78 Ill. App. 437 | Ill. App. Ct. | 1898
delivered the opinion of the court.
The demurrer in this case is to the merits, and in bar of the relief sought, and proceeds on the ground that, admitting the facts stated in the bill to be true, the complainant is not entitled to the relief he seeks. A demurrer in chancery is always founded on some strong point of law, going to the absolute denial of the relief sought. Defects in substance are not supplied or aided by it, nor defective statements of title or claims to relief cured by it. The demurrer only admits that which is well stated or pleaded. It does not admit any matters of law which may be suggested in the bill or inferred from the facts stated in it. The pleading demurred to is to be taken most strongly against the one pleading. His conclusions from the facts are not admitted. Stow v. Russell, 36 Ill. 18; Harris et al. v. Cornell et al., 80 Ill. 54; Johnson, Collector, v. Roberts, 102 Ill. 655; Wilkinson v. Gage, 40 Ill. App. 603; American Trust Co. v. M. & N. W. R. R. Co., 157 Ill. 641; Sterling Gas Co. v. Higby, 134 Ill. 557.
At the time James H. Henderson, now deceased, and father of appellant, on the 25th day of November, 1869, made the lease to the Yirden Coal Mining Company for the premises in controversy in this suit, for the term of nine hundred and ninety-nine years, he granted to the lessee the right to mine and remove the coal and other mineral deposit underlying such premises. That portion of the premises above the coal and other mineral deposit remained' in him and his devisees after the date of the lease, and this is not inconsistent with the grant. The two separate estates may exist in the same realty at the same time.
It is averred in the bill that appellant devised title to these premises as devisee and trustee by virtue of the will of James H. Henderson, who died in August, 1883. His interest and rights are none other than his father was seized of, at the time of his death.
It appears from the averments in the bill that James H. Henderson entered into a lease with others on the 25th of November, 1869, with the Yirden Coal Mining Company, by which he granted and leased to it the right to enter upon, mine and remove the coal and other mineral deposit underlying the same, for the term of nine hundred and ninety-nine years; that such lease was prepared by one Cheney, at the request of John H. Henderson and others joining with him as lessors. After he prepared it they signed the same and delivered it to him to have it signed by the Yirden Coal Mining Company; that Cheney delivered it without having it signed. It appears it was accepted by the company and, under the provisions and covenants of the lease, the Yirden Coal Mining Company sank a shaft on its premises, adjacent to the premises in controversy, which shaft was completed August 1, 1870, within the time specified in the lease. We think, by accepting the lease and thus acting upon it, it became valid and binding, and the lessor and lessee were bound by its covenants, although it was not signed by the lessee.
It is averred in the bill, the consideration is not sufficient to support the grant. It appears from the allegations in the bill that the consideration was the anticipated benefit to an increase in value of the lands of lessors near Yirden, by reason of the opening of coal mines by lessee on its own lands. This, it is set up in the bill, the Yirden Coal Company did. As it is not averred that it did not benefit and increase the value of lessor’s lands, as anticipated, and as a pleading is to be construed most strongly against the pleader, the presumption obtains, the anticipated benefits and increased value of lessor’s lands were realized.
It is claimed by appellant in his bill that the Yirden Coal Mining Company was limited by its charter in the purchase and ownership at any one time, of real estate to a value not exceeding twenty-five per cent of its capital stock, and that the capital stock of such corporation was $20,000. He also charges in his bill that the Yirden Coal Mining Company acquired, and claim to hold, more than $5,000 worth of real estate at one time, and thereby had violated their charter. The Yirden Coal Mining Company being authorized to purchase and hold lands, and James H. Henderson at the time of the making of the lease having sufficient capacity to convey, the title was obviously vested in the Yirden Coal Mining Company by the delivery of the lease, and the question whether it has, by the purchase and use of lands, exceeded the powers conferred by its charter, is one between the State and it, with which James II. Henderson, the grantor, or his devisees, have no concern. Hough v. Cook County Land Co., 73 Ill. 23; Alexander v. Tolleston Club, 110 Ill. 65; Barnes v. Suddard, 117 Ill. 237.
The only charge of fraud in the bill is that it was concealed from the lessors that the Yirden Coal Mining Company was-limited by its charter in the purchase and ownership, at any one time, of real estate to a value not exceeding twenty-five per cent of its capital stock, and that its capital stock was $20,000, and it had purchased and at that time owned land in Macoupin county of the value of $15,000. It does not appear from any averment in the bill that the lessee, the Yirden Coal Mining Company, or any of its officers or agents, were in any way participating in this concealment, nor does it appear what was said or done to conceal these facts from lessors. But as we have above shown it does not concern the lessors whether the lessee violated the provisions of its charter or not; that is a matter between it and the State; and the fact that it did not disclose the provisions of its charter to the lessors would not be a fraud.
