249 F. 840 | 6th Cir. | 1918
Appellees, hereinafter called plaintiffs, filed bill in equity to quiet their alleged title to the minerals (coal, oil, and gas) in a tract of land in Morgan county, Ky., lying on both sides of the Stone Coal or Prater fork of Caney creek. They base their claim of title upon a formal conveyance of such mineral rights, made in 1865 by John Sebastian to J. W. Sewell & Co., which was a partnership composed oí John W. Sewell and Harriet Sewell — father and mother, respectively, of plaintiffs, whose rights descended in equal shares to plaintiffs, their children and heirs at law. Defendants claim the property in separate parcels, tracing their alleged title to a devise by Sebastian, subsequent to his conveyance to Sewell & Co., of the fee simple iu the lands to his two sons, subject only to the widow’s life estate. They make defenses (1) that the alleged conveyance of the mineral rights by Sebastian to Sewell & Co. was intended to. be, and was in legal effect, merely a mining lease upon future payment of royalties; (2) that the conveyance, if effective as such, passed the legal title to John W. Sewell only; (3) that the latter sold and conveyed the mineral rights in question to Mary F. Gregory, whose claimed
At the time of the hearing Sewell, Amyx and the deputy clerk were all dead, as were also Sebastian and his wife.' While there was testimony that the instrument was spoken of as a lease, and testimony tending to show that it was intended only as such, there was substantial testimony tending to the contrary conclusion, including the facts, as testified to, that Sewell then and there paid to Sebastian $25 in money, which cannot be said to have been regarded as wholly disproportionate to the then value of the minerals, having in mind their remoteness from transportation lines and the price recently paid by Sebastian for the fee simple of a portion of the land — together with other pertinent considerations, including the fact that the Sewells, one or,both, during the five months period including the date of the deed in question, had táken in that district not only several deeds of lands in fee and several mining leases, but also 14 deeds outright of mineral interests. Sebastian’s subsequent devise of the fee simple of the lands is not highly significant, especially as he still held the surface rights, and not improbably the mineral rights were regarded by
“The principle is universally recognized that a.t law real estate owned by a. partnership, even if purchased in the name of the partnership, and with partnership funds, is held by the members of the firm as tenants in common.”
And in Carter v. Flexner, 92 Ky. 400, 405, 17 S. W. 851, 853, the court said:
"The true rule, and the only one, that reconciles the conflicting views on this question, is that, where partners own real estate as such, it cannot be treated or considered as personalty, except for the purposes of the partnership, and then as assets for the payment of firm debts, It cannot be sold by one member of the Arm in the linn name, but all the partners must unite in the conveyance.”
Had the conveyance been to Sewell & Sewell, each would have taken legal title to one-lialf the property. Menage v. Burke, 43 Minn. 211, 45 N. W. 155, 19 Am. St. Rep. 235; Dwyer Co. v. Whiteman, 92
Defendants contend, however, that where the firm name contains the surname of one or more, but not of all, the partners, followed by the words “and Company,” a conveyance of real estate to the partnership in such firm name vests the legal title in the partner or partners whose surnames so appear, in trust for the firm. Several cases declare this distinction. Among them are Percifull v. Platt, 36 Ark. 456, 464; Winter v. Stock, 29 Cal. 407, 89 Am. Dec. 57; Arthur v. Weston, 22 Mo. 378; Holmes v. Jarrett, 7 Heisk. (54 Tenn.) 506. The basis on -which decisions of this nature rest seems to be that the word “Company” contains no certain designation of any other person than the one whose surname is given. We are unable, however, to see any logical distinction between the case where the surnames only aré given, or where one surname is followed by the words “and Son” or “and Brother,” and a firm name consisting of one surname, followed by the words “and Company.” In neither case is there a certain designation of all the members. In either of the first-mentioned cases there is an ambiguity to be solved by parol testimony, not only as to the full name of the partner whose surname alone appears, but also as to the identity of the specific “Brother” or “Son”; and the difference between supplying by parol the-partners’ names in those cases and in that where it is represented by the words “and Company” is wholly unsubstantial. The language of Morse v. Carpenter, supra, in holding valid, in a suit in ejectment, á deed to a partnership, whose firm name consisted only of the surnames of the plaintiff members, is equally pertinent here:
“There is, however, an Important difference between a description which is inherently uncertain and indeterminate, and one which is merely imperfect, and capable, on that account, of different'applications. To correct the one is, in effect, to add new terms to the instrument; while to complete the other is' only to ascertain and fix the application of terms already contained in it.”
The authorities do not uniformly observe the distinction urged. In Seymour v. Western R. R. Co., 106 U. S. 320, 1 Sup. Ct. 123, 27
"The deed to Stoudenmeier & Co. vested the legal title in the several members of the firm as tenants in common, and not, in the name of the partnership as such. Its legal effect was the same as if the deed had been made to the throe partners in their individual names.”
