*1 CORPORATION, Corpora- Delaware SHARPLES tion, Appellant,
Plaintiff vs. COMPANY,
SINCLAIR a Delaware WYOMING OIL Corporation, Respondent.
Defendant 1946; (No. 2332; 29) 19th, (2d) March 167 Pac. *2 Appellant, sub- cause was Plaintiff For the Dines, Holme, Harold D. & Dines mitted on the brief Denver, More, Colorado. Robert E. all of Roberts and Eastland, Texas, Loom- and John U. W. Turner John argument by Wyoming, Mr. Cheyenne, oral Roberts. was Respondent cause
For the Defendant Okolt, Brock, Campbell and on the brief of submitted Colorado, Chey- Denver, Ray Myer, E. Lee of all argument by enne, Wyoming, Lee and Mr. Mr. and oral P. John Akolt.
OPINION *6 Blu,me, Justice. Chief involving and the so-called Howell an action
This is gas Rigdon in North in the oil and interest l/15th Quarter 3, Township 26 Half of the Sec. Southeast Meridian, Principal North, Range in 6th 90 West of the County, Wyoming, located in so- and Sweetwater acquired by interest was Lost Field. The called Soldier August, 1942, Drilling Drayton Company in Oil and Wyoming conveyed Oil it to the Sinclair and was Corporation, Sharpies Company, herein. defendant herein, participate entitled to plaintiff claims that it is Rig- purchase the Howell and the benefits of the may doctrine that one co-tenant under the don interest against an ad- acquire another co-tenant and assert to party. trial court refused The of a third verse title appealed any to this grant relief and it has plaintiff Court. substantially undisputed. herein are
The salient facts starts, according herein involved title to the lands herein, with the Oil agreement parties Good together company, with Sweet- Company. That Company Oil Company the Wertz-Dome and water Oil gave owning lands) a companies other (the two latter 23, Production Com- 1923, the Texas March to lease on developing for and the land oil purpose of pany for the granted 17, 1924, to the same gas. October On Rigdon interest L. a and C. D. J. Howell l/15th payable might due which become amounts and all Production Com- with the Texas the contract under the land involved appertained to pany in so far as 1924, controversy. the Good Oil On October this granted reciting Howell it had to mentioned, conveyed as above interest 1/15 Company. all other its interests to Sweetwater Oil 31, 1927, On December the Texas Production Com- considering pany, evidently given the lease it of no value, released all of its interests to the Sweetwater Oil Company. July 28,1931, Drayton On B. F. claimed and against property filed a lien the sum about 310,000.00. assigned This claim was Drilling Company, Oil and and a sheriff’s deed was exe- company cuted the latter on pur- December porting convey the interests of the Sweetwater Oil Company. Higby It one seems D. and H. R. L. Nutting property, claimed an interest the same they conveyed they Dray- whatever had to Drilling Company. ton Oil In the meantime oil produced upper was from the sands and was sold to the herein, Wyoming Company, defendant the Sinclair property dispute but inasmuch as the title was in *7 proceeds it did not at that time distribute the from the 27, 1937, Drayton sale of the oil. November On the Oil Drilling Company and the and Sweetwater Oil Com- pany agreement convey entered into an all of their Brimmer, trustee, agreeing interests to C. A. and convey he in turn should to the Sweetwater Oil Com- pany an undivided one-half interest in and all the oil gas might produced and and other minerals which gas bearing lying oil from the and sands below Da- sands, convey Drayton kota and Lakota and to Drilling Company all Oil and of the remainder by Deeds to effect were interests. this executed the re- Brimmer, spective trustee, to C. A. and the lat- turn, 1938, July 7, quitclaim ter on executed in deeds to respective parties agree- the. in accordance with their March D. J. and ment. On Howell Etta M. (assignee Rigdon, Rigdon) brought L. a C. suit in against County the District Court of Sweetwater Drilling Company Oil and and the Sweetwater asking Company, they declare Court to had an undivided interest in and to all of the oil and l/15th gas produced in and from the lands involved in this duly joined case. Issues were in the case both de- fendants, 28,1941, and on November the District Court County judgment of Sweetwater entered a in favor of Rigdon, judgment containing Howell and the fol- lowing provisions: “2. That under and virtue of the contract be- Rigdon, D. part,
tween J. Howell and L. on the C. one Company, and the Good Oil the Sweetwater Oil Com- pany organ- Company, and the Wertz-Dome Oil each trust, part, ized under a declaration of on the other Howell, plaintiff, of the all Rigdon, assignor D. J. and L.C. plaintiff, Rigdon, acquired Etta M. in interest gas produced and or either oil from the half North quarter of the North, Range Township Southeast of Section Meridian, Principal 90 West of the 6th County Wyoming, Sweetwater and State and continuing said that full force interest is a interest and is still and effect. acquired by plaintiffs “3. That the interest property specific described is a definite and interest gas, either, land, produced all oil and from said binding said and runs with said land and is upon Company, the said Good Oil Sweetwater Oil Com- pany of Company their, and Wertz-Dome Oil and each their, assigns, successors and and such interest binding upon against and enforceable the defendants Colorado, corporation, Sweetwater Oil a formerly Company, corpor- Sweetwater Oil a Colorado ation, ation, signs. Dayton Drilling Company, corpor- Oil and their, their, and each of successors and as- plaintiffs their, “4. That the said and each of *8 their, assigns successors and are entitled to enforce rights against their under said contract the as said de- their, fendants and and each of their successors and assigns. plaintiff, “5. That the said between contract D. Howell, Rigdon, assignor plaintiff, J. and L. C. 350 Company, the Rigdon, M. Sweetwater Oil Etta Good and the Company Company Oil and the Wertz-Dome Oil and filed for record recorded above mentioned was Register County and Ex-Officio the office of Clerk County, Wyoming, March on Deeds of Sweetwater 107, pages appears in Book and of record County in the office of said Clerk 78 of the records by County, Wyoming, and that reason of Sweetwater chargeable are were and
thereof the said defendants knowledge and of and notice of said contract with full the rights plaintiffs from the date of thereunder recording of contract. such plaintiffs in oil and interest of said “6. That the either, gas, produced described or from the land above the Sweetwater Oil Com- and Wertz-Dome Oil Com- the interest of is l/15th Company pany, Oil Good property pany in said as fixed and measured companies and the the contract between said terms of Colorado, Company, corporation, of Production a Texas as said contract part made a of the con- is set forth and Rigdon and Howell and C. L. between said D. J. tract Company Company, and Sweetwater Oil said Good Oil Wertz-Dome of records water Company appears and as said contract pages at 73 to 78 thereof in the record in Book 107 County said in the office of Clerk of Sweet- County, Wyoming, which contract with and said Company part parcel and Production the Texas Rigdon, D. J. Howell and L. on contract between C. said one Company, part, and said Sweetwater Oil Good Oil Company, on the other and Wertz-Dome Oil rights plaintiffs ,and and interest of said part the premises described be fixed above should be as herein set forth”. of this court to decree CONSIDERED, “WHEREUPON, IT ORDERED IS plaintiffs, D. Howell that the J. AND DECREED Etta M. ceased, assignee Rigdon, Rigdon, L. now de- of C. their, heirs, executors, their, and each of assigns, of and have are owners administrators and and permanent interest in and are entitled have a receive in all minerals an undivided l/15th gas, either, rights, including dis- oil and mineral covered of North, produced from the North Half Township quarter of Section Southeast
