194 A.D. 827 | N.Y. App. Div. | 1921
The judgment in this partition action directs the sale and distribution of the proceeds of the mineral rights reserved
John D. Balmat, at his death in 1862, owned the farm, subject to a mortgage. It passed, under his will, to his wife and his thirteen children, subject to said mortgage. In 1883 the mortgage was foreclosed and the property purchased by Charles Anthony, and in 1886 he sold and conveyed it to David H. Balmat who was one of the thirteen children of John D. Balmat. In 1889 David H. Bahnat conveyed the farm, reserving, however, the ores, mines and minerals, and the right to dig and carry away the same. On September 3, 1892, he executed, with the American Talc Company, a so-called mineral lease under seal, duly acknowledged and witnessed, transferring to it and its assigns the right to remove the talc, talcous rock, soapstone and similar substances, for a period of twenty years from the 15th day of October, 1910, at a royalty of eighty cents per ton, the minimum royalty being $1,500 per year, payable quarterly, with the right to the company to terminate the grant by a written surrender or release executed in form for recording in the county clerk’s office and the payment of all arrearages of royalties. This lease was duly recorded in the county clerk’s office September 16, 1892, and by mesne transfers the International Pulp Company has succeeded to the rights of the American Talc Company. In 1903, in an action between the heirs of John D. Bahnat, it was adjudged that the said David H. Balmat held said mineral rights as trustee for said heirs and their successors. By an instrument dated October 15, 1910, between all the heirs at law of John D. Balmat and their successors in interest
The complaint is the usual one in partition and alleges-that the International Pulp Company and the Union Talc Company, or both, are engaged in mining talc on the premises under the lease given by David H. Balmat to the American Talc Company September 3, 1892, referring to its record, which by mesne conveyances is now owne.d by the International Pulp Company, or under a lease or written instrument which is not recorded, but which will expire on or about October 15, 1930, as the plaintiff is informed and believes, and which lease is executed by only a part of the owners of the mines and minerals therein described. It then alleges that the International Pulp Company and the Union Talc Company, one or both, claim to be entitled to a lease of all interest in the talc, talcous rock, asbestos and soapstone in and under said premises, for the period of twenty years, ending October 15, 1930, the precise nature and amount of the same being dependent upon unrecorded instruments and are unknown to the plaintiff. It then states the rights and interests of the parties as “ subject to such leasehold interest.”
The said Rosalie A. Smith swears that when the lease of
At the time of the taking of the deed, the Dominion Company and the McLears knew that the International Pulp Company was actively mining talc on said premises, and had been for a great many years, and had made extensive improvements in opening and operating said mine. They knew from the complaint in the action that it was operating the mine under the leases mentioned in the complaint, and they knew, or could have known by proper inquiry, that royalties were being paid to Mrs. Smith and the Carr heirs under a lease of the mine. They knew that the leases to Pilling & Crane, of September 13, 1903, duly recorded, excepted “ talc, talcous rock and soapstone, or other similar substances covered by outstanding leases now in effect.” They also knew that the Pilling & Crane leases were executed under seal by John D. Smith, from whom Rosalie A. Smith derived her interest, and by Rosalie A. Smith herself, as well as by Edgar A. Carr, Etta P. Fisher, Ophelia M. Benjamin and Bower M. Carr. They also knew, or were chargeable with knowledge, of the facts relating to the alleged interest of Celia Woodcock. The Dominion Company cannot, therefore, stand in any better position than Rosalie A. Smith and the Carr heirs stood in at the time of the conveyance. It was not a purchase in good faith and without notice, but with notice.
