52 W. Va. 331 | W. Va. | 1902
Lead Opinion
Arthur Cowan was the owner of three tracts of land in Harrison County, one containing three hundred and ten acres, another sixteen acres, another sixty acres, aggregating three hundred and eighty-six acres. On the 16th day of February, 1860, he conveyed to Gideon D. Camden, Edgar C. Wilson and Delia M. Allen, executrix of Guy R. C. Allen, deceased, in consideration of one thousand dollars cash “All the one full half of all tho stone coal in and upon the following tracts of land,” describing the three hundred and ten acres and the sixteen acres of land, granting in the same deed to the .said party of the second part the right to enter upon tho said lands to dig, mine and remove the said coal with all necessary rights of way, but providing that before the vendees should proceed to dig, mine and remove the coal they were to pay to the vendor five hundred dollars, for which a lien was retained on the said coal; but the vendor had no right to demand tho said five hundred dollars until the vendees should proceed'to mine and remove the said coal. This deed was not recorded until January 2, 1885. By deed dated the 18th day of January, 1866, the said Arthur Cowan'in consideration of the sum of five hundred dollars to bo paid as thereinafter provided, without referring to the said deed of February 16, 1860, conveyed to Gideon Draper Camden
*334 “5th. I give to my said son. James P., in trust for the rise of his two daughters, Mary Bell and Joanna and his son Robert 0., throe-fourths of my home farm near Wilsonburg in said county, but I require him to pay to Nathan Gof£ the residue of a debt I owe Mm which was originally about three thousand and one hundred dollars, and for which ho has a lien on the same farm, and to enable my said son, James P., to pay the Goff debt, I release to him the payments of this note to me for 8.66 dollars,and also give to him the benefit of two notes given to me by my son, John T., but I only release to him his note aforesaid and give him the benefit of his brother John’s two notes in the event he pays the Golf debt.
“6th. The remaining fourth of my said home farm I give to my two grandchildren, Michael E. Cowan and Ida Westwood, his sister.”
James P. Cowan failing to pay the Golf debt proceedings were had in the circuit court of Harrison County, instituted by Michael E. Cowan, Ida Westwood, &t al., against James P. Cowan, et oil., wherein James II. Morrison became the purchaser of an undivided three-fourths interest of said three hundred and eighty-six acres of land at commissioner’s sale under decree of the court, at the price of five thousand and five hundred dollars; and by deed dated the fth day of December, 1881, N. Golf, Jr., commissioner, conveyed the said three-fourths interest to said James II. Morrison, purchaser. Said Morrison also obtained the title from said Michael E. Cowan and Ida Westwood for the other one-fourth interest in said land.
James II. Morrison filed his bill in the circuit court of Harrison County against the Clarksburg Coal and Coke Co., a corporation, X. T. McCann and James P. Cowan, surviving executors of Arthur Cowan, deceased, setting out the various conveyances mentioned and other conveyances of all the said coal in said tract to said X. T. McCann, and from him to the said corporation defendant, alleging that the said five hundred dollars had never been paid to the said Arthur Cowan or to his executors, and that by virtue of the conveyances to him he became the owner and was entitled to the same with interest from the 10th day of July, 1900, when the defendant, the Clarks-burg Coal and Coke Co., began to remove the coal from the premises; that the same was a lien upon the undivided half of
The cause was heard on the 16th day of January, 1901, upon the bill and exhibits and upon the several demurrers of X. Y. McCann and Clarksburg Coal and Coke Co. rejoinders therein by the plaintiff, when the court sustained the demurrers and plaintiff not desiring to amend his bill'the same was dismissed and a decree for costs given the defendants; from which decree the plaintiff appealed and assigned the following errors:
“1. The record clearly shows, that when Arthur Cowan conveyed the land in trust and by his will, that he conveyed the whole of the three hundred and eighty-six acres, which after-wards became vested in the petitioner, without any exception or reservation, including the coal, the five hundred dollars, for which a lien was retained on the one-half of the coal, to be paid for the use of the land, and that petitioner was entitled to the said five hundred dollars and the court erred in not so holding.”
“2. The record further shows, that the' five hundred dollars to be paid by Camden was for the use of the land for roads, etc., and was a covenant running with the land. And when the entire land, including the coal and everything else without exception or reservation, was conveyed by Cowan and after-wards conveyed to petitioner, every interest belonging to Cowan, including the five hundred dollars, became vested in petitioner; and the court erred in not so holding.”
“3. The court erred in sustaining' the demurrer to the bill.”
“4. The court erred in dismissing the bill.”
