”
On the other hand, the testimony of the defendant tends to show that up to the time the notice of forfeiture was given the defendant believed that he had not mined nearer than nine feet to the lessor’s premises.
Upon the whole case made, however, there is no room for controversy or cavil that as early as Septem-
It is conceded by the testimony of both parties that the defendant never kept correct accounts of the coal taken from the leased premises. All the coal that came out of the mine, without regard to whether it was taken from the defendant’s premises or from the leased premises, was weighed together and no separate account of the portion that came from the leased premises was attempted to be kept by the defendant. There is, therefore, no exact method of determining how much coal the defendant mined from the leased premises. The only way of approximating the amount is by a survey of the excavation, and this is not certain, for the reason that there is a great conflict in the testimony as to the thickness of the veins of coal, the plaintiffs’ testimony tending to show that the coal varied from eighteen to twenty-two inches in thickness, while the testimony for the defendant tended to show that the vein varied from eight to sixteen or eighteen inches. In addition to the conceded fact that the defendant never attempted to excavate on the west half of the leased premises, and never, at any time before the notice of forfeiture, attempted to account to or pay over to the lessor or his
The court refused all of the instructions asked by the plaintiffs and gave all those asked by the defendant. The first instruction asked by the plaintiffs was a peremptory instruction that the plaintiffs were entitled to a judgment. The second instruction asked by the plaintiffs declared that the lessee was not excused for failure to perform the conditions of the lease because of ignorance on his part as to the progress of the mining, induced by the erroneous survey which the defendant had caused to be made. The third instruction asked declared that the defendant was not excused for failure to keep the face of the coal mined on the leased premises practically even with the face of the coal mined on the defendant’s premises because he was misled by the erroneous survey of September, 1900, or because of his ignorance of the fact that he was already on the leased premises. The fourth instruction declared that it was the duty of the .defendant, under his lease, to keep the face of the coal across the whole of the leased premises practically even with the face of the coal on the defendant’s premises, and that if the defendant failed in this regard he forfeited all his rights under the lease. The fifth instruction asked by the plaintiffs declared that if the defendant in fact removed coal from the east half of the leased premises and none from the west half thereof during the first two years, and believed that he
The first instruction given for the defendant declared that if the lessor during the year 1899 notified the defendant not to make any more surveys until required so to do by the lessor and that in August, 1900, the lessor notified the lessee to have such a survey made and that the lessee procured a survey to be made by Wilson, a deputy county surveyor, and that Wilson made a mistake in the survey and did not show by the survey that the defendant was mining on the lessor’s premises, and that the defendant exhibited the survey to the lessor and he accepted it as correct and that both parties relied on the survey believing it to be correct, then there can be no forfeiture of the lease by reason of the fact that the defendant did not have two surveys made each year, or because of the fact that the survey of 1900 was incorrectly made. The second instruction given for the defendant declared that there could be no forfeiture of the lease if the surveyor made a mistake in Ms survey. The third instruction given for the defendant declared the law to be that there could be no forfeiture of the lease for failure of the defendant to keep full and correct accounts of all coal mined on the lessor’s land, if such failure arose from the fact that he did not then know that he was mimng on the leased land. The fourth instruction given for the defendant declared the law to be that if the defendant mined four
As before stated, the court entered judgment for the defendant, and the plaintiffs appealed.
I.
This case was tried by both parties in the circuit court upon the theory that the answer converted it into a proceeding in equity, and Dunn v. McCoy, 150 Mo. 561; Cox v. Sloan, 158 Mo. 429, and Leavitt v. Taylor, 163 Mo. 170, are relied on as establishing the correctness of that procedure. The principles announced in the cases cited when applied to the answer filed in this case do not, strictly speaking, convert the case into one in equity. In all of the cases cited the answer was in the nature of a cross-bill and affirmative relief was asked. It is only in such cases that the answer can convert the cause from one at law into one in equity. In other instances where mere equitable defenses are pleaded and no affirmative relief is asked by the defendant, the case is not converted from one at law to a proceeding in equity.