We think this the logical view. It is clear, to our minds, that the Supreme Court, by its treatment in Riddle v. Whitehill, supra, of the Arkansas decision in Percifull v. Platt, did not intend to commit itself to the doctrine of that case, unless to the extent that the decision of the Arkansas courts as to the title to lands in that state was binding on the federal courts. Stearns Co. v. Van Winkle (C. C. A. 6) 221 Fed. 590, 593, 137 C. C. A. 314; Ingersoll v. Crocker (C. C. A. 6) 228 Fed. 844, 847, 143 C. C. A. 242. Indeed, the question where the legal title rested was not necessarily involved in the decision in Riddle v. Whitehill. It may be that the Kentucky Court of Appeals, by the decisions already referred lo (and by those cited in the margin
3. December 25, 1871, John W. Sewell conveyed to Mary F. Gregory all his right, title, and interest “in any lands, oil, or mineral rights” in certain enumerated counties in Kentucky, including Morgan. Plaintiffs contend that this deed, considering all its various provisions, was not intended to convey the interests in question. We agree, however, with the District Judge, that it was so intended. This intention is to our minds made especially clear' — first, by the fact that, although by an earlier clause of the deed Sewell is made to convey lands for the most part, at least, belonging to others, under powers of attorney, therefor, yet, following the attestation clause, Sewell and his wife (she did not sign) in terms “quitclaim to the party of the second part all land, mineral, or oil privileges that they may own or possess in the several counties above named”; and, second, by the deed from Mary F. Gregory to Hughs, hereinafter mentioned.
Unless, then, these interests were reconveyed by Mary F. Gregory to Sewell, his one-half interest therein was lost to plaintiffs. On February 15, 1872, and less than two months after the conveyance to Mrs. Gregory, the latter made a conveyance to Sewell reciting his previous conveyance to her. The question is whether this latter instrument
Upon a careful consideration of the record, we are unable to agree with this ultimate conclusion. The District Judge rested his conclusion of an intent to reconvey to Sewell the mineral rights in question upon a declaration in the deed last referred to that the party of the first part does “grant and convey to the said party of the second part, his heirs and assigns, such lands, hereditaments or possessions in her vested situated in the county of Morgan and state of Kentucky.” This statement, however, is immediately followed by a recital of the conveyance by Sewell to Gregory on December 25, 1871, of a large quantity of lands in Morgan and several other counties, the recital of the possible arising of a question as to the intent of Sewell in making that conveyance, and a declaration that the deed was intended to quitclaim to Sewell the title to all lands patented or granted by the commonwealth of Kentucky to either of the Sewells, and conveyed by them to Mrs. Gregory by the deed mentioned. The deed also contained a release of several tracts by numbers, as well as several other tracts by name. The lands in question are not included in the deed, unless in the general clause first quoted.
While this deed, standing alone, would perhaps make it more probable than otherwise that Mrs. Gregory intended by it to convey to Sewell the minerals dn question, there is one consideration (not referred to in the opinions of the District Judge) which to our minds makes it highly improbable that either Mrs. Gregory or Sewell understood the deed to have such effect: On the 9th day of March, 1872, Mrs. Gregory conveyed to John Hughs, for a stated consideration of $480, the specific lands in question (and such lands only), not only by courses, metes, and bounds, but expressly identified as being the lands conveyed by Sebastian and wife to Sewell January 23, 1865, with reference to the place of record, “and the same as conveyed by J. "W. Sewell et ux. to M. P. Gregory, deed dated 25th of December, 1871, and recorded” as specified. It seems to us incomprehensible that Mrs. Gregory, who was a member of the Sewell family, should have made this conveyance to Hughs less than a month after her conveyance to Sewell, if the conveyance to Sewell was intended to re-convey, or to continue to stand as a reconveyance of, the interests in question to him. It is, to say the least, highly probable that the conveyance to Hughs would not have been made without Sewell’s knowledge and approval. Mrs. Gregory’s explanation is that she has no recollection of ever making any deed to Hughs, and that the reason for her reconveyance to Sewell was that the deed was given to her as security for a loan of a few hundred dollars, which was repaid. But this explanation, given by deposition out of court more than 40 years
We agree with the conclusion of the District Judge that the defense of laches has not been established. The delay has been great, but in view of the well-known fact that there was until within comparatively few years no general or substantial development of mineral lands situated as were these in question, that commercial mining of coal was not begun there before 1901, nor boring for oil and gas before 1912, that plaintiffs did not live in the neighborhood, and that their testimony (presumably believed by the District Judge, who heard it) was that they had no knowledge of such development until about a year before this suit was begun, we cannot say that they are chargeable with such want of diligence in failing to earlier institute proceedings as to equitably deprive them of relief. The fact that they paid no taxes on'Their mineral rights, in the absence of a policy of separate assessment and taxation, is not alone enough to bar them.
5. The assignment addressed to the holding that the alleged ad
It results from these views that the decree of the District Court was right, and should be affirmed so far as it adjudged appellants A. W. Sewell and Hattie H. Sewell to be the owners of two-thirds of the one-half interest held by Harriet Sewell in the minerals which are the subject of this appeal, but that the decree is erroneous, and should be reversed, so far as it extended such adjudication of ownership to the one-half interest originally held by John W. Sewell.
The record is accordingly remanded to the District Court, with directions to enter a decree as modified by this opinion. The costs of this court will be divided.
Lowe v. Lowe, 13 Bush (Ky.) 688; Flanagan v. Shuck, 82 Ky. 617.