351 Meridian, Principal Range situate of 6th 90 West inter- County, Wyoming, as said in Sweetwater l/15th by dated certain contract defined limited and est is by 1924, and 17, entered into and made and October Company, the Oil the Good Oil Sweetwater between Company, each Company, and the Wertz-Dome trust, parties organized of under declaration Rigdon, parties L. part, and D. J. Howell and C. first the second appears in part, of record as said contract pages of Sweet- at 73 to records Book 107 County County, Wyoming, in the office of the water county, Register of said of Deeds and Ex-Officio Clerk rights plaintiffs and in said have existed and such plaintiff, M. in said Etta predecessors interest of contract, making of and said Rigdon, rights said since described land. run with the above have CONSIDERED, ORDERED “IT IS FURTHER plain- and that the title interest of AND DECREED hereby defined fixed as tiffs herein are established and contract, plaintiffs by to have the said are entitled said and that from defendants and and receive from the said claiming through persons by, them any or under and all gas, and or share and interest all oil the aforesaid land, plain- either, produced and that the said from said rights any gas, and may in and to oil tiffs enforce their either, being which produced now from said land or or may produced which been therefrom or heretofore has therefrom, pro- any produced manner hereafter by and the full extent laws state to vided permitted by and of this if this state the said defendants laws of their, assigns their, any either successors or or neglect fail, pay to said or refuse to account over gas, or plaintiffs interest and all oil and their either, produced hereinbefore described.” from said land 1941, 7, meantime, In the while the above on June pending, mentioned suit was the Sweetwater Oil Com- George pany agreement into with E. Brim- entered right, title, prop- and to the mer its mentioned, erty on or claimed as above owned conveying date a deed him this the same executed deed, right. however, March This was recorded until Subsequent supplemental June 1943. agreements were executed the Sweetwater Oil Com- pany George Brimmer, E. terms which are not material herein. orOn about December 9, 1942, George agreement E. Brimmer in turn entered into an Sharpies Corporation, with the plaintiff herein, grant *10 rights to the latter January 19, 1943, all of his and on quitclaim executed plaintiff deed to the therefor. Thereby Sharpies Corporation acquired the all of the former interests of the Company Sweetwater Oil in and property to the above mentioned. appeal
An was taken from the Howell and jointly by suit above mentioned to court this the Sweet- Company Drayton Drilling water Oil and the and Oil Company. meantime, Lee, acting Mr. In the on behalf Rigdon, negotiations Howell and entered into for the purpose selling all of their interests in and to the Company land herein The involved. Oil Sweetwater interested, appear August 27, did but to be on conveyed Drayton these were the interests to Oil Drilling Company and for the sum of and $10,000.00, September Drayton Drilling 12, 1942, on the Oil Company conveyed interests, including in turn all of its Rigdon, interest of Howell Sinclair Wyoming Company, herein. defendant The con- Oil Drayton Drilling paid to the Com- Oil sideration paid pany was the sum of to be in cash in §50,000.00, installments, various and the sum of §75,000.00 out of produced the oil from that, the land. In addition to Drayton Drilling Company Oil and retained a three percent royalty in and to the land. In 1939 the Sinclair Wyoming Company money Oil distributed the accu- proceeds mulated on account of the from the sale of oil parties, except accruing to the interested the amount on account of the interest claimed Howell and Rigdon, which in fall of approxi- amounted to mately §15,000.00. Drilling Oil and Com- pany Wyoming directed the Company Sinclair Oil to 810,000.00 pay purchase price above mentioned out accumulated, accordingly the fund so which was Subsequently 16, 1942, done. about November quitclaimed Company Sweetwater Oil all of its inter- Wyoming Company, subject est Sinclair Oil rights George E. Brimmer men- as hereinbefore 1, 1942, Thereupon, tioned. about December the Sin- Wyoming clair filed a motion in this appeal court Howell for the dismissal of the Higdon appeal dismissed until March suit. The was not 1943. The interested received notice of the pendency dismiss, Turner, of the motion to and John herein, Sharpies Corporation, plaintiff counsel for the Cheyenne January, came determine matter, whether or not to intervene but concluded not to do so because he considered it doubtful that the judgment District Court that suit would be reversed. Sharpies acquired Corporation
After the it interests *11 George upon from E. the de- Brimmer it made demand purchase participate the fendant herein in the of to refused, Higdon interest, defendant Howell and but the 9, 1943, in the so on this action October it commenced compel County the to District of Court Sweetwater permit participate defendant to it purchase to in that in so far as the lower sands in the land involved are concerned. Some other facts will be mentioned here- after. discussing questions
Before the main involved here- points in we shall consider some which seem to be of importance minor herein.
I. plaintiff places
Counsel for in several of their brief validity judgment disclaim attack on the of the by Rig- rendered the District in Court the Howell and they places don suit heretofore mentioned. In other validity upon seem to to a want throw doubt the of that judgment plaintiff far In order so as is concerned. to clarify may point to call the that be well attention to provisions 89-825, which Sec. of of Eev. Statutes served, provides the has or that “When summons been charge made, publication pending, the as to action is so persons pendency; while third with notice of its persons pending, acquired by can third no interest be thereof, against subject plaintiff’s in the matter as persons In is stated title”. 34 C. J. 1009-1012 it by the privity parties with suit are bound judgment parties thereto, as same and that persons in are those “whose succession to the privity rights thereby adjudicated property of affected were through derived or under or other one action, subsequent and accrued the commence- So, purposes ment of that for the suit”. at least this judgment opinion, in the How- we shall assume that Rigdon binding upon plaintiff here- ell and suit is course, in, correctly although, of stated counsel as plaintiff, it does affect the interest for the in that suit inter se. defendants plaintiff doubt the extent also throw on Counsel for Rigdon adjudicated the Howell and interest judgment case on account of statement the terms “as fixed measured the interest is companies said the contract between and the Texas Company”. gave It certain Production that the court permanent in the oil Howell gas controversy, in and under the land whether produced therefrom or theretofore thereafter produced, fixed and that interest was October *12 their to the that relation other owners so fixed date. in the land was as of that Whether or not ques- limited not in is somewhat the l/15th case, at- plaintiff is for the reason that tion in this purchase Howell tempting participate in the of the interest, may Rigdon be. that interest whatever II. charges plaintiff with case the defendant this surreptitious, conduct.
