50 N.C. 440 | N.C. | 1858
The only question in this case was, whether, according to the proper construction of the deed, offered in evidence by the plaintiffs, the estate thereby granted, was an estate for years, or an estate at will. It was agreed that if the deed passed an estate for years, the notice given was insufficient, and that the Court should enter judgment of nonsuit, but if an estate at will, judgment should be rendered for the plaintiffs. The following is the deed in question:
"Know all men by these presents, that we, the undersigned, have entered into the following agreement. In the first place, A. J. Patton and G. F. Morris, on their part, have this day rented and leased unto F. F. Oram and Felix Axley, a certain tract of land, situated in Cherokee, North Carolina, in district No. 6, containing 170 acres of land, more or less, for the purpose of examining for minerals. The said Oram and Axley are to have the right to enter into the peaceable possession of the said land, and to carry on any operations they may deem proper and right, to develope whatever minerals the land may contain, with all the rights and privileges that may be necessary to carry on the said mining operations. In consideration of the above grant of the right of the said land, the said Oram and Axley agree to pay to the said Patton and Morris, the one-twentieth part of whatever minerals may be *441 found on the said land, after the ore is dressed and ready for market, to be delivered at the said mine, with the exception of iron ore, for which the said Oram and Axley agree to pay the said Patton and Morris, at the rate of 12 1/2 cents for every 2240 lbs. of iron ore they may use. The payments, hereby provided for, are to be made at the end of each and every quarter. It is, however, understood, that in case the said operation is abandoned, at any time, for the space of one year, it is to operate as a forfeiture of all the rights hereby conveyed. The said lease and rights hereby given and granted, are continued so long as the party, or successors, may deem it proper to operate." Signed and sealed by plaintiffs and defendants.
His Honor being of opinion with the plaintiff, upon the case agreed, gave judgment accordingly, from which the defendants appealed to this Court. This case turns upon the construction of the deed, which is set out as a part of the record. His Honor was of opinion that its legal effect is to create a tenancy at will, we are of opinion that its legal effect is to create a tenancy from year to year, and consequently, the notice given was not sufficient; for, to determine an estate from year to year, six months' notice, either on the part of the lessor, or of the tenant, before theexpiration of the current year, that at that time the estate will be considered as terminated, is necessary. This is familiar learning in the text books.
We arrive at the opinion that the deed creates a tenancy from year to year: from a consideration of the purpose, for which the lease was made: — that the rent reserved is payable quarterly: — that a condition is annexed, whereby the term is to be forfeited by a non-user, for one year, on the part of the lessors, who were to work the mine; — that they have, at any time, the right to discontinue the operation of the mine, and that the formality of a deed, would hardly have been *442 thought necessary, if only a tenancy at will was to be created, which could be terminated, at any time, upon reasonable notice; Kitchen v. Pridgen, 3 Jones' Rep. 49.
PER CURIAM, Judgment reversed, and judgment of nonsuit, according to the case agreed.
NOTE: His Honor, the CHIEF JUSTICE, was absent during the whole of this term, on account of sickness.
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