53 W. Va. 501 | W. Va. | 1903
Two chancery suits in the circuit court of Calhoun County were consolidated by order of the court, (as I think they should . not have been, as they involved distinct subjects,) and were':- . heard together, and a joint decree made in the two cases. One- . was a suit by the Lowther Oil Company against Miller-Sibley. Oil Company; the other a suit by A. W. Urpman against the Lowther Oil Company. A joint appeal from that decree was ' taken by Urpman and Miller-Sibley Oil Company.
The .MilleR-Sibley case.
James Metz made a lease, 24 May, 1897, to Miles for oil and gas purposes of a tract, of 250 acres of land in Calhoun County. The lease was to continue three years from date “and as much longer as oil and gas can be found in paying quantities.” It contained no provision for rental or forfeiture. It provided for payment to Metz of a. royalty of one-eighth of oil produced, and $200.00 yearly for each gas well. It provided right to the lessee to remove machinery, and to “at any time surrender this lease and be relieved from all liability thereunder.” Miles assigned the lease to Miller-Sibley Oil Company, and it bored a well and found some oil, but by reason of tools becoming fastened in the well or from an invasion of salt water, this well was abandoned, and another well was bored, and in it a small quantity of oil was found, its quantity being a matter of controversy, but, say from two and three-fourth to five barrels per day. This well was pumped for oil. Two tanks were partly filled,
It is argued that there were no pipe lines nearer than ten miles to convey oil-.and that the company made fruitless efforts to get the Eureka Ripe Line Co. to extend a line to that section. This would put in' the the lease a condition for excuse not in it. The first lease gave Metz not a cent of return except a share of oil. His motive in making it was therefore only development. It is not reasonable, but unjust, that an oil company should thus bore two wells, discontinue work, remove implements, do nothing for a year, give plain sign of no intent to go on, and yet 'hold Metz’s land tied up. How long would it remain bound up so as to prevent him from contracting .with others to develop? True, this may not alone show intent to abandon; but it tends to show that we ought not demand any more evidence than is manifest in the case to establish abandonment. If, as is claimed now for the purpose of this case, oil in paying quantity was found, where did the company get the right to indefinitely suspend and not pay Metz his share of oil? Not from the lease. His right was to have the well worked or surrendered. Must we not conclude that the company regarded its search on this tract as vain and gave it up? “Title under an oil lease is inchoate and for purpose of exploration only until oil or gas is found. If it is not found, no estate vests in the lessee, and his title, whatever it is, ends when the unsuccessful search is abandoned.” Calhoun v. Neely, 201 Pa. St. 97.
It is contended for the Lowther Company that oil was not produced in paying quantity and that when it went upon the premises the three years term of- the first lease had expired. To this it is answered that the lease gave a term of three years “and as much longer as oil and gas can be produced in paying quantities.” What is meant by that provision? It means paying quantity to the lessee. “If the well pays a profit, even small,
It is suggested that the word “can” in this quantity phrase, is different from the word “is” commonly used. I do not see any appreciable force in the suggestion. Does it impart a power in the lessee to leave the wells and premises indefinitely? I see no error in the decree so far as respects this case.
The Deemajst Case.
James W. Metz, father of John W. Metz, made a written agreement, 22 January, 1892, selling and binding himself -to convey to John W. Metz a tract of seventy acres of land, for $800.00,- of which the document says $450.00 was paid in mules, cows, and a wagon, and for the balance John W. Metz gave three notes payable yearly thereafter, which agreement was recorded on its date. The tract is a part'of the tract of two hundred and fifty acres leased by James W. Metz to Miles and then to Lowther and operated by Miller-Sibley Co., and then by Lowther Oil Co., as stated above in the Miller-Sibley case. By deed dated 16 February, 1901, John W. Metz conveyed said seventy acres to A. W. TJrpman. Urpm-an brought a chancery suit against Low-ther Oil Company, James W. Metz and others to enforce specific performance against James W. Metz of said executory contract of sale made by James W. Metz to John W. Metz by compelling James W. Metz to pass a legal title to the seventy acres to TTrp-man. James W. Metz having leased the tract of two hundred
The contract between James W. Metz and John W. Metz being on record, the rights of Lowther and the Lowther Oil Company under the second lease would be later and subordinate to rights under that sale agreement, if enforceable. No possession was taken under it by John W. Metz. This is an important fact bearing on delay in failing for more than nine years to enforce the agreement; for when a vendee is in possession delay is more excusable, and time does not so soon bar his right. Abbott v. L’Hommenieu, 10 W. Va. 678; Pomeroy on Contracts, section 404; 2 Warv. on Vendors, section 746; Tate v. Pensacola, 53 Am. St. R. 251; Fry on Specif. Perform section 738. When in possession we can almost say t:me is no matter; but when he is not, it is far different. Why, if he has a just right of possession is he not in? If John W. Metz had good claim for the seventy acres, why remain out of possession over nine years, and buy and live on another, tract in the neighborhood, as he did? His delay constituted confession of no just right. The application for specific performance of a contract is addressed to the sound discretion of the court. He who asks it must have shown himself prompt and willing to comply with the contract on his part, and it will not be granted, if it would be inequitable and work hardship towards the party against whom it is asked. Dyer v. Duffy, 39 W. Va. 148, 159. The rule is more strictly applied in specific performance than in suits for account. Coal Co. v. Bell, 38 W. Va. 297. If since the con
