65 W. Va. 39 | W. Va. | 1909
Thomas Bunfill, 3d February, 1897, made an oil and gas lease of 60 acres of land to A. B. Campbell and J. W. Swan. The lessees paid Bunfill a cash bonus or consideration for the lease" of fifty-five dollars. The lease is for a term of fire years, and so long thereafter as oil and gas shall be found in paying quantities or rental paid thereon. The lease contained a clause on which this litigation turns. “Provided, however, that this lease shall become'null and void and all rights hereunder shall cease and determine unless a well shall be completed on said premises within three months from the date hereof, or in lieu thereof thereafter the parties of the second part shall pay to the parties of the first part fifteen dollars for each three months’ dela3r, payable in advance, until such well is completed.” 3STo well was put down under this lease, nor was the fifteen dollars commutation money paid. On 5th May, 1897, Bunfill made an oil and gas lease of the same tract to C. E. Pyle.- The contest is between those claiming under these conflicting leases. When the first lease was made Bunfill owned only seven undivided ninths of the tract. Iiis brother John owned one ninth, and the Sindledecker heirs the other ninth. Thomas Bunfill secured a conveyance from John Bunfill of ,his ninth, 15th March, 1897, before the three months limit in the clause quoted above had expired. He never did get in the ninth interest of the Sindle-deckers. Some of them were infants, and under a judicial proceeding Miller, trustee, acquired that share of the oil and gas. Pyle, the second lessee, assigned an interest in his lease to Hard- ' man, and Pyle and Hardman assigned the second lease to Miller, trustee, and thus Miller claimed the whole, except reserved royalties to Pyle and Hardman. The first lease came to be owned by Campbell, Swan, Stealy and Henderson. Ho possession was
One argument made for the second lease is, that the first has no covenants binding the lessees to do anything, unless they wished; that it binds the lessees for nothing until they should get oil, either to drill a well or pay money; that the lessor could have no suit for money or to coonjpel operations of development of oil. It is thence contended that the contract wants an.essential of a binding contract, namety, mutuality. Under this view the lessor could renounce or revoke the lease at any time, because if not binding the lessee for anything, neither would it bind the lessor, and hence the second lease would be an electioir by Bunfill aiot to be bound, and'would confer good title. For this contention we are cited the case of Eclipse Oil Co. v. South Penn Co., 47 W. Va. 84, and Glasgow v. Chartiers Oil Co., 153 Pa. 48. We differentiate the present case from the Eclipse case from the fact that aio money was paid as a bonus in that case, whereas, one of fifty-five dollars was paid for the lease iaa this^case. We cannot see that when a lessee pays a araoney consideration for the right or privilege of boring for oil within a fixed tiaaae, and in default of so doing or paying money as
The lessees under the first lease neither drilled a well within three months nor paid the money in place of it stipulated in that lease. For the second lease it is contended that such failure of itself caused the death of that lease; that it would work this result without any act on the part of the lessor declaring a forfeiture, even had the second lease not been made; that Bunfill could have remained quiet, done nothing to manifest an intent to insist upon the death of the leáse, and it would have come to its end absolutely from such failure alone; that the “paper is self-destructive.” It is said the document contains no words calling for an act declaring a forfeiture to end it. The contention for the first lease is, that an oil lease implies a warranty of good title, and that as .Bunfill did not have the Sindle-decker ninth, the title was not. good, and work of development could not be safely done, and he could not insist on a forfeiture.
The great question is, Was Bunfill, under the circumstances of defective title, and waiver of forfeiture upon the facts to be stated below, in a condition, on principles favored in equit}1, to make the second lease and thus, declare a forfeiture and devest the right of the first lessees? The circuit court’s finding is, that Bunfill was not. This finding is upon much oral evidence and conflicting, .and we cannot reverse, unless we can say that such finding is plainly wrong. We cannot say go. That Bun-fill’s title was bad no one disputes, and he himself admitted it. He did not disclose its defects to the first lessees, but represented to them that it was good, and leased the whole tract. Some time after the first lease was made, before the three months had gone,
It is contended that the lessees under the first lease could have drilled for .oil by right of being cotenants of the Sindledec-ker heirs, and were bound to do so. It would be waste by law and a wrong, by our statute, Code 1899, chapter 92, section 2. 30 Am. & Eng. Ency. L. (2d Ed.) 265. It has several times been held in this state that one tenant in common cannot, commit waste bjr extracting oil. Williamson v. Jones, 43 W. Va. 562; Cecil v. Clark, 49 Id. p. 470, and 47 Id. 402. Chancellor Ivent held that injunction will go to stay waste “between tenants in common, where the waste is destructive to the estate and not within the usual and legitimate exercise of the enjoyment.”
It is said that when Campbell and Swan took the first lease they knew of the outstanding titles. They deny it. Perhaps they had constructive notice. What if they had actual notice ? They had a warranty against it, since an oil lease implies a warrant)'’ for quiet enjoyment. Headley v. Hoopengarner, 55 S. E. 744, (60 W. Va. 626). If a man have knowledge of a lien or defect of title, yet takes a general warranty, he can rely on the warrant)'.
Another point made for the second lease is, that a tenant cannot, while in possession, attack his landlord’s title, but must give up possession before- he can do so. This rule has no application in this case. Campbell and Swan never took possession. There was no possession to give up. A tenant in possession cannot defeat his landlord’s title, and disavow the tenancy, by setting up a hostile title; but this principle is not fitted to this case. The lessees do not say that their landlord’s title is bad as.to those interests which he owned. They only say that he leased all the tract, as if no other person had an interest, when in fact
Again, it is said there was no eviction of the lessees. There was no possession by the first lessees. Eviction, then, is ont of the question. But it is said that as there was no possession and no eviction, it thence follows that the only remedy for those lessees is an action at law for the breach of the warranty implied from the lease. 'Would not want of possession and eviction defeat it? In such an action eviction would be material, but not in this case. The question here is. Is the lease gone by reason of failure to drill or pay rental? Is it forfeited in a court of equity? Granting that it would be at law, will not a court of equity say that want of title disabling the lessee from operating, coupled with agreement and conduct of Bunfill to dispense with drilling and paying according to the strict letter of the lease, saves the first lease?
It is assigned for error that the court dismissed the original and amended bills, when incontestably the plaintiffs owned the Sindledecker ninth interest undivided in the tract. The decree adjudicates and declares precisely the interests of those claiming under the first lease and of those claiming under the second, giving to the plaintiffs tlieir full share or interst in the oil and gas as assignees of the Sindledecker heirs’ interest in the oil and gas. The dismissal does not aggrieve the plaintiffs. The decree is final as to these rights of the parties. A reference was made to ascertain what oil had been taken from the land by Miller. Further decree as to the matters involved in the reference could be based on the cross-bill answer, as it is a complete bill for that purpose, not depending, on the dismissed bills. The dismissal of the other bills does not, as suggested with hesitation by counsel, operate to dismiss said answer. Spies v. Avondale, 55 S. E. 464 (60 W. Va. 389), does not support this suggestion. It holds that the dismissal of the original bill carries a cross-bill where its subject matter is only defensive of the original bill. Such is not this case. This answer is as full as a bill, and calls for affirmative relief by way of cancellation of the second lease
Our conclusion is to affirm the decree of the circuit court.
Affirmed.