84 Va. 706 | Va. | 1888
delivered the opinion of the court.
The facts material to he stated appear from a transcript of so much of the record in said suit as is necessary to a determination of the matters of error assigned in the petition for this appeal.
D. W. K. Bowles, [Seal.] Geo. Fisher, Sr., [Seal.] Dunlop Fisher, [Seal.] Bueord Kirtley, [Seal.] George Fisher, Jr., [Seal.] James Fisher, [Seal.]
On the 7th day of March, 1836, Buford Kirtley, one of the grantees in the deed from said Bowles, conveyed his interest, rights, and title, in and to “a certain lease made and entered into 7th day of August, 1834, between D. W. K. Bowles, George Fisher, Sr., George Fisher, Jr., James Fisher, Dunlap Fisher, and Buford Kirtley, * * * for the purpose of searching and working for gold and other metals,” &c., &c., to J oseph Hodgson.
Shortly after the making of the lease on the 7th of August, 1834, between D. W. K. Bowles and the Fishers and Kirtley, they commenced exploring and operating upon the land of Bowles, (he being one of the company or partnership,) which they continued for some time, and then they quit their work and searching upon'the place wholly and finally; when Bowles,
But in all this forty years and more, during which Bowles was devoting most of his time and means—even his salary as county judge—to making these explorations and developments upon his land for gold and other minerals supposed to be there, singly and alone, Hodgson, from the day of the assignment made by Kirtley to him, March the 7th, 1836, down to the filing of the petition in 1885, never did any work, or made any searching and digging on the land, or took any part, or even possession, for any purpose, or ever contributed a cent, or took any notice or gave any attention to his asserted interest acquired nearly fifty years before, until the land is sold under the decree of the circuit court of Fluvanna in this creditors’ suit in which the appellant filed his petition. Indeed, so completely had the whole thing been abandoned, that the said deed of assignment from Kirtley to Hodgson of March 7th, 1836, was never even put to record until May 22d, 1880; after which the appellant filed his petition setting up his claim to a participation in the proceeds of the sale of Bowles’ land at the suit of his creditors. Upon the hearing of the cause, at the April term, 1887, the circuit court dismissed appellant’s said petition; from which action of the court this appeal is taken.
The determination of this case, in this court, is ruled by
The deed of August 7th, 1834, between Bowles of the one part, and the Pishers & Kirtley of the other part, was simply a lease to the said Pishers & Kirtley of the privilege of searching and digging and working for gold, or other minerals, upon Bowles’ land, which was to continue “as long as they may deem it worthy of searching and working for gold and other metals; ” and they had no power conferred to sell or to assign their contract, either as to their “privilege ” or as to their covenant obligations, for the faithful performance of which, on their part, they expressly covenanted in a penalty of five thousand dollars. They were skilled and experienced miners, and their personal skill was contracted for. They were only required to continue their operations, under the lease, so long
Even on the contention of the appellant that the assignment of Kirtley March 7th, 1836, to Joseph Hodgson was valid and operated to vest an interest in said Hodgson in the “privilege,” Hodgson could only claim the settlement of an account between him and Bowles in which he would have to he charged with the performance of his assignor’s covenant contract, and with a contributive share in the expenses and outlay of Bowles for over forty years, which would bring Hodgson largely in debt to Bowles; but the transactions to be inquired of, in any such attempted ascertainment, cover a period of over fifty-three years; and the parties concerned in them are all dead, except
. Decree aeeirmed.