The answer in the case at bar pleads equitable defenses but asks no affirmative relief. The defenses pleaded, if sustained, would defeat the action at law, but there the matter would end, and no affirmative judgment in favor of the defendant could be entered against the plaintiffs under the answer in this case. For
n.
Forfeiture.
The lease provided that the lessee, in good faith and with all proper expedition, should for the first two years of the lease mine and remove sufficient coal to at least keep the face of mining on the leased premises even with the face of the coal on the land of the defendant, and that during the remaining years of the lease the defendant should remove at least 16,000 bushels per month from September 1st of each year to April 1st of the following year, and at least one-fourth of that amount during the other months of the year, and whether these amounts were mined or not the defendant should pay for these amounts at the rate of one-eighth of a cent per bushel, and if the amount mined in any one year exceeded 300,000 bushels, then at the rate of one-tenth of a cent per bushel, and that the defendant should correctly weigh and keep full accounts of all the coal mined from the plaintiff’s premises and pay for the same on the 20th of each month, and if he failed to mine the minimum amount of coal provided for for four consecutive months the lessor should have the right to terminate the lease, and upon giving ten days’ notice of intention so to do the lessor should be entitled to re-enter and take possession of the premises, and the defendant would surrender the possession without further notice or demand, and further that the defendant. should cause two surveys to be made each year so as to show how the face of the coal was progressing on his land.
The lease was executed on the 1st of February, 1899. The notice of forfeiture was served on the de
This survey showed that the defendant had proceeded with his mining operations for a distance of 670 feet on a straight line, on the east half of the leased premises, and had kept the face of the excavation about even with the face of the coal on the defendant’s land, but that the defendant had wholly failed to mine any coal on the west half of the leased premises, and hence had wholly failed to keep the face of the coal on said west half even with the face of the coal on the east half of the leased premises and on the defendant’s premises.
The defendant interposes two principal defenses, to-wit: first, that the lease was modified verbally so as to dispense with the semiannual surveys until the lessor should notify the lessee to continue the same, and that upon said notice being given by the lessor in September, 1900, the lessee caused a survey to be made, which is conceded to be an erroneous and improper one,
The lessor died about February, 1901, so that the plaintiffs could offer no countervailing testimony to overcome the loose statements of witnesses attributing to the deceased his consent to a modification of the lease requiring semiannual surveys. Under such circumstances such statements are viewed with extreme caution by the courts, and in the view hereinafter taken this feature of the case becomes unimportant, for the principal object of the requirement for semiannual surveys was to determine whether the defendant had kept the condition of the lease to so mine on the leased premises as to keep the face of the coal practically even with the face of the coal on the defendant’s premises. The purpose of this provision of the lease was not, primarily, to determine how much coal the defendant had taken out from the leased premises, for the lease provided a more certain method of determining that question, to-wit, by requiring the defendant to weigh and keep correct accounts of all the coal taken from the leased premises. For the purposes of this case, therefore, it is not necessary to decide whether or not the original lease was modified verbally as claimed by the defendant. The principal defense made is that the defendant did not know until the survey of July, 1901,
There are two complete answers to this defense, to-wit: first, the claimed mistake in the survey of September, 1900, was not an honest mistake made by the defendant based upon a fair and honest survey by a deputy county surveyor; and, second, the obligation of the lease imposed the duty upon the defendant not only to know certainly whether or not he was on the leased premises, but likewise and equally imposed the duty upon him to be on the leased premises and so conduct his mining operations that the face of the coal for the full width of the leased premises should be kept substantially even with the face of the coal on the defendant’s premises. This being true there is no room for the application of the doctrine of mistake to this case. Under the terms of the lease it is no defense for the defendant to say he did not know he was on the leased premises, for the absolute requirement of the lease was that he should at once