73 W. Va. 81 | W. Va. | 1913
Claiming that their .ancestor Charles P. Garrett, deceased, acquired, in his lifetime, by deed from Timothy Pittman, Jacob Pittman and Isaac Pittman three undivided tenths of
There are a producing oil well and a producing gas well on the land, the former being owned by Hervey and McNaught, and the latter by the Hope Natural Gas Company. Their respective rights therein are admitted in the bill. The Hope Natural Gas Company, claiming to he the owner of the gas well under separate leases from the adverse claimants of the aforesaid three undivided tenths of land, has refused to account to plaintiffs for the annual rentals therefor, and the Eureka Pipe Line Company has likewise refused to turn over to them the three-tenths of the royalty oil in its pipe lines, until the title to said .three-tenths of land is settled between the Garrett heirs and the three aforenamed Pittmans. Therefore, the above named companies were made parties, and the bill prays for ian accounting against them. On the 2nd June, 1910, the chancellor heard the cause upon bill’taken for confessed as to all the adult defendants, and determined the question of title to the said three-tenths of the land in favor of plaintiffs, and restored the lost deed by giving his decree the effect of a deed and directing its recordation in the county court clerk’s office. By decrees made at subsequent terms of court partition was made of the land, except the oil and gas, by a sale thereof and the ascertainment of each co-owner’s share in the proceeds, it having been found that partition in kind could not be made -without detriment to the interest of all parties concerned. Division was also accordingly made of the accumulated royalty oil and gas rentals, and provision made for the payment of future rentals and the delivery of royalty oils to the parties -according to their several interests, which the decree determined.
The Hope Natural Gas Company was granted this appeal to
The Eureka Pipe Line Company and the Hope Natural Gas Company are the only parties that appeared to the bill. They appeared on the 4th of May, 1910, at a regular term, and demurred to the bill, assigning nothing in support thereof. Plaintiffs joined in the demurrer and the issue of law thereon was heard on the 1st of June, 1910, and the demurrer overruled. Demurrants were given until the nest day to answer; and, failing to answer, the cause was heard' on the 2nd of June, 1910,' upon bill taken for confessed as to all of the adult defendants, and upon the .answers of the guardian ad litem of the infant defendants, and a decree entered,' finding that the three aforesaid Pittmans had ebnveyed their undivided three-tenths interest in all of' the land of' which their father had died seized, by deed made and delivered to Charles P. Garrett, plaintiffs’ ancestor, in 1877, .and further finding that said deed was lost and was never recorded. The decree also restored said lost deed in the manner above stated; and cancelled two deeds, one executed by Isaac W. 'Pittman and wife to J. A.' Pittman^ and another by said J. A. Pittman'.and 'wife to' Sarah A. Pittman the wife of Isaac W. Pittman, for the undivided one-tenth interest in said 36-1/3 acres of land. Appellant insists that it
At a special term of the court held on the 5th of July, 1910, the Hope Natural Gas Company and the Eureka jPipe Line Company were permitted to file their answers and demurrers to the bill. Those answers came too late to' raise an issue concerning any of the matters determined by the decree of June 2nd. The term of court ¡at which that decree had been entered, had adjourned, and the appealable matter thereby
It is insisted that it was-error to appoint a special receiver, to take charge of the royalty oil and gas rentals, without notice to the parties, as required by section 28, chapter 133- of the -Code. Granting that it was error, this court will not now reverse for such error alone. It only relates to procedure; and, seeing that the ease is one in which it was proper to appoint a receiver, and that he has performed his duties in the manner required by the decree appointing him, such decree will not be reversed for failure to give notice of application for a receiver. The Hope Natural Gas Company was required to turn over -to the special receiver the gas rentals in its hands, less the one-fifth thereof which the decree found to belong to it; and the Eureka Pipe Line Company to turn over to him all the royalty oil in its possession belonging to the owners of the royalty interests, the amount of which was ascertained to be three hundred and twenty-six barrels. This the special receiver was directed by the decree to sell. The Hope Natural Gas Company appears to be the owner of one-fifth of the royalty oil, as well as one-fifth of the gas rentals, and it is insisted that the decree of distribution, made on the 26th day of May, 1911, is erroneous, in that it fails to direct the special receiver to pay over to it its share of the proceeds of royalty oil. The proceeds thereof amounted to $423.78, at that time, and was properly taxed with its proportion of the costs of suit. It therefore appears that appellant’s pecuniary interest, being the one-fifth, is less than one hundred dollars. Moreover, it appears to be an error of record, which could have been corrected by the court below. Because plaintiffs’ bill admits that appellant is a one-fifth joint owner in the royalty oil, as well as a like owner in the gas rentals. The decree also recognizes its interest in the royalty oil, but does not expressly direct the receiver to pay it over to it. This is not an error calling for reversal, but is one which can be corrected here.
It is insisted that it was error to hear the cause without replication to appellant’s answer, no proof having been taken. No replication was necessary. The only averments in the bill,
It is said that W. E. Lemasters, who is interested in the oil and gas royalties, was not made a party to the suit. But we find that he is a party plaintiff, by the name of E. M; Lemasters. Iiis correct name, W. E. Lemasters, appears in the bill, and in the decree distributing gas rentals and proceeds of royalty oil, in which he is given a life interest in the one-sixth.
Cross-assigning error in brief, Timothy Pittman and Milly C. Pittman his wife, insist that it was error to take the bill for confessed as to them, they being non-residents and personally served with summons in a foreign state. This was error, but not an error affecting jurisdiction. The court had jurisdiction to enter the decree which it did. enter, upon order of publication executed; and personal service out of the state is made the equivalent thereof. Moreover, application should have been first made to the court below to have the error corrected. Sec. 5, Ch. 134, Code.
The decree of May 26, 1911, making distribution of the proceeds of oil and gas rentals', will be corrected directing the special receiver to pay to the Hope Natural Gas Company its one-fifth of the proceeds of sale of royalty oil, after deducting from said one-fifth, its proportion of the costs provided for in the decree; and, as so corrected and modified, it and all other decrees appealed from will be affirmed, with costs to appellees.
Modified and Affirmed.