furtive and if not fraudulent evidently against plaintiff in The trial court ruled nothing matters, in the record that these and there is justify holding in its would that the court,erred us may holding not be in that connection. In order we thought matters these that we not examined have they though briefly, we doubt shall mention them any particular bearing plaintiff have in this case. The states its brief in this court: “Sinclair’s final act was (we again surreptitious word) use this to dismiss referring appeal”, appeal Howell Rigdon case to this court. far the record before So justification us indicates there seems to be no for this charge. to dis- Defendant filed a motion in this court given op- appeal. Notice of the motion was miss posing represented the interests counsel of record who in the land involved which a matter of record. We were required not certain that more than that was are parties in- in order fair to the other defendant to be Company Presumably, terested. the Sweetwater convey would notice to its successor in interest. aAs fact, plaintiff bought matter of when the the interest formerly held the Sweetwater Oil its coun- investigate Cheyenne to sel carne to the matter and de- he would termined that not intervene. Had he done so appeal probably would been have dismissed so that the ultimate dismissal thereof was due at least as plaintiff defendant. much to as to charges pressure Plaintiff the defendant with undue acquiring Drilling influence in Oil and Company interests and the Howell and in- charge presume upon that this is made terest. We *13 theory Drayton that defendant caused the Oil and Drilling Company violate and its relation trust any confidence —if existed —with the Sweetwater Oil Company; im- otherwise the matter would seem to be material; im- and it would in event seem to be material, if and confidence was no relation of trust Drayton and Drill- violated. fail to find that Oil We ing Company any compulsion was under by reason of any acts of the defendant. So far as the record shows company entirely voluntarily. that acted And if that upon is correct fact plaintiff, which laid stress is that buy the defendant did not wish to interest company acquired that if unless also the Howell and Eigdon interest, pointless. seems to be Part charge upon of undue influence is based the fact that kept purchase money the defendant of the oil that came from the land in The escrow. record shows that dispute; the title was in that in 1939 the defendant dis- money tributed the which was due to the Sweetwater Drilling Company Drayton Oil and and Oil Com- ; pany informed of that this was done soon after it was agreement the fact that an had been reached between kept companies. in escrow these It still l/15th Eigdon purchase money by and of the Howell reason amounted, money fall of interest. That in the approximately §15,000.00. that that In view of the fact dispute, could, course, interest was in the defendant nothing except keep do money else in escrow until ownership finally of that interest was determined. plaintiff thing exactly The would have done the same under same circumstances. plaintiff paid intimates that the defendant noth- Eigdon
ing interest, the Howell in view of the §10,000.00 paid Eigdon fact Howell and which came out of the escrow fund amounted to over §15,000.00. superficial That view to take the mat- is part price cost of of the total ter. The interest paid Drilling Company, advantageous bargain whether de- defendant made an pends paid on whether it little much too or too to that company. charged purchased It is that the defendant secretly. the Howell That did Dray- negotiation not disclose with the terms of the Drilling All ton Oil and is doubtless correct. *14 seem, the however, of in interest to have had negotiation. notice of the Mr. representing Lee, Rigdon right, Howell and made no secret of fact attempting it, that he was to sell or settle it. Mr. Ma- zulla, secretary-treasurer of the Sweetwater Oil Com- pany, seems to have only received notice of that fact not Lee, from Mr. but also from C. A. Brimmer and Mr. Geiger, represented rights who of Drilling Company, little, apparently but he if took any, interest in the matter until after the sale was actually made.
III. plaintiff herein contends that is entitled to
share in the purchase benefit of the of the Howell and general is, going interest. The rule without greater detail, into acquires if co-tenant one outstanding interest of paramount, an ad- hostile or may, time, verse title he within a reasonable be com- pelled, upon reimbursement, parti- let co-tenant his cipate Binning purchase. vs. in the benefits his Miller, Wyo. 478, 64; R. A. L. 102 Pac. 2d Note in 54 874, seq.; 1535, seq.; et Note L. et Free- in 85 A. R. Cotenancy, man Ed., on 154, 2d seq. Sec. et. Plaintiff foregoing claims that ease this falls within the rule. On Cyc. 53, the other hand it is stated in 38 as follows: “Al- though may buy tenant in common not an outstand- ing paramount cotenant, yet title so as to oust his there why may buy is no reason he independent not in- common, terest of purchase another tenant in and a inure does not one cotenant of the interest another remaining in common”. to the benefit all the tenants 462, preventing one “The rule In 62 C. J. it is stated: outstanding buying title an tenant in common from com- tenant apply purchase one does cotenant”, Free- etc. mon of the in title of his interest 165,states: reas- “The Cotenancy, supra, man on Sec. purchasing as- prevent from ons which a cotenant equal, apply serting title, with outstanding do not an pur- against his generally any,. force not with cotenants, chasing sale whether title his voluntary Hogan involuntary”. Utter, In vs. 175 N. syllabus C. E. 95 S. follows: “A ten- is as buys ant in common who another tenant mortgage acquire in common sold under does not thus outstanding title, prevents principle and the which doing application”. In First Na- him from so has no Bissell, tional Bank vs. 4 Fed. the court stated part that while “bound to maintain all the tenants were title, liberty purchase from the common each was at *15 stranger might pur- the a other in the same manner as Kennedy, any them, v. all of Alexander chase from Cases, that a claimed 3 380. It has never been Grant’s purchase by the interest of another one co-tenant of retain their would enure the benefit of all who should nothing interest, certainly the relations there is Baird vs. support In of doctrine”. owners to that such Heirs, 524, 534, “The court stated: 21 N. C. the Baird’s com- any a tenant decision that court is not aware of not, pur- may cannot, any why he nor of reason mon legal of fellow. Their the interest his estates are chase being several; only the union between them that of They possession. hold in- trust for each other. do not only, possession eo nomine rule of one The is t^ie other, posses- a possession of the and that is such the companion. his But never bar will therefore sion from one between them is such as forbid relation 359 principle other, upon on which purchasing from the dealings jealousy regards Equity with a Court in a each other persons toward who stand between Murray Minn. Murray 159 capacity”. vs. fiduciary In cotenant 111, that one 307, contended 198 N. it was W. of an the interest sale purchase at execution could not The cotenant. court said: other relationship between trust confidential or “The interest, community arising cotenants, did not their from the un purchasing from preclude themof ef sale upon execution of another interest divided only pre relationship fecting only. interest such Such the com hostile to purchase interest of an vents the mon W. 455, Hedderly, N. In 32 21 title. Oliver v. Minn. 478, adopted general we rule that one cotenant cannot assert own title the common his benefit through property purchase paramount a a interest. property Here title to the common is not asserted against judgment one cotenant the others. execution sale did not title. No co- aifect the common forbidden, cotenancy, tenant was because of his from asserting buying up title undivided interest judgment on which alone the rested”. Harrison, Similar in is effect Snell vs. 104 Mo. 152; (Tex.