enter upon the leased premises and should so remove the coal therefrom that the face of the coal on the leased premises should be substantially even with the face of the coal on the defendant’s premises. The defendant, therefore, cannot be heard to say that he did not know he was on the leased premises and labored under a mistaken apprehension in this regard from a reliance upon an erroneous survey. He was guilty of a breach of the conditions of the lease in this regard when he failed to enter upon the leased premises and to so mine the same. That he did so fail is clearly shown, not only by the erroneous survey of September, 1900, and by the subsequent survey of July, 1901, but was also easily ascertainable by the defendant without the aid of a survey at all, and the evidence,
If it be conceded that the semiannual surveys were dispensed with until September, 1900, as the defendant claims, the fact still remains that the defendant up to the date of the notice of forfeiture had been guilty of a breach of every other condition of the lease. He had not mined the whole of the leased premises as he had agreed to do; he had not, in good faith and with expedition, proceeded to remove coal from the leased premises. During the first two years of the lease he never mined any coal from the west half of the leased premises nor did he do so at any time; he never weighed all the coal mined on the leased premises and kept accounts thereof, but on the contrary threw all the coal taken from the leased premises into a common mass
In 'short, during the sixteen months and twenty-one days, between the execution of the lease and the notice of forfeiture, the defendant had never complied in good faith with any of the provisions of the lease. After the lessor had exercised the power conferred by the lease and declared a forfeiture of the lease, he tendered the lessor’s representatives the munificent sum of $27 or $47 as payment in full for all coal mined, and after suit was brought he tendered $184.66, and now claims to come into court with clean hands and asks the court to relieve him of a forfeiture caused solely and entirely by his own acts, defaults and omissions. This is as strong a ease as could be stated in favor of the right of enforcing a forfeiture, and if a forfeiture cannot be enforced in this case it must be because there is no such thing as a forfeiture known to the law, and hence all
Time and space forbid an extended examination of the multitude of cases bearing upon the question of forfeiture and re-entry. The learning of ages has been expended in the attempt to formulate a rule upon this question which will fit all cases. The tendency of courts has ever been to regard provisions of this character as mere covenants, for the violation of which the injured party is entitled to damages, and not as conditions subsequent, for the breach of which the injured party is entitled to declare a forfeiture and to re-enter and recover possession of the premises. A careful analysis of most of the cases relied upon by the defendant will show that they proceed mainly upon the proposition that the stipulation of the lease in question did not carry with it a right of re-entry, or else that the provision of the lease did not go to the essence of the contract but involved a mere incident thereto, and the violation or breach of the provision could be fully compensated in damages. Whatever may be the rule in other States, and whatever expressions may be found in the earlier cases, which seem to bear out the idea that ejectment will not lie for the breach of a condition subsequent, the later decisions in this State fully sustain the doctrine that where the deed contains a provision for forfeiture for a breach of an essential condition of the deed, ejectment will lie for the possession of the premises. The earlier cases were made to depend largely upon the question whether or not the right of reentry was expressly reserved, but the later cases in this State hold to the rule that a right of re-entry need not be expressly reserved, but such a right is a necessary incident to the condition, and if the condition is broken the right of possession immediately arises. [Ruddick v. Railroad, 116 Mo. l. c. 31 and 34; Kirk v. Mattier, 140 Mo. l. c. 34.]
The first case cited was an action at law for dam
The case at bar is certainly as strong in favor of the plaintiff as the Kirk case. In the Kirk case the obligation of the lease was to sink a shaft two hundred fleet during the first year of the lease; the lessee actually sunk a shaft ninety feet. In the case at bar the obligation of the lease was that the lessee should mine the leased premises so that for the first two years the face
For these reasons the judgment of the circuit court is reversed and the cause remanded with directions to enter judgment for the plaintiffs for the possession of the premises sued for, and furthermore to ascertain the damages for the detention of the premises, and to enter judgment in favor of the plaintiff therefor.