6 W. Va. 200 | W. Va. | 1873
This is an appeal from orders made by a judge in vacation, in a case in Pitchie county, on the 4th day of June, 1872, upon the bill, and prayer therein of Plaintiff.
Plaintiff alleges that in 1854, she purchased, and had conveyed to her by Walter Keeler and wife, a certain tract of 2,000 acres of land, lying mostly in Kitchie county; that on, or about the 27th day of December,
The Company and E. L. Gale, (Plaintiff’s husband,) are made Defendants to the bill. An injunction prohibiting the Company, its agents, &c., from operating upon the land in any manner; from taking, removing or in anywise disposing of the products of the land, oil or other thing, and from removing the oil on hand, and from selling' or assigning the lease, or any interest therein, and that a special receiver be appointed to take care of, and operate the wells upon the land, and prevent the loss and waste thereof, and any fixtures or machinery thereon during the pendency of the ejectment, &c., are prayed.
The deed of lease, which is filed as an exhibit, recites, that in consideration of $20,000, in hand paid, Edmund L. Gale and Mary Gale his wife, demise, &c., the land for the term stated in the bill, yielding therefor, in addition to the $20,000, one-fourth part of the oil that may be produced from the land — the oil to be delivered in the tank or tanks, or to be filled in barrels to be provided by Plaintiff and her husband ; that .the lease is made in fulfilment of a contract of lease between E. L. Gale and John S. Carlisle, on the 5th day of November,
The case is important on account of the principle as well as the great amount of property involved in its determination. The principle involved is important, not only to the parties to this suit, but to all persons within the State, occupying the relation of landlord and tenant. The lease filed contains no covenant or condition for re-entry, in case of failure or refusal to pay the rent, or for any other cause. The bill does not state whether Plaintiff was married or single, when the 2,000 acres of land were conveyed to her by Keller and wife; nor does it state the price paid for it, or that it is the separate
The Plaintiff predicates her right to recover in the action of ejectment the unexpired term of the lease, upon the supposition that the reversion in fee simple in the land being vested in her, she, without reference to the marital rights of her husband, but in disregard thereof, has the right to treat the company as a wrongdoer and trespasser, because the company, in March, 1872 ■ refused and failed to pay the rent reserved in oil, to her’ or to her husband, or any other person for her; and did then and there allege as ground of such refusal and failure to pay the rent oil, that a certain "William Cady had notified and ordered the company not to pay the said, or any rent-, to, either the Plaintiff or to her husband, though by the terms of the deed of lease bound so to do. In
It is said that any act of the lessee by which he dis-affirms or impugns the title of his lessor, occasions a forfeiture of his lease, for to every lease the law tacitly annexes a condition, that if the lessee do anything that may affect the interest of the lessor, the lease shall be void, and the lessor may re-enter.—Bacon’s Abr. Lease, T. Woodfall, Land and Ten., 150. In the case of Graves vs. Wells, 10 A. & E., 427, it was said: “Ño case has been cited where a lease for a definite term has been forfeited by mere words.” “ One thing in respect to a tenant’s disclaimer of his landlord’s title seems to be well settled. He cannot set up an adverse claim which may operate to bar his lessor’s title by adverse possession Under the statute of limitations, until lie shall have expressly disaffirmed such title of his lessor, and given him full notice that he claims to hold adversely thereto.” — 1 Washburne on Real Property, pages 377 and 378.
It will be observed by reading the authorities cited that a distinction is made by many between tenants for years unexpired, and tenants from year to year, or at will. “ It was probably also no ground of forfeiture of a lease for years at common law, though sometimes said to be, that a lessee had merely verbally asserted his own title to the premises, and on that ground refused to pay rent. Certainly a mere denial of the landlord’s title by
Prom the confusion of the authorities it is difficult to define with clearness and satisfaction what words and acts will work a forfeiture of an unexpired term for years. By the common law a tenant for life may forfeit his estate by disclaiming to hold of his lord, or by affirming or impliedly admitting the reversion to be in a stranger. This doctrine is founded in a rule of the feudal law, that if the vassal denied the tenure he forfeited his feud. Now, this denial may be when the vassal claims the reversion himself, or accepts a gift of it from a stranger; for in all these cases he denies that he holds the feud from the lord. But as by the feudal law the vassal was to be convicted of this denial, so in the English law, those acts which plainly amount to a denial must be done in a court of record, to make them a forfeiture; because such act of denial appearing on the record is equivalent to a conviction upon solemn trial. All other denials that might be used by the great lords for trepanning their tenants, and for a pretence to seize their estates were by our law, rejected, for such convictions might be obtained without any just cause; but the denial of tenure upon record could never be counterfeited, or abused to any injustice. — 1 Lomax’s Digest, 45.
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. — Code of West Va., chapter 71, section 1. The deed of lease in this case was made, ac-
For these reasons, the order of the Judge granting the injunction awarded in this cause on the 4th day of" June, 1872, and also the order made on the 3d day of" June, 1872, appointing a special receiver to take charge-of the property in the bill and order mentioned of the same date, and from which the appeal in this cause is taken, must be reversed, as being improvidently granted and made, and the injunction dissolved, and the bill dismissed with costs to Defendant in the Court below; and The Oil Run Petroleum Company must recover against Mary Gale its costs in this Court expended. All which must be certified to the Circuit Court of Ritchie County.