S. App.) 175 W. MacDonald vs. Follett Civ. S. 2d 674. W. quite foregoing apparent
It from the cases purchase by an- one co-tenant relationship permitted. fiduciary A other co-tenant is parties are not arise from fact that does the mere may ordinarily common And tenant co-tenants. one respecting pro- deal with co-tenant the common Byrnes, perty. Pure vs. 57 N. Ill. footing upon E. 356. stands a different 2d Such case purchases an outstand- in which a co-tenant from one *16 plaintiff please to ing title for paramount or as counsel point it, purchases he a title. shall hostile We call where present- difference fundamental reason out the 360
Iy,
in
and
that connection shall cite other cases which
already
line
are in
with the cases
cited.
If then the
Rigdon
Howell and
interest can be said to be a co-
interest,
tenant’s
it follows
the claim herein of the
plaintiff cannot
be sustained unless
can show some
special
out
circumstances which take the case
of the
general
Rigdon
rule.
court in
Howell and
case
mentioned, granted
perma-
above
to them undivided
gas running
nent interest
the land.
in the oil and
with
plaintiff
brief,
Counsel for
assert: “Certain
in their
Rigdon
it is that
and
decree did not establish
co-tenancy
Howell
a
interest as
interest as was stated
by Sinclair’s counsel in the lower court. The decree
is,
does
even mention co-tenants”. And certain it
think,
we
phraseology,
to use counsel’s
that the Howell
and
outstanding paramount
interest was not an
interest,
fully
as will be more
shown hereafter. Hence
if
co-tenancy interest,
that interest
not a
it is hard
Mining
to know
Rights,
what
call it. In Morrisons’
Edition, 415,
15th
per-
it is stated that “Two more
owning
mining ground
sons
undivided
are
interests
tenants
common”. The same statement
is made in
Phillips
Company,
vs. Homestake Consol. Placer Mines
51 Nev.
361 holding in the gas rights “Under the court stated: A.) (C. 2 F v. Allen C. Co. of Prairie Oil Gas & case 1389, action parties to this 566, (2d) A. L. R. 40 rights, gas in the oil and in common were tenants in apply than appears to in such case no different rule a whole”. land as in the interests where each own one Corporation, 167 Petroleum Earp In vs. Mid-Continent involving 188, 86, 855, L. also A. R. Pac. 2d 91 Okl. rights, court gas in oil an undivided interest por- of undivided the owners “It conceded that said: is are estate rights real gas and under in oil and tions of Martin, 3 Calif. vs. In in common”. Callahan tenants court, 788, 796, L. 2d 101 A. R. 2d 43 Pac. gas considering percent in oil and an interest of three assignee rights view that an of stated: “We are of the royalty in common in effect a a interest becomes tenant assignor in the oil an interest with who retains his assignees percentage inter- of rights, and with other had, by assignor ests, right virtue which the land, to drill for ownership fee in the his 17; Pure Note produce 14 Am. Jur. oil”. See also Foss, supra. Byrnes, In Bissell vs. Company vs. min- infra, interest treated an undivided the court rights It seems ing a co-tenant. as an interest of Rigdon interest. Howell and treat we should so however, claim further plaintiff, Counsel co-tenant buy of another interest can one co-tenant a co-tenant’s “conceded” only interest is while that one disputed co-tenants interest, that while is but permitting without purchase it cannot of them They state: thereof. participate in the benefit other legal any hostility dependent question on is “The join defendants in a lawsuit two refinements. When third, hostility fighting together exists the claim of a Regardless ultimately wins of who status. as a visible appellate until the last to the other is adverse each side rehearing decree and time to seek entered its court has expired”. exists, course, has There a mental hostil- ity every dispute litigation, but whether it does or can affect the actual a status of title is a different easy enough matter. .get It up dispute, liti- or gation whatever, in reference to and we prepared are not accept dispute existence such litigation or as a criterion whether not the title *18 holding person attacked is that of a co-tenant or of a outstanding an adverse or within the hostile interest meaning of the rules above have mentioned. Counsel any holding not cited us to case with their contention. They diligently. doubtless have searched We have done likewise, any and have holding. not found case so One thing which, perhaps, has led to some confusion is the uniformity terminology lack of stating in in what can- bought by against not be a co-tenant as another. Some authorities upon use the term claim, “hostile” which plaintiff counsel for the have seized. Other authorities “outstanding use the “outstanding terms hostile” or ad- “adversary” interest; 120; verse” or 14 see Am. Jur. use others the term “adverse” interest. In Perkins vs. Johnson, 498, 160 400, 401, 178 Tenn. S. W. 2d the court speaks “outstanding of an title or overhead claim”. Brooks, Wallace vs. 194 Okl. 147 Pac. 2d speaks noted, Cyc. of a “distinct” 38 title.' As above speaks “outstanding title”, which, paramount an perhaps, any terminology, clearer is is than other generally they what the state that courts mean when buy a co-tenant cannot the of another as against Jersey his co-tenant. The New court Weller thing Rolason, Eq. 13, expressed vs. the same N. J. when it persons stated: “Where having two or more an imperfect title, interest in lands claim under an and one buys oustanding title, them in the purchase such will benefit, upon enure to common contribution made repay purchase money”. to (Italics supplied). In bar, the case at the title of the Sweetwater Oil Com- pany by imperfect was not reasons of the Howell and Rigdon merely interest; claim- reduced 15/15th way 14/15th, ed to and that was not in 14/15th adversely affected interest. the Howell
We funda- indicated above that there must some why, generally speaking least, mental one reason at permitted buy co- co-tenant is the interest of another restriction, which an tenant without while cases oustanding bought, paramount title other co-tenants is ordinarily right purchase. participate have in the naturally suggested What is reason? The one the mind that in one case third co-tenant is not injured, while the other he is. Counsel for the de- uniformly approach ques- fendant state that courts viewpoint tion from the as whether or not such claim prejudices “affects, diminishes, or undermines the co- tenancy Generally speaking least, interest”. at authorities seem to bear this out statement. Courts ordinarily permit acquire will not one co-tenant to a tax title, property foreclosure, title on incumbrance giving right without other co-tenants *19 participate seq. to therein. 14 Jur. 123 In such Am. et. outstanding paramount, super- or cases there exists an ior right by acquisition title, and the one co- or thereof necessarily injure prejudice or other tenant would 874, or 54 that others. In note to A. L. R. is stated against buy others, an out- one co-tenant cannot standing adversary the common estate claim to it for his assert exclusive benefit to the injury pre- or injury prejudice judice co-owners. Thus the his Upon to the made the latter is criterion. criterion that denying right number are based a of decisions to purchase participate by a in a co-tenant. In Frank vs. 181, Frank, 137 151, 305 Ill. N. E. one co-tenant of the bought the reversion subject. life estate to which the land was participate other
The reversioners wanted to purchase. right The denied in court on the 364 co-ten- nothing other from the
ground
taken
was
part:
court said
ants. The
entitled
that he is
contends
“Appellee by cross-error
consideration,
one-fifth
on contribution
share
by
Emma Frank to
life
deeded
in the
estate
in common
that tenants
children. The rule is
four
other
stand in such confidential
regard
an-
to one
relation in
permitted,
in
to
that one of them is
other’s interest
acquire
property
equity,
an
in the
hostile
182,
Ramberg Wahlstrom, 140 Ill.
that of the other.
v.
