104 W. Va. 317 | W. Va. | 1927
In 1861 Wm. A. McMullin and G. A. Morrison conveyed to Samuel M. Young, as trustee for Elizabeth, the wife of Charles Young, a tract of 270 acres in Kanawha County. The grantees were given the privilege of using coal for household purposes. With that exception the minerals were reserved. The plaintiffs are claimants, by descent or assignment under the McMullin and Morrison title, of the minerals on the above tract. The principal defendants occupy parts of the 270 acres in severalty, under conveyances mesne or immediate from the Youngs. Those conveyances were made for the most part between 1880 and 1920 and purport to
. The only allegation in the bill tending to explain the long delay in prosecuting this remedy is the following:
“That nearly all the plaintiffs are non-residents of the State of West Virginia, and that none of the plaintiffs were aware until a short time before the institution of this suit that the defendants or any of them were claiming title to said minerals. ’3
Under Bill v. Schilling, 39 W. Va. 108, (121) it is doubtful if non-residence alone is sufficient to excuse delay. See also 21 C. J., Sec. 233, p. 240. A bare allegation of non-residence certainly does not comply with the rule announced in the leading case of Badger v. Badger, 2 Wall. 87 (94-5) and adopted generally by the courts, which requires .a bill in such case to set forth specifically how and when the matters alleged therein came to the knowledge of the plaintiffs. “A mere general allegation of ignorance at one time and knowledge at another is of no effect.” Wood v. Carpenter, 101 U. S. 135 (140); Harper v. Combs, 61 W. Va. 561 (564); Hogg v. Shield, 114 Va. 403; James v. James, 55 Ala. 525.
If it be conceded that the allegation of non-residence is good on demurrer, it is directly challenged by answer and not sustained by the evidence. Nelson V. McMullin is the only plaintiff who testifies. He admits knowing of defendants’ adverse claims in 1916 or 1917, yet he gives no reason
But, says plaintiffs’ brief, “How can it be said that the'Me-Mullins have slept upon their rights when they had no knowledge that there was oil in the premises until it was actually discovered and where have defendants suffered any possible disadvantage ever by any act of the plaintiffs ? ” Citing Lannerd v. Burnam, 93 W. Va. 744; Bates v. Perry, 51 Mo. 449.
It áppears from the evidence that coal banks have been opened on some of the tracts of defendants, and coal openly mined and sold commercially, though in a small wáy, for twenty odd years before 1924. The plaintiffs contend that the 'defendants had the right under the original conveyance to the Youngs to use the coal for domestic purposes, and that the sales of coal were in such small quantities as to furnish no notice of adverse claims. McMullin et al. v. Pritt et al., 103 W. Va. 582, is a' companion case to this. Much of the opinion in that case is applicable here, particularly our ruling on the right' to use the coal for domestic purposes. “It is not necessary to decide in this ease whether the privilege of using coal for household purposes, granted in the deed to Young, trustee, was a personal or real covenant. If personal, it ended with the conveyance in 1882 to Matheny. If real, it passed with land to Matheney; but it was only
The evidence discloses that many of the predecessors in the title of the defendants are now dead. There is accordingly lost to defendants the evidence of such decedents as to the manner in which their claim to the minerals was asserted. In discussing the changes in conditions that constitute laches, it is said in a well considered opinion: “What constitutes a material change of condition has been the subject of much judicial discussion and some judicial dissension; but whatever doubt there may be as to other circumstances, it never has 'been questioned, to our knowledge, that the death of one of the parties to the transaction is such change.” Riley v. Blackner, 51 Mont. 364 (371). See also Pusey v. Gardner, 21 W. Va. 469; Cranmer v. McSwords, 24 W. Va. 594; Carter v. Price, 85 W. Va. 744 (749). It also appears that the taxes on the minerals have been paid and expenditures made by defendants because of reliance on their titles thereto, and that third persons have expended money in the acquisition of rights in the minerals who would be seriously affected if their deeds were cancelled. The record is, therefore, re’plete with disadvantages to the defendants by reason of the plaintiffs’ delay in asserting their claims. 21 C. J. Equity, Secs. 226-7-8.
The brief also contends that the defendants ’ possession has not been sufficient to oust plaintiffs of their constructive possession of the minerals. It is not necessary for us to decide the question of ouster, and we do not do so. Laches does not necessarily depend on ouster or the statutory bar. Pusey
In the case of Smith v. Clay, Ambler 645 (more fully reported in 3 Bro. C. C. 646), decided in 1767, Lord Camden, then the Lord Chancellor of England, said:' “A court of equity which is never active in relief against conscience, or public convenience, has always refused its aid to stale demands, where the party has slept upon his rights and acquiesced for a great length of time. Nothing can call forth this court into activity, but conscience, good faith, and reasonable diligence; where these are wanting', the Court is passive, and does nothing. Laches and neglect are always discountenanced.” That statement, founded on equitable maxim, has become axiomatic. It is quoted by the leading authorities on equity jurisprudence. It has been restated in whole or in part in hundreds of decisions and has been criti-cised or questioned in none. Upon it is based. Trader v. Jarvis, supra, the leading ease on laches in this State. In reliance upon the principles pronounced in that ease, ,we. held that the lower court rightly refused to countenance plaintiffs’ demands in McMullin et al. v. Pritt et al., supra. A further examination of the authorities justifies our confidence in Trader v. Jarvis, supra. The evidence here presents a stronger case of laches than the Pritt case. Reasonable diligence and activity are entirely wanting in this case. The decree of the lower court will accordingly be affirmed.
Affirmed.