168 S.E. 383 | W. Va. | 1933
This is a suit for partition of oil and gas.
The plaintiffs are the joint owners of an undivided one-half interest in the oil and gas (with right of exploration and removal) underlying a tract of 15 1/2 acres of land in Roane County. The defendant is the owner of the other undivided one-half of said minerals with right to drill for and remove the same. Plaintiffs, alleging in their bill that the oil and gas are not susceptible of partition in place and that the interests of the parties, both plaintiff and defendant, will be promoted by a sale of the oil and gas, pray for sale thereof and distribution of the proceeds. From a decree directing sale of the property defendant has obtained this appeal.
The cause was submitted on bill, answer and general replication. In its answer the defendant says that "it may be true, as alleged in the said bill of complaint, that the oil and gas underlying said 15 1/2 acre tract of land is not susceptible of partition in kind and that the same can only be partitioned by the sale thereof, but respondent says, and here calls the court's particular attention to the fact" that there was then pending in the same court an undetermined suit in chancery for the purpose of establishing an outstanding interest in a tract of fifty acres formerly owned by one Jehue Wilmouth (ancestor of the plaintiffs) whereof the said 15 1/2 acres was originally a part, and that the said suit directly affected the oil and gas sought to be partitioned in the instant suit. Because of the pendency of such suit, the defendant took the position that the instant suit should be stayed until the other suit should be determined, or that the bill in the instant suit should be amended so as to make parties thereto all persons *399 who were parties to the other suit and not already included in the instant suit. The action of the court in disregarding this request in both of its aspects is assigned as error.
In justification of the court's said action, it is urged by the plaintiffs that the statement or averment of the defendant with reference to the pendency of the other suit, appearing in the record only as a part of defendant's answer, carries no significance, because, it is said, the general replication put in issue all matters pleaded in the answer. Reliance is made upon settled law: "Affirmative allegations of an answer, not constituting a claim for affirmative relief, but controverting the allegations of a bill not sworn to, are put in issue by a general replication, and the burden of proving the same is on the defendant." Seim v. O'Grady,
It being made to appear from the suggestion or statement in the answer that there was another suit pending, the court should have acted in compliance with the requirement of the statute quoted, and have stayed the proceedings in the instant case. Of course, the suggestion of the pendency of another suit could easily be verified from the court's own records or disproved if not true.
As appears from the above quoted portion of the answer, the defendant neither affirms nor denies that a sale of the property will be to the advantage of the parties in interest. And, though the bill avers that such sale will be to the advantage of the parties, there is no proof. In a partition suit, before there can be a sale, "there must be an affirmative showing of the propriety of sale." Smith v. Greene,
The Garlow case was decided under the statute as it appeared in Code 1923, chapter 79, section 3, which authorized sale in a partition suit "if the interests of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue." Code 1931,
For the two reasons considered we are of opinion to reverse the decree of the trial chancellor and remand the cause for further proceeding not at variance with the principles herein discussed.
Reversed and remanded.