47 W. Va. 63 | W. Va. | 1899
Lead Opinion
M. B. Potts brought a suit in equity in the circuit court of Wetzel County against W. R. Fitch, F. P. Lowther, E. J. Thompson, and Henry Oil Company, a corporation, and. filed his bill at August rules, 1897, in which he claims that he and the defendants entered into an agreement to procure a lease for oil and gas purposes on a certain tract of land of about ten acres situated in Tyler County, W. Va., that said parties were to share equally in the expenses and profits of same: that said Fitch attended to taking the lease, and took it in his own name; that at the time said agreement was made an oil well was being put down in the immediate vicinity, known as “Wood’s Well No. I;” that, after said Fitch was advised that Wood’s well had been drilled, and was a producer, but before plaintiff was aware of the fact, he met Fitch, in the presence of said E. J. Thompson, and sought to obtain an assignment of one-fourth of the lease in accordance with the contract. Fitch, however, represented to plaintiff that he had already given to said Lowther, his father-in-law, an undivided half interest in the lease, leaving himself at that time only one-fourth interest, and that, if he assigned one-fourth of the lease to plaintiff, he would be left without any interest; which statement was false, as plaintiff afterwards learned. The plaintiff, relying on said false statement, agreed to accept one-eighth which was assigned to him, and paid his proportion of the money therefor, and received said eighth, protesting that he was entitled to one-fourth of the entire lease. The plaintiff also alleges that at the time the one-eighth interest was assigined to him said Fitch held three-eighth. Lowther one undivided one-fourth, and Thompson an undivided one-fourth, and that Fitch’s statement to him that he had conveyed one-half interest to Lowther, and, if he conveyed one-fourth interest to plaintiff, he would have
The first assignment of error claims that the court erred in dismissing the plaintiff’s bill; the second, that the court erred in not decreeing the one-eighth of the leasehold described in the bill to plaintiff; and, sixth, the court erred because the jugdment was contrary to the law and the evidence. These assignments raise the same questions, and may be considered together. The evidence discloses the fact that there was an agreement between Fitch, Lowther, Thompson, and the plaintiff to jointly procure a lease for oil and gas purposes on a certain ten-acre tract belonging to William Ferrell and said parties were to share equally in the expenses and profits of same leasehold, for which they were to pay forty dollars. It appears that Fitch obtained said lease, and took it in his own name, and, when the time came to assign to each party his respective portion of one-fourth thereof, Fitch deceived and misled plaintiff by his false representations, and thereby induced him to accept one-eighth instead of one-fourth. Now, what was the legal effect of this state of facts? A court of equity surely would not permit the plaintiff to be deprived of the benefit of his contract by false and fraudulent representations. The contract alleged in the bill and shown, I think, by the weight of evidence, raised a trust in favor of the plaintiff.
Rehearing
ON PETITION FOR REHEARING.
Counsel for W. R. Fitch, in his petition for a rehearing in this case, contends that a trust is not created in the absence of payment of purchase money. This, however, depends on the circumstances of each particular case. In
For these reasons the rehearing should be refused.
Reversed.