88 W. Va. 102 | W. Va. | 1921
The defendant O. B. Morgan is the owner of a small tract of land situate in Reedy district in Roane county. The plaintiff conceived the idea of developing or testing the territory in that neighborhood for oil and gas. At. that time it was what is termed in the nomenclature of the oil and gas fraternity “wildcat” territory, that is, such territory as has not been reasonably demonstrated to be productive of these minerals. O. J. Brown and G. B. Davis, two "residents of that neighborhood who were interested in having the same tested, undertook to assist the plaintiff in procuring leases upon such of the territory as he might desire. The plaintiff advised them that if he could procure leases on several thousand acres of land in a solid block he would incur the expense of drilling a well to determine whether or not there was oil or gas underlying the lands. • Brown and Davis, together with one Byron L. Morford, plaintiff’s son-in-law and agent for the purpose of procuring the leases, went into the neighborhood and secured such leases from'a great number of the landowners. On the 17th of March, 1919, while Morford and Brown were engaged in this work they went to the residence of the defendant Morgan for the purpose of securing such a lease upon his
Morford turned this paper over to the plaintiff Heck with the advice that Morgan desired a copy. The plaintiff thereupon procured one C. S. McClung, a notary, to take all of the leases which he had secured and make copies of those of which the lessors desired to have copies, and then go to the residences of the various lessors and take their acknowledgments to the leases, at the time delivering the copies. McClung did make a copy of the Morgan lease among others, and did call upon the various lessors to take their acknowledgments. When he called at the Morgan residence for the purpose of taking the acknowledgment of Morgan and his wife he was advised that Morgan had gone to Gilmer county to work on a bridge, but was given his post office address. Mrs. Morgan acknowledged the lease at that time. McClung returned the lease, together with the copy of it, to the plaintiff with the advice that Morgan was not at home, and also furnished the plaintiff with Morgan’s post office address, in order that he might be communicated with. There was one other lease executed by a man by the name of Wade who was also absent, and who was at work at the same place with Morgan. Heck was in the neighborhood very shortly afterward and made further inquiries as to Morgan’s address, and receiving confirmation of the information given him by McClung he wrote a letter to Morgan enclosing the lease, together with the Wade lease, and asked him to acknowledge it and have Wade acknowledge his lease, and return the same to him, and in this letter enclosed a check for one dollar to pay the fees of the notary for taking the acknowledgment. He got no reply to this letter.
A short time thereafter he was informed that Morgan was at home, and with a view to getting the lease acknowledged he
Heck did immediately begin operations on an adjoining tract of land known as the Hess tract. Not receiving the lease from Morgan after waiting a considerable time, Heck wrote him a letter calling his attention to his promise to acknowledge it and return it, and advising him that he was relying upon that promise, and asking him to comply with it immediately, and also to return the Wade lease which he had theretofore sent him. To this letter Morgan mad'e an equivocal reply in which he returned the Wade lease,. but for the first time, according to Heck, raised some question about the payment of eighty-five cents not being legal, and about having a copy of the lease furnished to him which had not been furnished, and advised that they would let the matter rest until some future time. Upon receipt of this letter Heck immediately wrote him again enclosing him one dollar to take the place of the eighty-five cents which had been paid him, and advising him that as soon as he acknowledged the. lease and returned it he would be furnished a copy, and asked him to do so at once. To this letter Morgan replied returning the check and advised that he did not know where the lease was unless it had been returned to him with his former letter. This letter Was written about June 17, 1919.
It seems that no further communication was had with Morgan until sometime in the early part of September. Heck pursued his developments, and on the 11th of September his well on the Hess land came in a substantial producer. It seems about this 'time that he had another conference with Morgan, in which Morgan told him he did not know what he was going to do about his lease; that he wanted to do what was right, but he did not know what that was. It became apparent to Heck by this time that Morgan did not intend to acknowledge the lease and return it, but was endeavoring to escape the effect of it if he could do so.
