49 W. Va. 350 | W. Va. | 1901
Lead Opinion
By deed dated July 25, 1896, Rachel A. Myers and James Myers, her husband, conveyed with general warranty to Elizabeth J. Harris, the wife of B. E. Harris, a tract of about fifty-two acres of land in Tyler County, which deed contained the following clause: “The parties of the first part reserve unto themselves and do not convey by this deed the equal one-half part of the usual royalty of one-eighth of all the petroleum or oil in and underlying the tract of land hereby conveyed,” which deed was recorded in the clerk’s office of the county court of Tyler County on the day of its date. On the 23rd day of January, 1897, Elizabeth J. Harris and her said husband by deed of lease of that day granted to James Lowry the exclusive right to operate and drill for petroleum and gas, to lay pipe lines, etc., on the said tract of land, for the period of five years from the date of the lease, and so long thereafter as oil or gas could be produced in paying quantities. “The party of the second part (James Lowry) his heirs or assigns, agrees to give the party
I think the decree of the circuit court is right, and it is affirmed.
Concurrence Opinion
(concurring):
The lease in this case from Mrs. Harris to James Lowry does not as in the ordinary oil and gas lease grant the oil, but only grants the privilege of searching for oil, and if it is found, the grantee agrees to give her “the one-eighth part of all the petroleum obtained from said premises as produced in the crude state.'” There is no provision made as to the other seven-eighths, except impliedly the lessee is to retrain it, and she releases any claim to it in accepting the one-eighth.
There is nothing said in the lease with regard to Mrs. Myers’ reservation, as it appears to be of a sixteenth royalty, rather the one-sixteenth of the oil in place. For if it was an exception of the oil in place she would have to pay one-sixteenth of the expense of producing it, which the reservation by use of the term royalty forbids. There being no grant of the oil, a warranty could not be implied and the lease cannot be construed to be anything else than the privilege of the retention of seven-eighths of the oil in so far as Mr. Harris is concerned. One-eighth she is to have. This she bargained for, and of this the law does not and the court ought not to deprive her by construing the contract contrary to its express terms. Three times during the present term this Court has held that parol evidence is inadmissible to vary, contradict or explain a written contract unambiguous on its face. Buena Vista Co. v. Billmyer, Knowlton v. Campbell, McCoy v. Camden, and now it is proposed by mere
Mrs. Harris through her attornies having waived the right to have the decree amended in her favor I concur in the affirmance of the decree as it was pronounced in the circuit court.
Affirmed.
(for reversing):
Mrs. Harris leased all the oil in the tract of land to Lowry. When she did so there was paramount title in Mrs. Myers to a sixteenth of the oil, and thus the implied warranty which exists in a lease for good title was that instant .broken, and Lowry or his assignees cannot be called upon to pay Mrs. Harris the full rent of one-eighth, and besides pay Mrs. Myers her sixteenth also, and thus make Lowry pay rent as if he got the whole of the oil, and yet lose a sixteenth by reason of failure of title in the lessor. Lowry only agreed to pay Mrs. Harris one-eighth of the oil in consideration of getting all the oil, and not getting it, he should not be compelled to pay the full rental to Mrs. Harris. She should discharge that incumbrance to Mrs. My.eri.' I hold that Mrs. Myers is entitled to one-sixteenth of the oil, Mrs. Harris to one-sixteenth, and Cobb, Glen and Mallory the balance. The case of Baker v. McDowell, 3 W. & S. 358, was a conveyance with special warranty, while here there is a general warranty.