47 W. Va. 566 | W. Va. | 1900
A. "W. Knotts and J. Garber brought an action of covenant against Matilda McGregor, executrix of the will of David McGregor, deceased, in the circuit court of Ritchie Count}', which action was dismissed upon a demurrer to the declaration, and the plaintiffs have brought the case to this Court. The declaration avers: That David Mc-Gregor made a lease, August 30,1889, to Knotts & Garber, of certain land, for the purpose and with the exclusive right of operating for the development of petroleum oil and gas for the term of five years; said lessees covenanting to pay McGregor an eighth of the oil produced, and two hundred dollars per annum, for each productive gas well, and that.said lessees should complete a well within one year from the date of the lease, and a failure to do so should render the lease null and void. But it was further covenanted that, if the lessees should pay McGregor a rental of twenty-five cents per acre from the time specified for the completion of the well, such payment should .operate to extend the time for five years, and that said rental should be deposited to McGregor’s credit in the Second National Bank of Parkersburg. That said lease provided that all the conditions thereof should extend to the heirs, executors, and administrators of the parties. The declaration further avers that the plaintiffs had well and. truly kept and performed their part of the said lease; that on Aug-ust 30. 1890, they tendered McGregor one hundred and twenty-five dollars for the rental provided in said lease, but he refused to accept the same, and that on August 29, 1891, the plaintiffs deposited the same to McGregor’s credit in said bank, and that McGregor had accepted such deposit and used part of it in his lifetime, and his executrix had accepted and used the residue thereof; that, the plaintiffs having- kept their covenants, the said McGregor did not in his lifetime keep his, and the plaintiffs did not during the term of said lease have and enjoy the exclusive right to drill and operate for oil and gas on the premises demised; that after the making of said lease, and during the term therein
It is contended that no action at law lies for a breach of the covenant of the plaintiffs’ lease by David Mc,Greg-or, in his lifetime, against his personal representative. For this position we are referred to Code chapter 86, section 6, providing that an heir or devisee may be sued in equity by any creditor to whom, a debt is due, for-which the estate descended or devised is liable, or for which the heir or de-visee is liable in respect to such estate, and he shall not be liable to an action at law therefor. We are also cited for the proposition to Rex v. Creel, 22 W. Va. 373. That statute has no bearing on this case. It does not bear on the liability of the personal estate. Formerly the land of a decedent, in the hands of his heirs, was liable only for debts of record, and bonds or other instruments under seal, expressly binding the heirs. For such debts the heir could be sued at law, and the debt levied out of land descended to him. Such a debt bound the land, but the land was not bound for any other debts at law-, though it was in equity. The specialty creditor getting a judgment against the heir had preference over other creditors. The legislature thought it unjust that a dead man’s land should be liable only for part of his debts, and concluded to make it liable for all his debts, whether by bond or otherwise. This statute is found in Code, chapter 86, section 3. Having thus made the decedent’s real estate liable for all his debts and demands, it was thought best to prohibit different and multitudinous suits at law against the different heirs, entailing large costs, and tu compel the creditors to resort only to equity, where the land assets could be adminis-
Does the plaintiffs’ declaration show a cause of action to charge the estate of David McGregor with damages as for the breach of the covenant contained in the deed of lease? Every lease for years, though it does not expressly ■covenant for quiet enjoyment of the premises bv the lessee, implies and imports such covenant; that is, that he shall enter and enjoy the premises for the term without the permission of any one. Wood, Landl. & Ten. .562; Tayl. Landl. & Ten. § 304. Does the declaration show a breach of such covenant?