727,
227;
Cooper,
Rep.
29 N. E.
33 Am.
Bracken v.
St.
however,
apply,
140 Ill. N. E. London Extension Ellis, 134 Fed. vs. 2d 405. interesting Foss, Bissell An case is vs. 114 U. S. anything L. and if Ed. heretofore said is not entirely dissipate clear, that case will all doubt. *20 far in that case in so as material here are sub- facts Bissell, stantially Foss and Hunter and as follows: persons some called the Missourians were co-owners of a mine in Colorado. The Missourians wanted to sell their undivided interest in the mine. Bissell and Foss had a conversation to the effect that Foss should at- tempt buy to the interest of the Missourians for the Bissell, benefit of They Foss and Hunter. were not able pecuniary to do so for some Then reasons. Foss agreed and Hunter purchase between themselves to Missourians, pur- Foss to undertake to property. furnishing chase done, That was Hunter money most necessary to purchase make the §15,000.00. which was for Thereafter Bissell wanted participate to upon the sale and relied the rule that purchase a co-tenant cannot outstanding title or en- upon joint cumbrance estate for his own benefit. The court, mentioning after denying right that rule and Bissell, stated as follows: apply “But this rule cannot They to Hunter purchased and Foss. outstanding no title prejudice or incumbrance to the of the other tenant They in common. any did what tenant in common with good might do, namely, entire purchased faith the in- terest of consulting some of their co-tenants without they purchased the others. The title which of Mis- antagonistic sourians was not or hostile the title purchase degree of Bissell. Their did not in tend injure damage just his interest. was His share rights purchase, valuable after as before the and his purchase were the same. In such a no trust or confi- query dence is violated”. The also arose that case Foss, having as to whether or not had the conversation mentioned, compelled with Bissell as above should be' participate purchase let Bissell in the in so far as his interest was concerned. The point: court said on that, circumstances, “It cannot be denied under the obligation there was an on Foss to inform Bissell of plan making failure of their before another with a person. legal obligation third But was not capable *21 366 externo, only natural but a ob- in foro
of enforcement Story ligation disposed conscientias. foro to be obligations was Jur., which Eq. those 2. was one of It § party, the but binding and conscience on the honor enforced of subj not to be a suit and not the ect of one in a subject enforced and not to be of a suit one not the equity”. either lhw or court of special unless It would seem that some circumstances exist, hereafter, matter which will be discussed the against foregoing authorities are conclusive the claim plaintiff They by clearly case. this made show the title of a co-tenant stands on a different foot- that outstanding paramount ing from an or hostile title. injured rights w,ay are not in Plaintiff’s ac- Rigdon quisition by defendant of the Howell and in- make difference to it whether that in- terest. It can no by Howell and or owned is owned terest is still may advantage it In fact it be of defendant. it, since it now has to deal defendant now owns that the Applying only party three. instead of two or with one mentioned, injury above it becomes the criterion quite what a weak basis rests contention clear on litigated an out- disputed interest becomes that a litigation dispute standing Mere interest. or hostile injures when it into one that an interest turn cannot litiga- dispute injured before the not one was interest, change the' nature of the tion, can nor footing the interest of as on the same which stood was predecessors, into one that is or plaintiff and its Mining of Franklin superior. The case paramount or O’Brien, 43 from Pac. Colo. vs. length, way in con- quoted in no at plaintiff has which ap- foregoing case it In that authorities. with flict claim, bought Franklin the Dr. co-tenant pears that one stated, outstanding para- which, was an the court as the claim of the co-tenants superior claim to mount and rightly stated, case, therefore court and the in that permit “but a tenant in common the Franklin so: conflicting mining buy title a senior claim junior location, against his cotenant in the and assert cotenant; for, certainly prejudice claim, if would his done, title the latter as to con- could this extinguish- ground effectually flicting would be as thus junior were ob- patent if location itself ed tained, intent, by the tenant and success- hostile with against accord- fully case cotenant”. asserted *22 Binning in line with the case ingly, one of those cases is mentioned. above
IV. that it not
Plaintiff’s claim herein is in substance is has, only to that is en- entitled hold what it but it also by gain participating a titled to windfall as it were — —a Rigdon purchase the of Howell and in benefit the nothing interest, although earn that it has to done by windfall, injured though any way it in is foregoing acquired in- the the fact that the defendant plaintiff, its counsel the so terest. That windfall is due mentioned, contend, heretofore from the reasons aside in this special exist circumstances because facts and and confidence of trust which created a relation case Company and the between Sweetwater Oil either Drilling of which Company, account on Oil and prevented acquiring parties these were from of Rigdon exclusively Howell and for its bene- to out fit. That claimed arise fact that when is agreed 27, 1937, convey they on November their re- Brimmer, trustee, spective to C. A. interests was any alleged agreed “As to claim of as follows: Etta G. Howell, Rigdon David J. Sweetwater Oil Com- place hereby agree pany furnish and of record does tending possession in its papers instruments all rights, or parties inter- have no claims that said show rights property describ- hereinabove est or to That ed”. relation of trust confidence also claim- ed joint- to have out arisen of the fact that these ly a suit; filed demurrer in the Howell and that they filed jointly answers prosecuted therein and appeal to say this court. Counsel that “A trust was thereby prevented acquisition created which such They title whatever its nature”. claim to have a exactly point case Company J. United N. R. & C. vs. Company, (N. Ch.) Consolidated Fruit Jar J. case, stating Atl. 46. The facts in that without all of details, substantially were as follows: The lands in- Alpheus volved had case all been owned one time, Freeman, who was at dead and his interests Mary then were owned his heirs. T. Clark was one expected Pennsylvania these heirs. It was that the acquire right-of- Railroad a would need to way anticipa- over In these lands in near future. acquire tion of that fact Smith and set Welsh out by Mary they title to the T. land. In were aided assistance, They, Clark and her with such husband. acquired many of the heirs number interests from Alpheus although acquire the they Freeman did not Mary particular interest of T. tract, *23 Clark. One called C, only special herein, Tract the one of had possession Howell, been the in of one adverse to the He, too, Freeman interests. was dead at that time they acquired his heirs claimed that had title thereto by possession. conveyed adverse These heirs that tract $2,000.00. to Smith and the Welsh for consideration of right-of-way A over the tract was condemned and the $3,676.21 question sum of was awarded therefor. The not, facts, Mary was whether or under these T. Clark participate and her husband should in benefit of the purchase the the Howell from heirs. The court held that while the title of Howell heirs did seem assuming good, yet, good, very be that it was the Clarks participate pur- in were entitled to the benefit of that they chase, which of the fact of assistance view It thus given as noted. and Welsh above had to Smith altogether were in that appears that the facts case The title of in the case at bar. different from facts all, heirs, any an at was out- title Howell if it was title, standing superior and that case paramount and hold that accordingly which with those cases is line outstanding superior cannot be paramount or title exclusive benefit. by for his one co-tenant claimed case, point herein. accordingly, not in 27, 1937,