We have spent too much time in showing that the Dominion Company and the Carr heirs, with their knowledge of the facts, are not in a position to claim that the lease of October fifteenth was not executed by or in behalf of Rosalie A. Smith and the Carr heirs. The original lease given by David H. Balmat to the American Pulp Company covered every interest in the mineral rights at the time of its execution, and the International Pulp Company has for many years past been taking and removing talc from the mines and has been paying
September 13, 1903, the firm of Pilling & Crane entered into agreements under seal with the heirs of John D. Balmat and their successors in interest, who represented substantially twelve-thirteenths of the mineral rights, by which the said
It is urged that the appellants cannot review the judgment here, as their answers were not served upon all the defendants pursuant to section 521 of the Code of Civil Procedure. But section 1543 makes it clear that an answer in partition need not be served upon another defendant unless it controverts the title or interest of that defendant “ as stated in the complaint.” Here the complaint sets up all the leases, referring to the record of those which are recorded, and after giving the relationship of the parties alleges that their rights respectively are subject to the leases. The appellants’ answers, therefore, are not controverting the title of any- defendant as stated in the complaint. It is also- urged that the notice of appeal has not been served upon certain defendants who did not appear, but section 1300 of the Code of Civil Procedure, under the caption “ appeal, how taken,” requires the notice to be served upon the attorney for an adverse party. In Barnes v. Stoughton (6 Hun, 254), relied upon to sustain respondent’s contention, the notice of appeal was under section 327 of the old Code of Procedure, which required it to be served upon the-adverse party. Section 799 of the Code of Civil Procedure provides that if the defendant has not appeared, -service of a notice or other paper in an ordinary proceeding
It is also urged that a tenant in common cannot sell his interest in the common property ,to a stranger to the prejudice of his cotenant. It is unnecessary to cite authorities to the effect that one tenant in common can only convey just such rights as he has, and his grantee is confined to that right. It is also clear that a tenant in common cannot sell his interest in the entire property and avoid the conveyance; neither can his cotenant do so. It is not important to discuss the leases as leases. The ore company makes no claim against anybody who did not sign them; it only seeks to enforce the options given by them against the parties executing them. It is not sought to permit a grantee of a tenant in common to go on and deplete the property by taking ore from it. The ore company does not seek a delay or to prevent a sale of the property. The complaint, and the the answer in that respect, are harmonious; a salé is to be had. The only question the ore company raises is that having exercised the option to purchase, the moneys which otherwise would be distributed to the parties from whom it purchased, should be paid to it, less any balance of the unpaid purchase price. It makes no difference to any tenant in common what becomes of the money to be paid on a sale of the interest of another cotenant. That question is one purely between the. ore company and the party contracting with it; the plaintiff and every otjier party entitled -to share in the proceeds will get their full share unprejudiced by the fact that other - tenants may have con-tracted away their share. It is unnecessary to figure out exactly just what fractional interest the ore company has in the property. It claims an interest of seven hundred and twenty seven-hundred-eightieths by virtue of its options and concededly it owns the fee to thirty seven-hundred-eightieths which is not bound by the lease or options, so that, in substance, about thirty seven-hundred-eightieths is seeking to deprive the ore company of ah its substantial rights in the property. A confusion has arisen, I think, by
The ore company, in its answer, alleged all the facts; no party at the time raised any question as to the sufficiency of the tender; the facts constituting it and payment were proved upon the trial without objection; the record does not show that any question was raised by any party until the tentative opinion was' handed down by the court throwing a doubt upon the validity of the tender for the reasons stated. The ore company immediately asked permission to pay the money into court, amend the answer in that respect and to open the case for that purpose, which motion was denied upon the ground that an option contract is" not favored and the equities of the parties were about equal. It was not suggested that the ore company had acted in bad faith in putting the tender in the bank, or that it had not acted seasonably after the question was first raised. Its intent to fully exercise the option and to become the purchaser of the property and pay for it appears from the findings. The respondents studiously avoided making objection, evidently with the view of preventing an application for an amendment. We may at least
Manifestly the provisions of the Code of Civil Procedure relating to tender have no application to this case. A payment-into court is necessary if it is to extinguish a debt, stop interest, prevent the recovery of costs or in the cases provided by sections 731-734 of the Code of Civil Procedure. Here the tender was not for any such purpose; it was simply the act of a party indicating its acceptance of an option and an attempt by it to perform its conditions; hence no payment of the money into court was necessary. (Rush v. Wagner, 184 App. Div. 502; Cresco Realty Co. v. Clark, 128 id. 144; Smith v. Slosson, 89 Hun, 568, 573; Bieber v. Goldberg, 120 App. Div. 457, 458; Exchange Fire Ins. Co. v. Norris, 74 Hun, 527; Freeson v. Bissell, 63 N. Y. 168; Selleck v. Tallman, 87 id. 106; Halpin v. Phenix Ins. Co., 118 id. 165, 178.) The cases recognize that by the payment of the money into court the tenderee is bound to get it and the tender cannot be withdrawn. Here, evidently, the payment is irrevocable and the only relief the ore company asks or can have is that after the parties from whom it purchases have been fully paid by it, or by the proceeds of the sale of the property to be brought into court, it shall have the remainder of the proceeds if any. This is not an action at law based upon technical grounds, but relates to the marshaling of assets in a court of equity. As we have seen, the acceptance of the offer, and the tender, created a valid contract for the mines. Where premises under contract of sale are sold in partition, the vendor and vendee will receive the share of the proceeds to which they are respectively entitled. The question here is not one of tender, but of an offer to perform a contract and being prevented from performing, which is equivalent to performance unless it is sought to bar costs, to prevent a recovery of money loaned or stop interest. As the basis of creating a liability or accepting an offer, a payment into court is not necessary.