In the meantime Heck had consulted counsel as to his rights upon the Morgan land, and was advised that the acknowledgment was not necessary in order to make the lease
He instructed his men to proceed to this Morgan land on the next morning and commence the building of a road from the highway to the point at which the well had been located, so that material could be moved upon the land preparatory to drilling a well, but on account of some happening at the Hess well the services of the men were required there, and they did not go upon the Morgan land for the purpose of commencing the work there until Monday morning, the 15th day of September. At that time a force of men did, go upon the Morgan land and begin the construction of a road leading from the highway to the point where the well had been located. Mrs. Morgan advised these men that they were trespassers upon the land and demanded that they cease their work. They disregarded her request and proceeded therewith.
On the next day Morgan and his wife went to the city of Parkersburg and there got in communication with the defendant R. E. Bills, as a result of which they executed to him a lease for oil and gas development upon this same, tract of land.
Likewise on the 24th of September Heck instituted this suit for the purpose of setting up the lease, which Morgan and his wife had executed, as a lost instrument, Morgan claiming that he had lost it or destroyed it, and for the purpose of cancelling the lease executed by Morgan to Bills as a cloud upon his right to develop the land for oil and gas. On the 23rd of September it appears that Bills had some negotiations with the defendant C. T. Smith which resulted in an assignment of this lease by Bills to Smith, Smith assuming all of Bills’ obligations to Morgan under the collateral contract above referred to. ' At the time the plaintiff brought this suit he was not advised of this assignment of Bills to Smith, and did not make Smith a party defendant. In fact, the assignment to Smith was not placed upon the record until some days after the suit was brought. While
It is insisted that the plaintiff is not entitled to the relief he asks for the reason that the paper executed by Morgan and delivered to Morford on the 17th day of March was not effective because the same had not been acknowledged; that it was delivered to Morford upon condition that it would take effect only in the event that a copy thereof was furnished to Morgan, and that this copy not having been furnished, there was never any delivery of the paper; that even though the paper executed by Morgan was valid as a lease between him and Heck, Bills as a bona fide purchaser without notice of Heck’s claim could not be affected thereby, inasmuch as the record did not disclose Heck’s interest, and that even though it should be held that Bills purchased
The circuit court entered a decree establishing the plaintiff’s lost lease as a valid and binding contract, and from a copy of it which was duly proven fixed the terms, and further cancelled the lease made by Morgan to Bills and the assignment by Bills to Smith as constituting clouds rrpon .the plaintiff’s rights, and enjoined the defendant Morgan from interfering with Heck in his operations upon the land.
Is there any merit in the contention of the defendant Morgan that the paper was not effective because he bad not acknowledged it? As between the parties, there is no necessity for the acknowledgment of a deed. If it is properly signed, .sealed and delivered, it is just as effective to convey the grantor’s title as though it had been acknowledged. The purpose of an acknowledgment is to supply the proof necessary to have it admitted to record, except in the case of a married woman, where by the language of the statute, an acknowledgment is necessary to the validity of the deed. State v. Proudfoot, 38 W. Va. 736-745; Washington County v. Dunn, 27 Gratt. 608; Webb v. Ritter, 60 W. Va. 193; 1 C. J. 750.
