65 W. Va. 429 | W. Va. | 1909
James A. Comley and wife brought an action of assumpsit, in the circuit court of Monongalia county, to recover, from Wesley Eord, the sum of $2,000.00, as a minimum royalty reserved upon a lease of a certain tract of coal. A demurrer to the original declaration was sustained and it was amended. The court overruled the demurrer to the amended declaration and-each count thereof, whereupon certain special pleas were tendered and rejected. Then the case was submitted to the court, on an agreed statement of facts, and there was a finding for the defendant. The court seems to have thought the declaration insufficiemt, since leave was given' to amend and the order recites that it was given because the plaintiffs may have been mislead by the overruling of their demurrer. They declined 'to amend and obtained a writ of error to the judgment against them.
Eord was not the lessee. The lease had been executed to William T. Coburn, who, with his wife, assigned it to Eord by a written instrument, in which they recited that they had affixed their seals, but which bears none. The lease granted to Cobum, for a period of twelve 3rears from'the date thereof, the right to mine and remove all the coal under a certain tract or parcel of land containing 95 acres and 155 poles. This coal the lessors had reserved and excepted from a conveyance of the land which they had executed to one Millholland. The reservation of the coal and mining rights was expressed in the deed to Millholland in the following terms: “But the grantors save and except from the operations of this conveyance all coal * * *
The case may be treated as upon a demurrer to the special count in the declaration, founded upon the lease, it being admitted that there is no right to recover under any of the common counts, since there is no covenant on the part of Ford to pay any rent. So treating it, the attorneys for the defendant in error say (1) there is no privity of contract, nor (2) privity of estate,
The paper executed by Comlej'' to Coburn differs from the ordinary mining lease, such as was construed in the Harvey Coal & Coke Co. v. Dillion, 59 W. Va. 605, and Toothman v. Courtney, 62 W. Va. 167, and other cases referred to in those decisions, in this, that it does not, in terms, demise, let and lease a tract of land for mining purposes. It grants the right to mine and remove the coal and all the rights privileges and easements reserved in the Millholland deed, which include all the necessary, usual or convenient means for working and taking away the coal. The use of a portion of the surface is both necessary and convenient in the mining of coal. A grant of the coal or a right to mine the coal carries with it, by implication, the right to use so much of the surface as may be necessary. This deed expressly gives, not only what is necessarjr, but what may be convenient as well. The right to use a portion of the sunfaee as well as to mine and take away the coal is given for the period of twelve years. Therefore a term or period of use of the surface' land is granted. That it is not granted in express terms is immaterial. A grant by necessary implication is as complete and effective as one made in express terms. Our conclusion, therefore, is that this lease differs from those above referred to in form only and not in substance, and though it may carry some of the features or elements of a license or privilege, it also carries an estate for years in the land.
That there can be no recovery from the assignee of the lessee until either privity of contract or privity of estate is established on the part of the assignee, is uniformly asserted by the authorities. In Railroad Co. v. McIntire, 44 W. Va. 210 the assignee is said to be liable to the lessor because of his privity of estate. If there were an express covenant on the part of the assignee to pay the rent, there would be privity of contract. Taylor on Landlord & Tenant, sec. 436, says tire mere assignment of the lease does not transmit to the assignee any succession in re
Coburn having been vested with a legal estate in the land by this deed, the next inquiry is whether Rord has become owner of it as against Coburn; for, not having taken possession and not having covenanted to pay the royalty or rent, he is not liable therefor to the lessor, according to the weight of authority, unless he has succeeded Coburn in ownership of the estate vested in him. The term is for twelve years. Section 1 of chapter 71 of the Code provides that “no estate of inheritance or freehold, or for a term of more than five years, in lands, shall be conveyed, unless by deed or will.” That this statute is applicable to assignments seems clear. By its terms it is not limited to the mere creation of a term. It says no term for more thau five years shall be conveyed otherwise than by deed or will. The
• If the instrument by which Cobum attempted to assign the lease-to Ford expresses the intention-to convey, by the use of appropriate terms, and would be regarded as a deed, if it were under seal, a question we are not called upon to decide, it is nevertheless no deed, because it is not a sealed instrument. It bears no scroll, seal, letter or mark that the parties could have referred to in the iestimomium clause. That clause says “in witness whereof we have hereunto set our hands and seals.” This is not sufficient as is insisted in the brief for the plaintiff in error. Something must appear on the paper to which the word “seals” may be referred. “The word 'sealed/ inserted in the body of an instrument, promising to pay money, will not make it a specialty, without a seal, an (L. S.) or some equivalent mark annexed.” Mitchell v. Parham, Harper’s (S. C.) Const. Rep. 1; Patterson v. Gallaher, 122 N. C. 511; Vance v. Funk, 3 Ill. 263; Taylor v. Glaser, 2 S. & R. (Pa.) 502. On this question, there seems to be no precedent or rule in any of the decisions of this Court or the Virginia court. A number of decisions by both courts say it is necessary to recognize the seal or scroll in the body of the instrument, if it be one which is not required by law to be under seal, and that it is not absolutely necessary to da so, if it be one which the law requires to be under seal, but in neither class is there any intimation that the seal itself may be omitted. Hence, they have-no application to the question here presented. As the instrument cannot be regarded as a deed, it does not pass the legal title to the lease and there is no privity of estate, from which it follows there can be no recovery from the defendant.
As the declaration shows no election on the part of the de
Eor the reasons stated, the judgment must be affirmed.
Affirmed.