By of November the contract the Sweet- Company papers was to furnish certain show- water Higdon ing had in the that Howell no interest land. any evidently They papers prov- did not furnish which papers If it did not furnish the to be conclusive. ed may Drilling agreed, it be that Oil and it might a breach of and confidence claim trust part, but we cannot see that on the former’s reverse fact, any we fail to see be true. In connection should furnishing papers purchase these and the of between Higdon About all that can Howell and interest. it in line with claim it is that was said about sub- Higdon no sequently made that Howell had inter- position by companies taken land. The both est in the by Rigdon was, subsequent Howell and of suit in the course, position which would natural be taken like parties under circumstances. So far as other nothing there was which would appears the record withdrawing party prohibited from from either have According judgment position then taken. position Court the was finally the District rendered that, wrongfully asked declare taken. We are thus protec- gain, purpose purpose not for for the tion, confidence be en- relationship trust and should prov- existed, grew forced, out of which if which acts wrong judgment the Dis- ultimately in the to be ed sort, course, appears Nothing *24 of that trict Court. 370 case,
the Jersey supra. New Furthermore, we do not similarity see much attempt away between an to take property $10,000.00 of the value of compensa- without tion, purchase and the of it $10,000.00. for the sum gain same, While the property aim—to the the the —is employed totally are methods so different that can- purpose not buying be said that- property joint lawsuit, was included effort to defeat the or anything that purchase in connection with the was in contemplation parties. That, least, of the at would specific seem true to be in the absence of a contract or understanding effect, appear which not does agreement But case. even if there had been such understanding or there seems to be some doubt as to binding whether not would upon have been parties. Foss, supra. agree- Bissell vs. See That the joint ments between the and their action did contemplate any purchase property is borne by subsequent out events. The Sweetwater Oil Com- pany given opportunity was the same as the Drilling Company buy property, but gave Secretary-Treasurer company of the former scant thereto, consideration and seems to have taken little actually until matter after the sale was made. Finding estoppel
We do not find basis for herein. record, judgment no error in the reversible trial court should be is so ordered. affirmed. It J., Kimball, Riner, concur. J.
ON PETITION FOR REHEARING TERM,
APRIL 7th, Denied, May Petition (168 565) P. 2d. *25 support petition
In there Dines was brief More, Holme, all and Robert E.
& Harold D. Roberts Eastland, Colorado, John Turner of Denver, W. Wyoming. Texas, Cheyenne, and John U. Loomis *26 ON OPINION REHEARING Blu,me, Chief Justice. by petition rehearing
A
filed herein
has been
sixty-
brief,
appellant, Sharpies Corporation.
In its
hearing
printed pages,
original
this
five
at the
filed
case,
appellant
page
devoted
little over half of a
claiming
estoppel,
agree-
the doctrine of
that
November,
entered
ment
into between the
parties partitioned
among
property
them-
selves,
estopped
partitioner
and that each
to assert
anything
in fact
than
less
an undivided one-half
conveyed
They only
interest was
Brimmer.
cited
relating
briefly
C. J. 282
we
Partition. We held
estoppel
could see no
in the case under the
element
*27
theory presented
ac-
at that
'In the brief
to us
time.
companying
rehearing,
petition
appellant
the
for a
the
deed, claiming
by
upon
estoppel
relies
the
of
doctrine
in
Brimmer,
trustee,
view the
that
fact
C. A.
conveyed
Company
the
to
Sweetwater Oil
a one-half
the
question,
interest
in
lower
in
sands
the land
one-
interest,
half of the Howell and
the
1/15th
purchased by
Drayton
Drilling
latter
the
and
Oil
Com-
pany subsequently
$10,000,
doc-
inured under the
estoppel by
trine
deed to the benefit of the Sweet-
Company.
rely upon
water Oil
the
Counsel
rule stated
610-612,
in 19
Jur.
and Balch
al.
Am.
et
vs. Arnold et
al.,
Wyo.
urged upon
point
9
374 entirely theory point;
us seems to be an new at least the held is different. We have in a number of cases that any point court this need not consider raised the at original hearing. Ludvigsen, 230, 257, Wyo. Bank vs. 994; Bros., Wyo. 517, 56 Pac. Brewer vs. Folsom concluded, 7 Pac. 2d and other We have cases. however, it is best to consider the doctrine now ad- necessary vanced counsel in far it is herein. so as pleading pass question of and shall over the con- We Annotations, on sider merits the contention. 345; subject R. R. 144 A. will be found in 58 A. L. L. 554; 3 A. L. R. 945-955. upon
The deed relied in case is a deed made this Brimmer, trustee, A. to Oil Com- as the Sweetwater C. 7, 1938, pany, July on as to the one half-interest original gas in the and in the lower sands oil mentioned day opinion. the same A deed was on similar executed Drilling Company, to the re- Drayton Oil and maining question. These deeds the land in No- into on pursuant a contract entered were made Drilling and Oil 1937, between vember Company. That and the Sweetwater necessary mentioned is, agreement is in so far as here, figures as follows: and words parties “WHEREAS, have heretofore hereto des- touching property hereinafter made claims cribed property produced from said together certain oil with upon proceeds the sale of received oil, of the and intention said and it is thé desire accounts, adjust, settle, compromise hereto to debts, claims, disputes touching demands, and matters relating property. said “NOW, THEREFORE, consideration said agreements premises and the mutual covenants and parties hereto, agreed covenanted as fol- lows, to-wit: property agreement “The referred to in this is des- Quarter cribed as the Half North of the Southeast *28 Twenty- Township (3), Three (N^SE%) of Section the Sixth North, Range Ninety (90) (26) West six * * Meridian, Principal *. convey agrees to to Oil “The Sweetwater hereto, all of its Brimmer, parties A. trustee of C. property above right, in and to title and interest * * mentioned, *. described and party of Drayton Drilling Company, “The and Oil convey A. hereby agree part, C. the first does mentioned, Brimmer, all parties herein trustee for the property right, and to the of its title and interest * * described, herein above *. alleged and “And Etta G. claims of as. Howell, Company does David J. hereby agree Oil Sweetwater papers place of record all to furnish and tending that possession to show in its and instruments said rights, in or or interests claims parties no have rights described. property herein above parties hereto agreed by and between “It is hereto, upon Brimmer, parties trustee of the A. C. papers and instru- furnishing delivery and the ments mentioned, shall conveyance herein above of con- trustee instruments as said deliver execute veyance follows: hereto as corporation, an Company, a Oil “To Sweetwater oil, gas all of the in and to undivided one-half interest and other minerals oil may produced from the be and La- gas bearing lying the Dakota below sands the South- upon Half of situated the North kota sands east Quarter (3), Town- Three (N^SÉ^i) Section Range Ninety (90) North, West (26) Twenty-six ship * *M., *. P. of the Sixth corp- Company, Drilling “To one- conveyance an undivided oration, half a deed of oil, gas min- other in and to all gas bear- from the oil and may produced erals that Lakota sands sit- lying Dakota and ing below the sands Quarter Half of the Southeast upon North uted Twenty- Township (3), Three (N%SE}4) of Section Range Ninety (90) North, of the 6th West (26) six P * *M., *29 376 Arnold, al., supra,
It was said in Balch et al. vs.