It is insisted by appellant that the grantor, Arthur Cowan, in his deed of trust to Nathan Goff, and by his will executed afterwards, intended to, and did convey and devise all his right, title and interest to. the said home farm of three hundred and eighty-six acres, including his right to the five hundred dollars to be paid when the purchaser of the one undivided one-
Section 5, chapter 71, Code, provides among other things, “Any interest in, or claim to real estate may be disposed of by deed of will.” And section 8 of the same chapter provides that “Where any real estate is conveyed, devised, or granted to any person without any words of limitation, such devise, conveyance, or grant shall be construed to pass the fee-simple or the whole estate or interest which the testator or grantor had power to dispose of in such real estate, unless a contrary intention shall appear by the will, conveyance, or grant.” Seetionl of' chapter 72, gives the general form of a deed for conveying property; and section two of the same chapter provides that “Every such deed, conveying lands, shall, unless an exception be made therein, be construed to include all the estate, right, title and interest whatever, both at law and in equity, of the grantor, in or to such lands.” In his conveyance to Gideon Draper Camden of the 18th of January, 1866, of the one undivided half of the coal in said three hundred and eighty-six acres of land Arthur Cowan conveyed the said coal and also the right to the grantee “To enter upon 'and occupy such parts or parcels of the tracts herein described as may become necessary from time tó time, for road and buildings required in the mining and transferring the coal to the railroad and for the use of the lands.so required for road as aforesaid, the said party of the second part is to pay to the party of the first part the sum of five hundred dollars ($500.00) when he proceeds to remove the coal as aforesaid, but not before, for which sum a vendor’s lien is hereby retained upon the property herein granted, and the said Arthur Cowan doth hereby covenant with the said party of the second part that he will warrant generally the property hereby conveyed.” Thus it appears that the lien reserved attaches as well to the casement in the land for road and buildings as to the coal conveyed. It is insisted by counsel for appellees that the lien of five hundred dollars reserved to said Cowan is on an entirely distinct portion of land from that owned and claimed by appellant, and then illustrate their position as follows: “Suppose that Cowan, being the owner of ten acres of land, had sold to Camden, by title bond as in the latter case, a two acre lot, or had conveyed to him the legal title thereto and retained a vendor’s lien, as in
Counsel for appellees contend that the cases just cited do not apply to case at bar, because the conveyance by Cowan to Goff and his devise in his will are of an entirely distinct portion of the land and no part of the lien-subject. The conveyance to Goff as well as the devise covers and includes the whole property without exception, reservation or limitation, and is effective as to the surface of the land to be used and damaged by the mining and removal of the coal, and as to any interest the grantor might have therein of any character whatever. It is
Appellant in his brief has well said: “This is a vendor’s lien of a peculiar nature, it being in the nature of a covenant running with the land.” It appears that the purchase money of the coal being one thousand dollars was paid in hand as set forth in deed from Arthur Cowan to Camden, d al., dated February 16, 1860, which deed was lost or mislaid, and not recorded until 1885; the loss of which deed was the occasion of the deed of the 18th of January, 1866, being made; and the lien of five hundred dollars retained was not for the coal conveyed but for the use of the land and damages that might be done to it in the removal of the coal and for road, buildings, etc., and was not to be paid, until the purchaser of the coal should begin to remove the same; and as the five hundred dollars was intended to make good the damages to the land and for the use of the same in removing 1he coal it becomes very clear that Cowan intended that his devisees should have the benefit of the five hundred dollars, and his devise as well as the conveyance to Goff being without any words of limitation, must, under scetion 8, chapter 71, be construed to pass the whole estate and interest which Cowan had power to dispose of in such property, no contrary intention appearing either by the grant or the will of said Cowan.
The demurrer to plaintiff’s bill should have been overruled. The decree is therefore reversed and the cause remanded to the circuit court of Harrison County for further proceedings to be had therein.
Reversed.
Concurrence Opinion
(concurring):
I concur in the decision, but not upon the grounds stated in the opinion of the majority. Cowan granted coal under the land and “the right to enter upon and occupy such parts and parcels” of the land as should become “necessary from time to time for road and buildings in the mining and transferring the coal to the railroad and for the use of the lands so required;” Camden was to pay fire hundred dollars, when he should proceed “to remove the coal as aforesaid but not before,” and, for that sum, a vendor’s lien was retained upon the property granted. Afterwards, Cowan conveyed the land in trust to secure the payment of a debt, without excepting or reserving what had been conveyed to Camden. Still later he devised the land, without exception or reservation.
