56 W. Va. 581 | W. Va. | 1904
Eli Carney and wife made a lease 3d February, 1898, to E. IT.. Jennings & Brothers for oil purposes of a tract of land, the lease providing that the lessee should give to the lessors one-eighth part of the oil produced, to be set apart in the pipe line' to the credit T>f said Carney and wife as royalty or rent.
Jennings & Brothers bored two oil wells on the land, getting" oil, which was run into the pipe lines of the Eureka Pipe Line-Company. Before operations for oil production were begun' Carney and wife, 6th September, 1900, made a deed conveying-to George W. Barnes all the oil in said land except one sixteenth; but the deed recognized the existence of said oil lease-to Jennings & Bros., and provided that if that lease should expire or become void under its terms, then Barnes should’ have all the oil with the right to produce it on the usual terms of leases for oil and gas purposes. Thus the deed to Barnes operated to give him half the eighth, Carney retaining one half. For the said conveyance Barnes paid Carney a bonus of $3,000 cash, and the deed providod that Barnes should, within thirty days after the first well, and thirty days after the second well should be completed, tubed and tested for oil, pay to Carney $2,000 for each well, if it produced ten barrels of oil per day ■for thirty consecutive days, Carney to give notice to Barnes by writing of the wells being drilled and the amount of their production.
The said deed 'from Carney to Barnes contained this clause: “If said grantee shall, as he may do at his option, omit to pay the said sum of $2,000 for the first well within the time aforesaid, except as hereinafter mentioned, then this grant shall become as absolutely null and void as though it had never been made, and said grantors shall retain the sum above-mentioned as full liquidated damages.”
As above stated oil was produced in the two wells bored by Jennings & Bros. As to the quantity there is conflict of evidence, some of it tending to show less than twenty barrels per day and some of it showing twenty-two barrels per day. Barnes-never was on the ground, but the said deed to him from Carney
The bill prayed also for general relief. Barnes filed an answer to the effect that the true agreement between Carney and wife and ITmstead as agent was as appears in the deed from Carney and wife, except in one particular, that is, that whereas that deed required him to pay $2,000 for each.of two wells producing ten barrels per day, it should have provided that the wells should produce thirty barrels per day; that the said deed should in that place read “thirty barrels," not “ten barrels." His answer states that he was engaged in the business of buying oil royalties in West Virginia and elsewhere, and that he had blank deeds prepared to facilitate the execution of papers showing ihe purchase of royalty, and had furnished ITmstead with a number of such blanks, and that ITmstead had used one of those blanks in said transaction with Carney. He states that the agreement between ITmstead and Carney and wife was in that respect for wells producing thirty barrels, not ten, and that the presence of the word ten in said deed was due to .a mistake in the omission to strike out the printed word “ten" from the blank and insert in its place the word “thirty.” The answer stated that the matter was overlooked by ITmstead and also by said Barnes when the deed was sent to him. Barnes stated that in 'instruction to ITmstead he directed him to require a minimum production from thirty to thirty-five barrels per day for thirty days where the sum of additional money-for wells was of the amount specified in the deed. The answer further states that the territory in which said wells were bored was known to be Gordon or deep sand territory, wherein the drilling of wells would cost $8,000 to $10,000 each, and that wells producing less than thirty barrels per day would be unprofitable, and that operators under
Barnes contests the jurisdiction of equity to entertain this ■suit alleging that Carney and wife have adequate remedy at 'law. We are not aided with any authority cited upon this proposition, though we have had some difficulty with it. We 'have, however, concluded that equity has jurisdiction for the •purpose of cancellation of the instrument that is attacked. We
There is no jurisdiction where the face of the instrument speaks its voiclness. 6 Cyc. 290; 18 Ency. PL & Prac. 759;. Story, Eq. section 700. Rich v. Braxton, 158 U. S. 375, holds-that, where the face of a deed tells its voidness, or the claimant under it must, to rise it, inevitably prove facts showing it to be-void, equity has no jurisdiction to cancel; but where evidence-outside the deed is required to prove it void, equity jurisdiction is conceded. Such outside evidence wuld be required as to the-deed involved in this case.
