76 W. Va. 300 | W. Va. | 1915
On the 5th of August, 1907, O. F. Ferrell and wife executed to the Brammer Oil & Gas Company an oil and gas lease upon 214 acres of land in Logan county. That company made an absolute assignment of the lease to the Castle Brook Carbon Black Company, the plaintiff, on the 19th of May, 1913. A paying gas well was drilled -on the land in the year 1910, and plaintiff has been using the product therefrom in the manufacture of carbon black, and has paid regularly the gas royalties therefor, which the lease stipulates shall he $50 for each three months in advance, for each and every g-as well from which the product is marketed and used off the premises, until the payment which became due on February 5, 1914. That payment plaintiff admits it failed to pay for a period of sixteen days, and alleges that its failure to make prompt payment, in that instance, was due to the serious illness and subsequent death of its president and to the illness of its secretary-treasurer, who were its active managers charged with the duty of paying the royalties. Plaintiff deposited the $50, due on the 5th of February, on the 21st of the same month in the Guyan Valley Bank, to the credit of the lessors, as the lease provided might be done, hut the lessors refused to accept it, claiming that, by failure to pay promptly on the day it was due a forfeiture of the lease had occurred. Shortly thereafter the lessors executed an option-for a lease upon the same land to one William Shipe, the said Shipe agreeing with them that, in case of litigation between them and this plaintiff, he would assume the charge and burden thereof. On the 8th of April, 1914, the lessors instituted an action of unlawful detainer, in a justice’s court, to recover possession from plaintiff, and it, thereupon, brought this suit in equity, praying to be relieved from the forfeiture, if such there is, and that the lessors be enjoined from further prosecuting their action to recover possession, and also for
The foregoing facts, averred in the bill and shown by the exhibits, are taken as true, there being no denial of them.
Counsel for appellees insist that the bill was properly dismissed for a number of reasons, one of which is the failure to make plaintiff’s assignor, the Brammer Oil & Gas Company, a party. .It appears that the assignment to plaintiff was of all the interest and right the Brammer Oil & Gas Company had acquired under the lease, and that it was absolute and unconditional. No relief was asked for against it, and none could have been given. It could have had no interest in, nor could it have been affected by any decree that could properly have been made in the cause. Hence there was no reason why it should have been made a party to the bill, and it was properly omitted therefrom. While, as a general rule, it is necessary' to make the assignor a party to a suit in which the rights of the assignee are to be adjudicated, the present case falls under a well recognised exception to that rule. “When the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is neither doubted nor denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the assignor a party.” Vance v. Evans et al., 11 W. Va. 342. To the same effect are the following decisions; James River & Kanawha Co. v. Littlejohn, 18 Grat. 53, which qualifies and limits the application of the broad rule asserted in the earlier case of Corbin v. Emmerson, 10 Leigh 663; Omohundro v. Henson et al., 26 Grat. 511; and Scott v. Ludington, 14 W. Va. 387.
The lease was to be in force for a term of ten years and as long thereafter as either oil or gas was produced. The lessee covenanted to deliver in the pipe line, to the credit of the lessor, one-eighth of the oil, and to pay fifty dollars each three
But may not the hill he maintained as one to quiet title? It avers that the lessors have, in disregard of plaintiff’s right, executed an option for a lease to one William Shipe, and have also instituted an action of unlawful detainer before a justice of the peace to recover possession. This shows that the lessors are asserting a claim adverse to plaintiff’s leasehold estate, or vested right to convert and dispose of a material part of the realty; and that they manifest a determined purpose to execute another lease on the same land which, when executed, will unmistakably constitute a cloud on plaintiff’s title. Why, therefore, may not a court of equity exercise its power to prevent such a wrong? We see no good reason why it may not. That equity has jurisdiction to determine the rights of conflicting claimants claiming the same property under separate leases from the same lessor, is well settled by previous decisions of this court. Peterson v. Hall, 57 W. Va. 535; Mustard v. Development Co., 69 W. Va. 713; and Pyle v. Henderson, 55 W. Va. 122. There is, therefore, no doubt of equity jurisdiction to cancel an oil and gas lease, as a cloud on the title of the holder of a superior oil and gas lease on the same land, made by the same lessor or his privy
But it is claimed- that the bill is not good as one to quiet title because of faüure to aver possession by plaintiff. It does not in terms do so, but the fact of plaintiff’s possession appears from other averments, and that is sufficient. Plaintiff avers that, ever since it acquired the lease from the Bram-mer Oil & Gas Company, it has been making use of the gas from the Ferrell well in the manufacture of carbon black and has paid promptly, in advance, all the quarterly royalties, except in the one particular instance; it also avers that the lessors had brought an action of unlawful detainer against it to recover the possession. These averments, undenied, are sufficient to show plaintiff’s possession.
. Having determined that no forfeiture of the lease had occurred, it becomes unnecessary to decide the question presented in brief of counsel for defendants, whether the plaintiff in its bill should have admitted the forfeiture in order to obtain relief therefrom.
The decree is reversed, and an order will be entered here overruling the demurrer to the bill and remanding the cause
• Reversed and remanded.