It is asserted by appellant’s solicitor that, the lease involved in this controversy is void because against public policy. A contract, to be void for this reason, the consideration must not only not be valuable, but it must be an unlawful consideration and repugnant to law, or sound policy or good morals. Ex turpi contractu, actio non oretu. 4 Kent’s Com. 466. The consideration for the lease in this case was valuable and lawful, and not repugnant to the law, sound policy or good morals.
It is contended by appellant that the lease made by James H. Henderson to the Yirden Coal Mining Company is void because it tends to create a perpetuity. A perpetuity is defined to be a limitation, taking the subject thereof out of commerce for a longer period of time than a life or lives in being and twenty-one years beyond; and in case of a posthumous child, a few months more, allowing for time of gestation. Waldo et al. v. Cummings Estate, 45 Ill. 421; Schaefer et al. v. Schaefer, 141 Ill. 337; Hart et al. v. Seymour et al., 147 Ill. 598; Bigelow v. Cady, 171 Ill. 229. From this definition it is clear there was nothing in the provisions of the lease that tended to create a perpetuity. There was no provision in the lease suspending the power of alienation. There was no limitation taking the premises leased out of commerce. The Yirden Coal Mining Company could have sold them the next day after the delivery of the lease. It did4n fact sell and convey them, as it appears from the bill, to John W. Utt, on February 21, 1877. And on the 9th day of September, 1890, after the death of John W. Utt, his executors sold and conveyed the same premises so leased to the Yirden Coal Company, appellee herein, and such deeds of conveyance and assignment were duly recorded.
The appellant invokes the statute of limitations, Sec. 6, Chap. 66, Rev. Stat. of 1845, which is as follows: “ Ho person who now hath or hereafter may have any right of entry into any lands, tenements or hereditaments, shall make any entry therein but within twenty years next after such right shall have accrued, and such person shall be barred from any entry afterward.”
He asserts in his bill that no right of entry accrued to the lessee until August 1,1870, the time the lessee completed the coal shaft on its oWn lands adjacent to those leased of the lessor, James H. Henderson, and twenty years having intervened between that time and the commencement of this suit, the lessee and its assigns and grantees, not having entered, are now barred from entering by virtue of this statute. The statute now in force is substantially the same as that of 1815, except the provisions are made more clear and explained. The spirit and intent of the statutes are the same. itev. Stat. 1897, Chap. 83, Secs. 1, 2 and 3. Both statutes refer to cases where a person has been disseized or where one is asserting an adverse claim to and inconsistent with the right of entry. The claim must be hostile. The appellee is only claiming the right to mine and remove the coal and other underlying mineral deposits through a shaft sunk upon their own adjacent property. They are not asserting any right to enter upon the surface. The lessor, James H. Henderson, in his lifetime did not claim any right inconsistent with or adverse to the rights claimed by the lessee or its assigns or grantees; neither did appellant, prior to exhibiting the bill in this case in court. If James H. Henderson had, during his lifetime and after the execution and delivery of the lease, mined and removed any of the coal from the premises, this would have been a disseizure, and a right of entry would have accrued to the lessee of the premises leased, or as to his assigns or grantees, and from this time the statute would begin to run.
Neither the lessor nor lessee, or those claiming under them or either of them, entered upon the leased premises and mined or removed any coal.
The legal possession of the premises leased, upon the making and delivery of the lease, if there was no one in possession holding adversely to the lessor, passed to the lessee.
There are no allegations in the bill to show that James H. Henderson in his lifetime, or any one claiming under him, repudiated the lease or claimed any rights in the coal and other mineral deposits mentioned and described in the lease adverse to the lessee prior to the filing of the bill in this case. If the contention of the appellant is upheld, it amounts to this: if a person owning vacant and unoccupied land sells and conveys land to another, and the vendee does not enter upon and take possession of it, the same remaining vacant and unoccupied for twenty years, the premises reverts to vendor. We do not think appellant’s contention is well grounded, nor do we think he can invoke the statute of limitations asa bar in this case. We hold there was no error in the court sustaining the demurrer and dismissing the bill.
The decree of the court below is affirmed.