Let us pause to bring in some facts of the case in connection with these principles. The purchaser delays over nine years. He does not pay any of $325.00 deferred purchase money, and thus was never in a condition to call for a deed. About five or six years after the sale oil interests increase the value beyond comparison with the value of the land at the date of the sale. The purchaser still pays nothing, hut lets four more years go by without asking performance, he right near his father in the neighborhood. His father all the time in possession using the land as his own. This son and purchaser being weekly at his father’s and knowing of his father’s use of the land. In fact, he rents the land of his father one or two seasons for cropping, paying a share of the crop. His father leases the land to Miles for oil, and under'the lease Miller-Sibley Oil Co. bbres two wells, the purchaser utters npt a€whisper against U, though well knowing it, and often visiting the land during oil operations. The father makes a second lease to Lowther under which the Lowther Oil Co. developes oil, the purchaser present when this lease is made; well knowing of it, frequently on the land during the operations, standing by and seeing the oil company spend- large amounts of money, and give forth not a whisper of protest. Even when oil gushed out as from a. cornucopia of wealth asking no deed from his father. Suppose this purchaser were himself to ask a court to compel his father to make a deed ? What court would give him a deed ? Urpman has only Metz’s rights — no more. His father had made
Another reason against the decree of performance is that the agreement of sale, if ever complete, wa.s rescinded by both vendor and vendee. The contract states that the price of the land was paid in stpck and a wagon and in these notes. James Metz never got the stock, but his son took it off to Roane County and sold it for his own use, and he never executed the notes, and he never took possession of the land, and he later surrendered to his father the written agreement. The motive of sale was base. John W. Metz being in debt, in order to get the personal property out of his hands away from creditors, to delay them until ihe should become able to pay them, went through the form of paying it to his father'on the land, making a sale document and recording it. He did not deliver the personal property. Was it ever a consummated contract? It seems not. If so, no rights come from it. But pass that feature. They afterwards rescinded. But was that oral rescission good? It is not a deed passing legal title. That can only go back by deed. Such a written contract may be rescinded by word of mouth, if the contract be destroyed pursuant to agreement, or possession be returned. Cunningham v. Cunningham, 46 W. Va. 1. Now, .the
There is another all-sufficient ground to refuse Urpman specific performance. The contract which ho asks equity to enforce is not executed, but executory. It was made with intent to defraud creditors, and equity will neither enforce nor cancel it but leave the parties alone. '“This rule applies not only to the original parties to the fraudulent transaction, but also to their heirs and all parties claiming under or by title derived from them where no equitable rights intervene to protect such parties.” McClintock v. Loisseau, 31 W. Va. 865. See Slifer v. Howell, 9 W. Va. 391. There are other reasons, however, for a decree declaring this agreement void as to the Lowther Oil Company. It is true Urpman had no notice of the fraud infecting the sale contracts, but his deed conveyed only in equity, and a purchaser of only an equity gets only such title as the ven
In view of the several reasons ample of themselves to justify the decree denying IJrpman relief by specific performance, I will add another equity principle, and that is, that specific performance in courts of equity is not a matter of absolute right, as arising from a debt of justice, but lies only in a sound discretion of the courts. The court has a right to look at all the circumstances and say whether justice and right demand a' grant of performance of it. Hogg’s Eq., section 396; Abbott v. L’Hommedieu, 10 W. Va. 677. Surely under all the facts we cannot say that such discretion was improperly exercised.
It is argued that as the sale agreement was on record, and the rescission of the agreement was not, the latter cannot prevail, as there is no notice to IJrpman. The record of the agreement has nothing to do with the case. It would, only, concern purchasers from James TV. Metz, not John TV. It is no factor on the questions whether the agreement was rescinded, or was fraudulent, or whether there was laches. Of course, the rescis: sion being oral, could not be recorded.
Uuder the above stated legal principle that specific performance rests in the sound discretion of the court, in addition to the facts already given, as further reason to justify denial of relief to IJrpman, I state that no injustice is done to him because he purchased when he had notice of the right of the Lowther Oil Co. by their lease on the open record, by actual possession of the land by the Lowther Co., and b}^ communications from John TV. Metz. Why did he buy knowing of the possession of the Low-ther Oil Co., and its operations? As Judge Green beautifully expressed the doctrine in Frame v. Frame, 32 W. Va. p. 478: “The earth has been described as that universal manuscript open to the eyes of all. When a man proposes to buy or deal
We must therefore affirm the decree.
Affirmed.