When an option is accepted, the acceptance makes a mutual contract which may be specifially performed. (Hamilton College v. Roberts, 223 N. Y. 56, 63.) In specific performance, where a tender is refused, it is unnecessary to pay the money into court. (Murray v. Harbor & Suburban B. & S. Assn., 91 App. Div. 397; affd., on opinion below, 184 N. Y. 596.) A court of equity is not bound by stringent rules so that it must deny equity and justice on technical grounds. Equity does not expect or require that vain and unnecessary things be done. The other parties interested in the option cannot suffer, as an officer of the court will have the moneys and will pay them; the only question is in what manner will he dispose of the balance of the moneys, and equity, justice and fair dealing can have but one answer to that question. It was error for the court below to determine that the option was not exercised because of the failure to pay the money into court.
The questions upon which the respondents have succeeded do not affect, in a substantial degree, the original parties who gave the leases and options, or their descendants, but principally affect men and mining companies who are dealing in this speculative and uncertain kind of property. The most of the conveyances from the tenants in common to the respondents contain this, or a similar provision: “ This conveyance is made subject to two leases of the rights and interests hereby conveyed and an option to purchase the same contained therein. All obligations therein of parties of first part are assumed by the party of second part.” The position of the respondents is technical and against the equities of the case. The fact that Pilling & Crane took leases and options of mineral rights does not indicate that there was anything of value covered by them. The nature of such property is well known. To have a substantial value there must be expensive drilling to show whether or not there is ore of commercial value.. Quite probably the original lessors and their representatives would not have known that there was valuable ore in the reservation aside from the development made by the ore company. It has drilled five holes, one of which was
Considering the authorities cited in the opinion at Special Term, it may be considered that the question as to the-payment of the money in court is not entirely free from doubt. If a mistake has been made, it was the innocent mistake of an attorney, an officer of the court, and the client who seasonably asks to be relieved from such a mistake before judgment should be favored. In the interest of safety the appellant asked for the amendment. We should not compel it to rest its case upon what may be the final decision of the court, upon a technical question of practice which it seeks to avoid. The court will render assistance to suitors in arriving at a determination of litigations upon the merits; defects or omissions will be corrected by proper amendments or disregarded as justice requires. (Code Civ. Proc. §§ 721-723.) The motion should have been granted upon payment of motion fees and a trial fee, and this question of practice removed from the case.
The order should be reversed and the motion granted, upon the payment by the ore company of ten dollars costs of motion and a trial fee. The judgment" appealed from should be
All concur.
Order reversed and motion granted, upon payment by ore company of ten dollars costs of motion and a trial fee. Judgment appealed from reversed upon the law and the facts and a new trial granted. The reversal is without costs so far as the Northern Ore Company is concerned, but with one bill of costs to the pulp and talc companies to be paid from the proceeds of sale. The court disapproves of findings of fact 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 58, 61.