137 Ky. 339 | Ky. Ct. App. | 1910
Opinion of the Court by
— Reversing.
“The lessees covenant and agree to pay the lessors, for the use and enjoyment of the premises hereby leased, for the purposes aforesaid, irrespective of the amount of coal mined, a certain yearly rental of seven hundred dollars ($700.00) payable in quarterly installments of one hundred and seventy-five dollars ($175.00) each at the office of the lessor, in Halsey,
“(2) The lessees further covenant and agree to pay the lessor for all coal mined on or removed from said premises and not coked a royalty of eight (8) cents for each ton of 2,000 pounds; a royalty of fifteen (15) cents for each ton of 2,000 pounds of coke made and used on or removed from said premises; and a royalty of 25 cents (25c) for each ton of 2,000 pounds of cannel coal mined and used on or removed from said premises; and on.the fifteenth (15th) day after each quarter year in which the coal is mined or coke made, to pay, at the office of the lessor in Halsey, Kentucky, or as it may direct, to said lessor or order, the amount of said royalty due for said preceding quarter, less the amount of the quarterly installment of certain rent as provided for in the preceding paragraph of this lease; but in any event the certain rent as provided for in the preceding paragraph of this lease must be paid in full. No royalty shall be charged on coal actually used by the miners in their cottages on said premises.
“ (3) An annual accounting shall take place during the first week in May in each year, beginning in 1906, and if it shall appear that the lessees shall have paid to the lessors more than seven hundred dollars ($700.00) for the year ending April 25th previously, and if it shall further appear that during any quarter of that year the royalties did not amount to the fixed rent of one hundred and seventy-five dollars
“(4) The lessees further covenant and agree to furnish to the lessor, within ten (10) days from the first day of each month, at the office of the lessor in Halsey, Kentucky, or as it may direct a report in a form that shall be satisfactory to the lessor, showing the number of tons mined and used on or removed from said premises during the preceding month.
“(5) The lessees further covenant and agree that all the rents and royalties herein agreed to be paid, shall be deemed and considered as created for rents of land and shall be a lien on this leasehold and the fixtures and improvements thereon and on the personal property of the lessees, and on the coal mined from, and on the coke made on, said premises for twelve (12) months after said rents and royalties fall due and until the termination of any suit commenced within that time for said rents and royalties.
“(6) The lessees further covenant and agree to keep full and accurate accounts, in suitable books, of all coal mined from, and coke made on, said premises,
“ (22) The lessees further covenant and agree that should the lessees fail to pay the rents and royalties, or either of them, provided for, at the time and place hereinbefore specified, and shall continue in such default for sixty (60) days thereafter, then, this lease shall, at the option of the lessor, be forfeited and become null and void, and all rights and privileges of the lessees hereunder, shall at once cease and determine, and the lessor or its officers, agents or assigns, may thereupon enter and take possession of said premises, with the appurtenances, in the same manner and to as full an extent as said lessor might or could do at the expiration of the full term of this lease as herein provided. And the lessees hereby waive notice of the lessor’s intention to terminate this lease, as well as all demands for the unpaid rents and royalties, or either of them. ’ ’
The lease from the Louisville Property Company to G. B. Powers & Co. contained the same stipulations as to the rent of the 105-acre tract. The contract^between the Louisville Property Company and the Wender Blue Gem Coal Company as to this tract provided that the land was leased to the Blue Gem Coal Company on the same terms as in the lease to Powers & Co., with the exception that the minimum annual rental for this tract should be $600, and should not begin to accrue until January 1, 1907. On May 24, 1909, the Louisville Property Company brought this action against the Wender Blue Gem Coal Company charging in the petition that the lessee had failed to pay tire rent as it fell due, and that there was due it on account of rent $3,615.26; that the default in the
The proof shows that the coal company had spent something like $30,000 in developing the mine, and in putting in tracks, tipples, and other improvements. It is insisted for it that the lease is a one-sided, harsh contract, and that the forfeiture of the lease should not be enforced. On the other hand, it is clearly shown from the evidence that the coal company has operated the mine at a loss, that it is insolvent, and it is very doubtful if the mine can be so operated as to pay the rent or make a profit. The contract provides that the lease may be terminated if the rent is not paid. Such contracts are common and are universally upheld. While a court of equity will relieve against a forfeiture on account of the nonpayment of rent where circumstances are shown justifying the interposition of the chancellor, the court cannot make for the parties a different contract than they have made for themselves. The rent here • is long past due, no tender of the amount due is made, and what the future would bring forth as to a profit being made in the operation of the mine is purely speculative. The tenant is insolvent, and other liens are asserted on the property. We cannot under such circumstances say that the chancellor erred in terminating the lease. 24 Cyc. 1352; Taylor on Landlord and Tenant, sec. 495; Wilson v. Jones, 1 Bush, 173.
While contracts by which property is sold, with the stipulation that the title is to remain in the seller until it is paid for, are enforced in some states, the rule in Kentucky has long been that such contracts are mortgages, and are not valid against purchasers for value or creditors unless recorded.
It will also be observed that by section 2316, if the lien is created while on the leased premises, then to the extent of one year’s rent, due or to become due, a distress or attachment shall have precedence pro
Sarah J. Chilton tendered her petition which was filed and taken as her answer. In this petition she showed that she had lent the Wender Blue Gem Coal Company on October 16, 1905, $2,263.50, for which it executed to her its notes and a mortgage to secure them on the leasehold interest it then held in the 89-acre tract; also on the equipment, implements, mules, tools, and property of every kind owned by it
The court did not err in adjudging that the Louisville Property Company as to its superior lien for rent must first exhaust the property on which the Morgan-Gardner Electric Company had no lien before resorting to the property on which it has a lien. The same principle should be applied in favor of Sarah J. Chilton if she is adjudged to have a lien on any of the property under her mortgage. Sarah J. Chilton for the reasons we have given has no lien on any personal property acquired by the Wender Blue Gem Coal Company after the execution of her mortgage, and she therefore has no lien on the machinery on which the Morgan-Gardner Electric Company asserts a lien. By the recorded lease between the Louisville Property Company and the Wenders it was stipulated, among other things, that the rent should be a lien on the personal property of the lessees on the premises. Mrs. Chilton’s mortgage Avas taken subsequently, but her mortgage lien, if valid, is su
On the appeal of the Wender Blue Gem Coal Company the judgment is affirmed. On the appeal of the Morgan-Gardner Electric Company and Sarah J. Chilton, the judgment is reversed and cause remanded for further proceedings consistent herewith.