First, does the first assignment of breach in count one, namely, the execution by McGregor of the second lease to Gracey, fer se and alone, operate as a breach of the covenant? Counsel for the plaintiffs cite 11 Am. & Eng. Enc. Law' (2d Ed.) p. 469, reading: “A tenant is evicted where, before the expiration of his lease, tne landlord rents the ■demised premises to another person, who takes possession of them without the tenant’s consent.”- That is sound law, as the law found in that great work almost invariably is; but note that it does not assert the proposition asserted in the declaration (that is, that the mere execution of a second lease alone is eviction), but it requires, in addition, the taking of possession of the premises by the second lessee, which is necessarily an exclusion of the first lessee. In order to constitute a breach of warranty in the case of landlord and tenant, there must be an actual eviction from the premises. 1 Tayl. Landl. & Ten. §§ 377, 378, 381. . “An actual eviction is an actual expulsion of the' tenant out of all or some part of the demised premises, — a physical ouster or dispossession from the very thing granted, or some substantial part thereof.” 11 Am. & Eng. Enc. -Law (2d Ed.)p. 459; 2 Minor, Inst. 757; Briggs v. Hall, 4 Leign 484. In this case the declaration does not predicate the cause of action upon the theory that the plaintiffs were once m possession, and were expelled by McGregor or by Gracey; but I give the authorities just quoted to show what must be the character of act constituting eviction, to reflect light by assimilation on this case.Further, that second lease, so far as the declaration
Next, as to the other breach assigned in count No. 1. That is that David McGregor denied the plaintiffs tne right to enter upon the premises to operate for oil, and did exclude, them from so doing. When one makes a lease to another, he impliedly covenants that the lessee shall enter into the possession, and quietly enjoy that possession. It implies that the demised premises shall be open to entry bv the lessee at the- time fixed for taking possession. King v. Reynolds, 42 Am. Rep. 107. Reason and justice say that, if the lessor refuse to admit the lessee into possession, — -if h¿ withhold possession from him, — he violates his covenant. Authority sustains this position. 11 Am. & Eng. Enc. Law (2d Ed.) 467; 1 Tayl. Landl. & Ten. § 306; Hubble v. Cole, (Va.) (13 S. E. 441), 13 L.R. A. 311. Now, the only question perplexing me in this particular case is whether the declaration is too general in its charge of' the exclusion of the plaintiffs by McGregor from the premises. It does not say how or by what means he excluded them. It does not say that they requested
But there is another grave objection to the declaration, for which we must sustain the decision of the circuit court. In the same action the plaintiffs join two separate causes of action, — one against the executrix for breach of covenant by the testator in his lifetime, and the other for a breach by the executrix after his death. Of course, Mc-Gregor’s estate cannot be liable for the act of the executrix in making the lease to Gartland, for three reasons; (1) Because, as shown above as to the Gracey lease, a mere second lease would not be a breach of the covenant; (2) because that lease was made after McGregor’s death’; (3) Because it is to be presumed that the laird descended to the heirs, and that the executrix had nothing to do with it under the will, it not being so averred. And, as to the averment that the executrix excluded the plaintiffs from the enjoyment of the lease to them, the estate is not liable, for two reasons: (1) Because it is hot shown that she had any lawful authority over the land; (2) because, if she did-wrong in refusing the plaintiffs possession under the lease made bv her testator, it wruld be her own wrong, for which she would be personally liable. “In causes of action wholly accruing after the decedent’s death, the personal 'representative is, in genera], liable individually.” Schoul■er, Ex’rs. § 397; Lomax, Ex’rs. 262, §§ 14, 283. In this action there is a misjoiner of causes of action. For the cause of action originating from David McGregor’s act in his lifetime, his estate would be liable. For those of Matilda McGregor, she would be individually liable. The ■one recovery would be payable out of assets; the other, out of her own individual property. “Claims as executor
The point is made that Trees v. Oil Co. (W. Va.; decided November 28, 1899) 34 S. E. 983, holds that an .executory oil lease is terminated by the death of the lessor. Surely this Court did not mean to hold, and did not hold, that broad proposition. Under the peculiar feature of the lease-in that case, as put in'the first point of the syllabus, — not •binding the lessee to carry out its covenants, but giving him right to defeat the same at any time without payment of anything, — that lease was held to be a lease, or option for a lease, at will, determinable by either party any time, as it created no vested estate.. The lessee did nothing, and paid nothing. But in this case the lease does not contain that express clause of complete exemption from liability; and, moreover, under its terms the lessee tendered the rental within time, and on refusal paid it into bank to Mc-Gregor’s credit, and he accepted it, as the declaration alleges. This is a different case from that. Therefore we affirm the judgment, without prejudice to any other proceeding in law or equity.
Affirmed.