et.
such,
conveyance can,
convey any
any
that no
to
title
property
grantor;
possessed by
then
if it
to
the
is
operate
by way
upon
acquired property
after
it must be
estoppel.
appellant recognizes
of
that a
The
the rule
quit-claim
by
give
estoppel
mere
deed
rise
cannot
warranties,
repre-
deed in the
or
absence of
covenants
claim-
sentations.
But it is
See 19 Am.
Jur.
to 618.
question
quitclaim
ed
the
than a
deed
more
actually conveys
in the
deed and
a
interest
one-half
question,
lower
particularly
sands of the
land
reason of the habendum clause. The instrument
is nam-
“Quit-Claim
provides
ed
Deed’'.
It
“that
the said
party of the first part, for and in consideration of the
($1.00)
of
Dollar
sum One
and
and
valu-
other
no/100
consideration,
money
able
lawful
of the United States
America,
paid by
party
him in hand
the
of the
part,
ensealing
delivery
second
at
before the
and
presents,
receipt
hereby
these
whereof is
confessed
acknowledged,
remised,
quit-
and
has
released and
claimed,
remise,
presents
these
release and
does
quit-claim,
part
party
unto the said
of the second
assigns, forever,
to its successors and
an undivided
oil, gas
all
other
one-half
and to
of the
gas
may
produced
minerals that
from
oil
bearing
lying
the Dakota and Lakota sands
sands
below
Quarter
upon
situated
Half
Southeast
North
Twenty-
(NI4SE14)
(3), Township
of Section Three
(26) North, Range Ninety
six
(90) West of the Sixth
Principal Meridian”. The habendum clause in the deed
singular
reads as follows: “To have and to hold all and
together
premises
the above mentioned and described
appurtenances,
with
party
unto
said
of the second
part,
assigns
his heirs and
forever.” The
contains
deed
warranties,
representations
no
no covenants and
and no
kind as
the amount of interest which the
grantor
property.
had in
deed,
with the doctrine
in connection
A similar
deed,
estoppel by
in the case Gibson
considered
was
case
Chouteau,
al.,
in that
The deed
et
In the vs. Reid 2d case Williams 37 S. W. granting in the clause deed seems to have been to that deed involved this case. The similar remise, release, quit-claim de- court stated: “To generally signated to mean that the land is understood any may grantor he land releases have in the time, habendum clause but that is all.” The at the “ that case was as follows: ‘to have and to hold * * * same, (unto) party part, the said of the second * * * parties part, so that neither of the said of the first heirs, any person persons nor their nor other or behalf, them or in their names or shall will hereafter or right any claim or demand title or to the aforesaid * * * premises, thereof, part they every but shall, by one of them presents, these be excluded and convey forever barred’.” The deed was held not to acquired Chase, property. after In the case vs. of Wells 76 Ark. 88 S. W. the court said: “The deed question peculiar is somewhat recites in its terms. It grantors quit- ‘have sold and released grantees, claimed’ Gray, Wells and an undivided following mining one-tenth ‘the interest in and mineral describing lands and claims’ controversy, the claims in and others. The stipula- habendum clause contains a grantors tion that will ‘forever defend the title against aforesaid all hold under or who through’ grantors. the said The effect of the deed was convey grantees grantors'" whatever title the interest, then had undivided one-tenth and to against any prior conveyances warrant or incumbranc- grantors; pur- es made or suffered but it did not port grantors convey any except title what the then They claim, had. was sub- then had title to a lode which *31 sequently abandoned and This is all forfeited. passed by deed, and another subsequently title ac- quired pass.” did not In Countiss, the case of Holmes vs. 1014, 195 Ark. * * * 2d, 553,
115 S. W. “I, deed was as follows: day bargained have this and sold presents and these * * * bargain, quitclaim do following sell and des- (the description cribed follows). lands’” It also had “ a habendum clause to the effect: ‘To have and to hold of all the above-described lands unto the said T. B. Holmes, assigns forever, and unto his heirs and to-
379
gether
improvements
appurtenances
with all
and
of
belonging
appertaining’.”
or
wise
thereunto
warranty.
express
no
covenant or
The deed contained
only
quit-claim deed
was held
the deed was
a
It
creating
acquired property.
estoppel
no
after
See
as to
Wolfe, Trustee,
360,
Ark.
139
200
S.
also Adamson vs.
201,
Luke, 9 Kans.
2d 674. In the case of Bruce vs.
W.
491,
Rep.
was
follows:
12 Am.
“
the deed
substance
dollar,
of
sum one
‘For and
consideration
money
lawful
considerations in
and other valuable
bargains, sells,
Johnnycake ‘grants,
States,’
the United
conveys’
L.
aliens, releases, quitclaims
Kate
and
unto
controversy, ‘together
with all
Simpson, the
land
easements, rights, privileges
ways,
and
improvements,
anywise
same, belonging, or in
appurtenances
rents,
remainders,
reversions,
appertaining,
and all
title,
estate,
thereof,
right,
profits
all
issues
demand,
equity,
interest,
or
law in
claim
either at
to,
Johnnycake, ‘in
otherwise howsoever
the said’
a
held
was
premises’.”
The deed
or out
said
estoppel
To
deed.
quit-claim and
not create
did
Wright, 14 John.
vs.
effect are McCrackin
same
Hubble,
Annota-
194;
See also
According
foregoing
question
deed in
cases the
quit-claim
purely
in this case would seem to be
a
deed.
authorities, however,
quite
do
har-
seem be
not
Christopher,
12
In
vs.
monious.
Tex.
Garrett
67, the
held that
habendum clause
court
under a
S. W.
at
con-
to that in the case
land itself is
similar
bar the
estop-
question
veyed.