How, it is true that these principles are applied to instruments void from their beginning, which never had any force; whereas the deed in this case was valid when executed, and only become void afterwards by reason of a condition subsequent incorporated in it; but what difference is this? It has become-void, and there is just as much danger of its being used to vex its makers, to cloud their title, to put them in danger, to injure the sale of their property, as if it had been void from the first. What the party needs, and what equity concedes him, is a formal adjudication of a court utterly destroying the deed, and rendering it ineffectual in future whenever relied upon. A law judgment cannot do so. As the opinion says in DeCamp v. Carnahan, 26 W. Va. 839, in a case like the one at bar, the remedy is not so full, adequate and complete at law as in equity. The parties will be obliged to rest, if the Court holds that the 'deed sought to be removed as cloud on the title is void and cancels it; if the Court refuses to cancel because the deed is good, they must also rest; for in either case the question is settled. I am outspoken to say that I have always favored equity jurisdiction in such cases, because it gives the only adequate relief. Partial,, incomplete relief a court of law may give, but a decree in equity wipes away the dangerous instrument, takes away its-life. Is this not a plain case calling for equity jurisdiction? If Carney were entitled to relief, how could he get it at law?' Suppose he sues Barnes for money received by him for oil, and sustains his action because the deed has, by its terms, come to-an end, and he recovers. The decision would likely be res yu-
The judgment of recovery of money by Carney against Barnes might be introduced as evidence of Carney’s title in an .action by him against the Pipe Line Co. in trover, detinue or assumpsit, granting that one or more of those actions would lie against the Pipe Line Co., but the recovery would not operate •as an estopel against that company. Carney wants a decree which will, at one stroke, destroy the deed, declare his right to all the royalty, and compel those companies to recognize his right, making the decree res judicata against all of them. To deny chancery jurisdiction because of law.remedy the law remedy must be as complete as that afforded by chancery. Rich v. Braxton, 158 U. S. p. 407; Hogg Eq. Principles, 5; Nease v. Ins. Co., 32 W. Va. 283.
Here is a deed passing a present estate, a vested estate, containing a condition subsequent to defeat the deed upon the contingency of Barnes failing to pay money, his non-performance of a material condition. Has not Carney a right to call upon a court to ascertain and declare that Barnes has not performed that condition, and not leave it to controversy and doubt? We find it laid down in 6 Cyc. 288, that, “Non-performance by the defendant has occasionally been treated as a sufficient ground for rescission of a contract by decree in equity; but the weight of evidence is against this view. Thus a conveyance of land in consideration of the grantee’s agreement to support the grantor during life will not, according to the weight of authority, be canceled for the mere failure to fulfill his con
But in this case there is a positive provision in the deed that non-compliance shall work the death of the deed, and surely nnder the rule stated in Cyc. there cannot be a doubt of the-power of equity to cancel the deed for non-performance with a subsequent condition, which by that deed, in express words, is to end it. In Pownal v. Taylor, 11 Leigh 172, it was admitted that if a covenant in a deed for support is not complied with,, and the deed provides that it shall become null on that account, it would be avoided. We have cases in Virginia and West Virginia holding that failure to comply with a material provision of a deed is often ground for equity to cancel it, as for failure-to support the grantor. Lowman v. Crawford, 40 S. E. 17, 99 Va. 688. Wilfong v. Johnson, 41 W. Va. 283, cancels a deed for support without such clause. Goldsmith v. Goldsmith, 46 W. Va. 426, cancels a deed containing a forfeiture clause. In the absence of a clause in words defeating a deed for non-compliance with its provisions, I would limit equity jurisdiction to cases where cancellation affords, in the particular case, the only full and complete relief. In this ease the deed provides-that non-performance shall work its death, and I have no doubt of the right of Carney, if he had good cause, to appeal to equity to give him the only full relief suitable to this case.
But though there is equity jurisdiction, we hold that Carney and wife are not entitled to the relief they ask. We are of the-opinion that the provision of ten barrels in the deed does not state the true contract as made between TJmstead and Carney, and that it ought to contain the word “thirty” instead of “ten.” Carney now contends that the contract was ten barrels; but his evidence and a letter from him are inconsistent with this position. Pie says that a few days before the execution of the deed he and TJmstead made the contract; that TTmstead asked him what quantity should be put in the clause specifying the quan
“Silverhill, May 1, 1901. Mr. Umstead dear sir received your letter and signed that paper and will mail it today. I am surprised in regard to that contract for I was sure in My Own Mind that it was 20 barrels instead of 30. I am satisfied that the well was to be tested for 30 days and the production 20 barrels but was surprised to see the contract not changed from 10 to 20 I wouldn’t argue the point when you was out here for I thought all that was necessary was to look up the contract. Eli Carney.”
That was written when he sent Umstead the compromise -contract. All this shows conclusively that ten barrels was not
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