58 W. Va. 449 | W. Va. | 1905
John Blayney and John McCoy were the owners of two contiguous tracts of land making together one hundred and sixty-five acres. On the 17th day of June, 1859, thejr conveyed to Joseph Connelly, Joseph Ford, Otho W. Heiskell and John Handlan all the coal underlying the two tracts of land. By regular conveyances the title to both tracts became vested in John Blayney, who conveyed the same to Samuel Roney on October 4th, 1870; Samuel Roney and wife conveyed the same by deed of trust to I. F. Jones, trustee, who, by deed dated August 22nd, 1877, conveyed the same one hundred and sixty-five acres to James Y. Wallace. It seems that the conveyances made after the coal deeds of June 17th, 1859, purported to convey the whole property without reference to the said conveyances of the coal underlying the said tracts of land. By deed dated the 6th day of February, 1902, the heirs at law of the said Connelly, Ford, Heiskell, and Handlan, the grantees of the coal in the deeds of June 17th, 1859, conveyed the said coal and mining privileges to the Elm Grove Coal Co., a corporation.
On the first Monday in August, 1903, the said James Y. Wallace filed his bill in equity in the circuit court of Ohio county against the Elm Grove Coal Co. alleging the various deeds of conveyance of said property and also the said deeds conveying the underlying coal to the said Connelly and others;
Defendant filed its demurrer in writing to plaintiff’s bill, in which demurrer the plaintiff joined and on the 21st day of April, 1905, the following order was entered: “The defendant, Elm Grove Coal Company, at a former term of this Court, filed its demurrer in writing to the plaintiff’s bill, and the said demurrer having at said term been argued and submitted to the court, (it being admitted in the oral argument that there had been no actual possession of the underlying coal as distinguished from the constructive possession resulting from the convej^ance of the land to the plaintiff and his grantors and from the occupancy of the surface by the plaintiff and his grantors; and a willingness was expressed that the matters arising should be passed upon as if the averments were modified accordingly), the court now adjudges the law upon said demurrer to be with the defendant, and the plaintiff’s bill to be insufficient in law. The demurrer is sustained. And the plaintiff not desiring to amend, it is adjudged, ordered and decreed that the bill of complaint be dismissed, and that the defendant recover from the plaintiff its costs in this suit expended to be taxed by the clerk.” From which decree plaintiff appealed and in his petition says: “The main question presented to this Court is, has the title of the defendant been forfeited to the state?” and Second: “The remaining question is, Has the forfeited title vested in the plaintiff?”
It is claimed by appellee that this case is governed by the case of State v. Low, 46 W. Va. 451. In that case the title of Low and others was a defeasible title, the vendees could at their option under their contract omit to pay within a given time the sum of $800 — when upon such failure to pay then-title was to become and be ‘ ‘as absolutelj' null and void as though it had never been made,” and the title would thus revert to the grantor in whose name the whole property was charged for purposes of taxation. While in case at bar Roney in 1870 took a title hostile to that of the vendees of the coal, and as we have seen under the authorities he, nor those holding under him, never could have possession of the coal under his deed without entering into the coal in the way of mining the same or reducing the coal itself to physical possession, and that in an open manner so as to give notice to the world that he was claiming it as his own and hostile and adverse to all others.
Appellant claims that by reason of non-entry of the coal'on the assessor’s books, the title thereto became forfeited to the State and by virtue of section 3, Art. 13 of the Constitution, and section 40 of chapter 31 of the Code, the title so forfeited passed to the appellant as a person of the second class described in said sections of the Constitution and statute.
The appellant could not take by transfer under the second class mentioned in said sections because when he purchased the land, the coal had been severed by deed, and was distinct and apart from the surface, that held by appellant, and it is immaterial whether the title to the coal conveyed in 1859 was forfeited to the State or not for non-entry or otherwise; appellant had no claim to it because he had no title conveying it, and it is onty he who has good title can maintain a suit to remove a cloud from his title. He certainly did not take title to the coal when he purchased from the trustee, Jones, and he had no possession of the coal thereafter, the only thing that could ripen a mere color of title into a good title. In Hitchcox v. Morrison, 47 W. Va. 206, syl. pt. 2, it is held: “Those only who have a clear legal and equitable title
For the reasons here stated the circuit court did not err in sustaining defendant’s demurrer to plaintiff’s bill and the judgment of the circuit court is affirmed.
Affirmed.