The case did
involve
pel,
the rule in that case
repudi-
seems to have been
Eastham,
Tex.
ated in Hunter vs.
The criterion herein would seem to ultimate be parties, gathered, intention which as must appellant counsel admit, from the deed itself and surrounding circumstances. Balch et al. vs. Ar- al., supra. nold et question The deed in denominated “quit-claim Brimmer, holding, a deed”. Mr. C. A. did, merely title, he hardly naked was position in a give any parties other kind of deed. The agreed had agreement November, in their quit- to make Brimmer, claim deeds to C. A. trustee, for all their in- terests the land —Brimmer in turn to execute deeds parties to the contract. The latter executed these They deeds. are identical form with the deed from Brimmer, trustee, C. A. to the Sweetwater Oil Com- pany, and contain They the identical habendum clause. form, printed apparently were on generally executed a County, Wyoming, used in represent quit- Carbon a deed, printed probably claim and this form was also used in the Company, deed to the Sweetwater Oil al- though appear that fact does not in the record. Thus parties evidently agreed themselves and understood form, a deed in above with the habendum mentioned, nothing clause above constituted more than quit-claim deed, hardly a so that it appel- behooves the at late date contrary lant this to claim the and assert Drilling Company that the intended a something deed that form to be else. See Morrison Wilson, agreement vs. 30 Calif. as to an that the only quit-claim deed shall be deed. agreement November, between question based, on which the deed here was agreement compromise respective
was an their *33 Heyward vs. in that connection the land. See claims to the or- State, purchase or sale in No The 92 591. Ga. was way contemplated. obvious intent dinary was pro- determine, them divide between settle and In the case they actually owned. perty had and which 527, Pac. App. 2d 103 Nichols, of vs. 39 Calif. Wilson release 1007, agreement of full settlement 2d lands to certain parties as into between the was entered time, that plaintiff, at which included a lot in which agreement had no interest. It was held this could only quit-claim construed as a release and as mentioned, give estoppel and did not rise to an as to let title, notwithstanding acquired certain warran- after agreement. Rispaud In the case of ties contained 466, Rispaud, 287 Pac. wherein vs. 209 Calif. partitioned property, after it was held that grantee acquired property pass in one of did not agreement par- pursuant the deeds executed court, “is of that doctrine” “The basis said tition. and, clearly there show that estoppel, when the facts indirectly, directly then misrepresentation, was no upon.” also nothing estoppel See to act for the there is Worthington (Tex. App.), W. 118 S. Civ. vs. Edwards any in the case at bar kind There is no basis 2d 328. indirect, claiming misrepresentation, any direct or Drilling Company. Drayton part on the Rig- outstanding Howell and parties knew of the Both The Sweetwater Oil undertook interest. don showing invalidity evidence the fore- furnish That evidence was going interest. Howell furnished, the result. The claim that as shown circumstances, without other these under Drilling Company caused Oil and showing, one-half interest in the lower a deed to executed to be effect, which, the title to the whole sands, warranted held thereof, A number of cases have not credible. appears in the deficiency in the title where 382 itself,
deed subsequently acquired no pass. will title Realty Halverson, Midland Co. vs. 101 Mont. 52 Pac. 2d See, also, and cases cited. cases in note 349; L.A. R. substantially Am. Jur. 349. That is the situation in this case' when we construe the deed in question along agreement November, with the 1937. We need not determine how far the rule should be car- ried, but why we see no reason it should applied not be evidently this case. The rule is based on the same principle Rispaud Rispaud, stated vs. supra, namely, that when there is a total deceit, absence of direct or indirect, estoppel the rule of acquired to after pro- perty apply. does not *34 every conveyance
Not estoppel; an involves a sound reason must exist to estoppel in result as to after acquired property. It has been said “presump that the against tion is rather than estoppel, for the and those rely upon who it must show that it results from the language particular clause, of the and is consistent with * * * object the tenor and general, of the deed. A vague, ambiguous statement, indicating parties not that the meant particular to tie themselves down to a state of facts, consequently operate will estoppel, not as an nor will it implication be raised intendment of from language susceptible interpretation.” of another 2 Leading (8th Ed.) Page Smith’s Cases 821. Some of estoppel the cases have held that an not cre deed is change ated or enforceable unless there has been in a parties the situation of one reliance on the estoppel deed. C. J. S. 196. After all the rule of fundamentally equity. one of Thus it was said in Mid Realty Halverson, supra, land Co. vs. that “the doctrine estoppel engrafted upon was invented and the law wrongs prevent promote and not to them.” In Jack Mills, 53, 115 son vs. 185 N. C. S. E. the court said: “True, estoppel enlarged doctrine has been in warranties, only clude deeds without covenant or but purpose protecting to the extent and for the bona purchasers. equitable doctrine, fide But is still an rule, innocent, an inflexible a shield of the and not question sword for destruction.” Even if the deed quit-claim deed, single here is more than a not a sound just found, see, reason can far so as we can applying foregoing estoppel rule of as to after acquired property parties case. this Whatever agreement pursuant undertook to do of Novem- ber, 1937, agree- undertaking. reciprocal it was a The specifically provides ment into in that it is entered con- sideration of agreements the mutual covenants and true, hardly thereto. It is claim, as counsel Drayton that “across the table Drilling Oil and agreed Company convey to the Sweetwater Oil Com- pany an undivided one-half of all oil in the lower agreement, most, sands.” The at could be said to be the one-half interest above mentioned should be conveyed Company provided to the Sweetwater Oil would, turn, the latter cause the other in- one-half conveyed Drayton Drilling terest to be Oil and Com- pany. perform The Sweetwater failed to part agreement; its it defaulted to identical Drilling Company. extent as the Oil and purchased in interest of Howell and had to be order to then thereof. It has fre- divest the holders *35 quently been estoppel said the doctrine of has been adopted circuity to avoid action. C. J. S. 204. In place other it takes the might words of actions which instance, otherwise exist —for an action for the value property, of the in case of failure of title. No such ac- tion would lie in favor Company Sweetwater Oil assignees case, or in this its view of its failure to perform. containing In an action on a contract mutual dependent promises covenants, or concurrent plaintiff ready perform. must be to 17 C. J. S. Company 1173. In this case the Sweetwater Oil never very able do so. situation is similar to was if where it is stated that discussed 31 C. J. S. rights parties estopped, are are both regard adjusted any estoppel. without to be view of the that the Sweetwater Oil In fact invalidity undertook to furnish evidence interest, so, and did not do fault Howell and its acquired pursuant interest was not that such November, 1937, greater agreement appears to be Drilling Company. It than that of it, great. permit and its successors least as To is at interest, acquire interest under one-half of that now deed, promote estoppel by be to would the doctrine of prevent it. wrong, not to rehearing petition it clear that think We denied, ordered. is so should J., Riner, Kimball, concur. J. and