24 W. Va. 741 | W. Va. | 1884
By deed, dated October -3,-1868, Stephen Arnold conveyed to his daughter, Mary Jane, the wife of Byron Love, a tract of two hundred acres of land in Barbour county, “subject to this condition, that the deed shall not operate as a conveyance of the legal title to said land or the right to possession thereof until after the death of the said Stephen Arnold.”
On June 8, 1871, after the aforesaid deed had been recorded, the said Byron Love and wife, by deed duly acknowledged and recorded, demised, granted -and leased the said land to W. B. Teter, W. C. Okey, D. D. T. Farnesworth, G. A. Newlon, John S. Fisher and others, for the uses and purposes therein stated. The said lease, which is in fact simply a contract, after setting forth the consideration therefor as one dollar in hand paid and the promise and covenant of the parties of the second part to pay to 'the parties of the first part one quarter of one cent per bushel for all coal of every kind that may be found upon, or mined from beneath, the surface of said land, an account of which is to be kept and rendered to the parties of the first part and payments therefor to be made monthly, proceeds as follows: “The said parties of the second part take only the exclusive privileges of the coal aforesaid upon the said lands or under the surface of the ground thereof. The said parties of the first part aré to have the entire control of the surface of the said lands, together with all rights and privileges of cultivating and improving the same so as not to interfere with the full enjoyment of the rights of the said parties of the second part, their heirs and assigns, in working and operating upon said lands for the purpose of taking out coals. It is agreed that the said parties of the first part have the privilege of taking all the coal that they may desire previous to the time that the said parties of the second part, their heirs and assigns, commence work taking out coal from said lands, and after work has been commenced by the said parties of the second part, their hei rs and assigns, the said parties are prohibited from taking any coal except sufficient'for' family use for themselves and their heirs, and from any point they may desire. The said parties of the second part, their heirs, and assign by the tenor of this contract are to have the exclusive right
On February 8, 1879, the said Byron Love and wife exhibited their bill in the circuit court of Barbour county against Stephen Arnold, their grantor, aud the said "W. B.. Teter and the other grantees in said contract of lease for. the purpose of cancelling and setting aside said contract. The bill was demurred to and all the defendants answered, depositions were taken and, on October 26, 1881, the court overruled the demurrer and entered a decree cancelling and setting aside said' contract of lease. From this decree the defendants, John S. Fisher and A. M. Poundstone have appealed.
The substantial averments of the bill for setting aside said contract are, in effect, that two of the defendants, Farns-worth and Fisher, came to the residence of the plaintiffs “ and represented to them that there was a company of capitalists, either then, or about to be organized, in which the defendants, Latham, Newlon, Poundstone and themselves were either members or component parts, or were about to become such, if they could lease permanently a certain quantity of lands in that vicinity for the purpose, in order to commence extensive operations in the excavation, manufacture and marketing of mineral coal, coal-oil, &c., ad libitum” and that if they could lease a sufficient quantity of land in that vicinity for their purposes they would oom.inen.cq opera
It seems to me that these averments are plainly insufficient to warrant any relief, and that the circuit court should have sustained the demurrer and dismissed the bill. The title upon which the lease or contract is founded and which is exhibited with the bill, shows that the plaintiffs bad no control of the land nor right to the possession either at the time of making the contract or when they instituted this suit.
The bill show's that the plaintiffs have no present right to the possession of the land, that they had none when they made the contract of lease and of course could, and did, not confer any such right upon their lessees. The latter could^ not enter upon the land during the life of the life-tenant and this fact is a sufficient answer to any averment or suggestion of the bill that there was any fraud or failure of consideration on the ground that the lessees have not entered upon the land and commenced operations. The existence of this life estate might, perhaps, be ground of complaint on the part of the lessees, but surely' the plaintiffs cannot be heard to complain of it. They must have known the extent of their title and the rights which they could confer. They' conferred no right to take coal during the life tenancy and cannot, therefore, complain that the lessees have failed to do that w'hich they have no legal right to do.
But even, if we should assume contrary to the facts, that the lessees had the right to enter immediately upon the land and commence operating, the averments of the bill are not of a character to warrant a court of equity in affording relief to the plaintiffs for their failure to do so. All the representations alleged to have been made by the lessees relate to intentions and acts to be performed in the future and not to existing facts. This applies even to the statement regarding the formation of a company of capitalists. This statement being in the alternative the court must, under a familiar rule of pleading, adopt the view' that such company had not been but was merely expected to be organized in the future. The representation was not concerning an existing organization.
“Fraud cannot be predicated on a promise not performed. To be available there must be a false assertion in regard to some existing matter by which a party is induced to part with his money or his property. In morals the failure to perform a promise may be without excuse or justification, but in law false representations to authorize the rescission of a contract must be made in regard to existing facts”—Perkins v. Louges, 6 Neb. 220; Ranway v. People, 22 N. Y. 417; Grover v. Hedges, 58 Pa. St. 504. In the case at bar, if all that is claimed to have been stated or promised by the lessees were admitted to be true, no legal fraud or failure of consideration could be predicated thereon. Certainly this is so, since the claim rests entirely upon antecedent or contemporaneous representations and assurances not deemed of sufficient importance to be inserted in the written contract.
It is not asserted in the bill that this coni ract is invalid because such contracts are contrary to public policy. But, even if such averment may be regarded as unnecessary to raise that question, I do not think the contract can be impeached for that reason. This may be regarded as an improvident and reckless contract on the part of the plaintiffs, and for that reason it may impair or depreciate the value of their interest in the land, but that is no legal cause for setting aside the contract. If on the other hand, the contract had been one fixing a high price for the coal to be mined from the land, it would have appreciated rather than depreciated the value of the land. Until the lessees commence operations the plaintiffs have by the terms of the contract the “privilege
In no view of the averments of the bill can I see that the plaintiffs are entitled to any relief, and I am, therefore, of opinion that the decree of the circuit court should be reversed, the demurrer sustained and the bill dismissed.
Reversed. Dismissed.