The theory of the opinion is that said sum of five hundred dollars so secured, was an estate or interest in the' coal, and that as the coal was included in the deed of trust and will, iti passed from Cowen, although the coal itself did not pass by these two instruments. It treats the five hundred dollars as a debt created at the time of the execution of the deed executed to Camden, but, nevertheless, as a.part of, or interest in, the coal, because secured upon it by a vendor’s lien, so that it passed by the subsequent deed of trust and will, although not mentioned nor expressly granted or assigned by those instruments. That a chose in action or claim of any kind capable of assignment may be transferred by deed, as well as by any other writing is beyond question, but, to pass, it must be, in some way, included in, or covered by, the deed. No mention of it appearing in the deed or will, this supposed five hundred dollar debt did not pass unless it was a part of the coal. It may have so passed, but it is by no means clear to me, nor do I regard Turk v. Skiles, 45 W. Va. 82, and Building Association v. Page, 46 W. Va. 302, as having established this proposition. So far as the lien reserved as security for the debt, conflicts with the subsequent deed made by the lien creditor, conveying away the lien-subject, it must yield, on the principle of estop-pel or release by implication, as between the parties. That suffices to work out the equities of the parties in Turlc v. Skiles. In the similar case of Bank v. Harman, 75 Va. 604, it was done by' treating the second grantee as a purchaser for value
All the authorities hold that a lien upon land is not an estate or interest in the land. “A lien is not, strictly speaking, either a jus in re or jus ad rem; that is, it is not a property in the thing itself, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing.” Story’s Eq. Jur. ss. 506, 1215; Brace v. Duchess of Marlborough, 2 P. Wms. 491; Ex Parte Knott, 11 Vesey 617. “ ‘Lien’ is a term of very large and comprehensive signification. In its widest sense it may be defined to be a hold or claim which one person has upon the property of another as a security for some debt or charge. But it never imports more than security; it confers no right of property.” 19 Am. & Eng. Ehcy. Law (2d Ed.) 6. Even a mortgagee, holding the legal title, is said to have in equity, only a chattel interest. 4 Kent’s Com. 160; Clark v. Beach, 6 Com. 142; Wilkins v. French, 20 Me. 111; Kinna v. Smith, 2 Green (N. J.) 14; Clift v. White, 12 N. Y. 519. “A lien upon land is not ah estate or interest in it.” Brackett v. Gilmore, 15 Minn. 251; Bidwell v. Webb, 10 Minn. 62; Donohue v. Ladd, 31 Minn. 244; Power v. Bowdle, 3 N. Dak. 107; Bouvier’s Law Diet. Title, “Lien.” “An equitable liefi is not an estate or property in the thing itself, nor a right to recover the thing, — that is, a right which may become the basis of a possessary action; it is neither a jus ad rem nor a jus in re. It is simply a right of a special nature over the thing, which constitutes a charge or encumbrance upon the thing so that the very thing itself may be proceeded against in an equitable action, and either sold, or sequestered under a judicial decree, and its proceeds in the one case, or its rents and profits in the other, applied upon the demand of the party in whose favor the lien exists. • It is
Though the appellant can have no right to said sum on the theory that it came to him as a fund or claim by virtue of the conveyances, he is entitled to it, because, as a fund, it was nonexistent at the time said subsequent conveyances under which he claims were made, but has since sprung up out of the land, while owned by Mm, by virtue of the provisions of the deed from Cowen to Camden. It is compensation for the use of Morrison’s land, and, in substance and nature, a rent, though not payable' periodically,- and, in that respect, not' strictly within the definition of rent. It is a gross sum stipulated for such use as might be made of the land in the future under the terms of the deed, and never to become due and payable until the land should be so used, and, in fact, did not become due, or, in any sense, a liability until about forty years after the date, of the deed. It plainly appears from the language of the grant of the easement that 'it was intended to take effect in futuro and not in presenli, and that the springing up of the liability to pay the five hundred dollars and the taking effect of the grant in possession should be simultaneous, and that the vendor’s lien was reserved to secure the payment of a debt designed to arise in the future. At common law, a freehold estate in corporeal property could not be made to commence in futurobut commons, rents, ways, franchises, remainders, reversions, etc., being incorporeal and neither requiring nor being susceptible of livery of seizin, were said to lie in grant, and estates in them could be made to commence in futuro'. Such grants are known as executory limitations. “The freehold remains- in the grantor, or in the devisor’s heirs, until the time appointed for it to take effect, and then passes to the grantee or devisee, by the force and effect of the several statutes. The future limitation may be either appointed to arise upon a contingency (e. g. a devise to the heirs of A. who is yet living, or to the unborn son of A.), or at a period certain (e. g. a grant to A. for life, or in fee, to commence five years from the date).” 2 Min. Inst. 431. The statutes referred to are those of uses, wills and