The principal contention of the defendant Morgan, however, is that this lease was delivered by him to Morford upon condition that it would be valid only if a copy were furnished him, and that inasmuch as this copy has never been furnished there was never any effective delivery, and when the lease came back into his hands he had a perfect right to destroy it. The evidence does not bear out his contention that this lease was delivered upon any such condition as he now sets up. Morford and Brown swear positively that there was no such condition attached to the delivery. Morford admits, as we have before stated, that he did agree to furnish Morgan a copy, and it is shown that a copy was made for that purpose, but that this was a condition to the validity of the instrument is denied emphatically by both Brown and Morford. Possession of an instrument of this character by the grantee is prima facie evidence that it was delivered to him with the intention that it should convey the grantor s
Nor is there anything in the contention of the defendant Morgan that when the lease executed by him came back into his possession for the purpose of having it acknowledged it deprived the plaintiff of any rights which he might otherwise have had thereunder. If this paper was effective to vest in the plaintiff any interest, he could only be divested
The defendant Bills, however, claims that he was a purchaser for value in good faith, and without notice of the plaintiff’s rights under the lease which had been theretofore executed to him by Morgan, and that therefore his rights under the lease executed to him by Morgan in September, 1919, are superior to the rights of the plaintiff, and this would be correct if the facts justified this conclusion, for under our recording statutes the plaintiff’s lease would be void as to a purchaser for value in good faith without notice. Is the defendant Bills such a purchaser? It is contended: first, that he had actual notice of the plaintiff’s rights, notwithstanding his denial, and that even if he did not have such actual notice Heck had such possession of the premises at the time of his purchase as to amount to notice; and second, that even though he had no notice whatever, still he was not a complete purchaser for the reason that he had not paid the consideration agreed upon between him and Morgan. Bills swears that at the time he took the lease from Morgan he did not know.of Heck’s claim, and had no information whatever in regard thereto, and Morgan swears that .he gave him no such information, but on the contrary had told him that there was no adverse claim of any kind to the land. It is significant, however, that on the very day. on which this lease was executed and delivered1 Bills prepared a notice to Heck advising him to cease trespassing upon the land, and further advising him that he had no right to operate the same for oil and gas. This notice clearly implies that the one who prepared it knew that Heck was making some claim of a right to conduct operations upon this land for oil and gas. But Bills says that while this notice was prepared by him on the 17th it was after the delivery of the lease to him, and after that transaction was closed. This may be true, but it is hardly credible.' Morgan puts
However, it is unnecessary to determine whether Bills had actual notice of Heck’s claim or not. The evidence shows that Heck had taken possession of this land prior to the execution of this lease to Bills; that he was then at work upon it with a force of men building a road leading to the location he had established for an oil well. The surface of the land is a part of the record of which a purchaser must take notice, and it is clear from the evidence that had Bills looked at this land at the time he took his lease he could have come to no other conclusion but that someone was preparing to conduct operations thereon for oil and gas, and it would then have been his duty to make inquiry as to the rights claimed by such party. In Pocahontas Tanning Co. v. St. Lawrence Boom & Mfg. Co., 63 W. Va. 685, it was held that one who has knowledge or information of facts sufficient to put a prudent man on inquiry as to the existence of some right or title in conflict with that which he is about to purchase is bound to pursue the same, and to ascertain the extent of such prior right. There can be no doubt that the conduct of Heck upon this tract of land was sufficient to put anyone upon notice that oil operations were about to be carried on upon it. The road which was under construction at the very time of the making of the lease to bills was consistent only with that purpose. It appears that the tract of land had not been farmed for sometime; that it had grown up in sprouts and brush, and that it had a small orchard upon it; that a wagon road over which heavy hauling could be done, such as was being constructed by Heck, was entirely useless for any purpose to which the farm was be
' There is another reason why Bills is not such a purchaser as is protected, and that is that he had not paid the consideration at the time he admittedly was fully informed of the situation. The real consideration which Bills was to pay for
For either of the foregoing reasons Bills is deprived of the defense of innocent purchaser for value without notice. What we have said as to the duty of Bills to ascertain what was being done upon the land, and its effect to deprive him of the defense of innocent purchaser, applies with even greater force to the defendant Smith. At the time Smith toot the assignment from Bills, the road was completed and indicated unmistakably its purpose.
The appellees contend that the plaintiff’s bill should be dismissed for the reason that he attempted to practice a fraud upon the defendant Morgan subsequent to the bringing of this suit. There is evidence that after this suit was brought the plaintiff discovered what he conceived to be a defect in the title of Morgan to the land in controversy, and went to Morgan’s vendor, and procured from him upon what are termed fraudulent representations a quit-claim deed for the land, because of which conduct the appellee Morgan now insists the plaintiff should be denied relief. It is quite true that equity will not lend its aid to enforce an unconscionable contract or one procured by fraudulent means. Ordinarily one who comes into equity must come with clean hands,
Our conclusion is to affirm the decree complained of, and it is so ordered.
Affirmed.