54 W. Va. 483 | W. Va. | 1903
Lead Opinion
Granville P. Zinn appeals from a final decree of the circuit court of Ritchie county rendered on the 28th day of February, 1901, in a chancery suit therein pending instituted by M. G. Zinn against him and others for the purpose of determining the title to one-eight royalty in a certain tract of land, of which appellant was seized and possessed in fee simple. The suit resulted in favor of the plaintiff. Appellant assigns numerous errors. The first in importance is the overruling of the demurrer to the bill for want of equity.
The bill alleges in substance that Thomas P. Zinn, being the owner of a certain twenty-four, more or less, acre tract of land on the 21st day of March, 1896, conveyed to Preston G. Zinn, the oil and gas undertying the same, by deed duly acknowledged, but not admitted to record until the 10th day of August, 1899; that on the 1st day of August, 1896, Thomas P. Zinn conveyed to the appellant the same tract of land without reservation of the oil and gas, by deed duly acknowledged and admitted to record on the 29th day of August, 1896; that on the 21st
The title to land is not in controversia. All plaintiff received by his deed from Preston G. Zinn was an assignment of the oil royalties and gas rentals, as Preston G. Zinn had already.con
A bill in equity does not lie to remove a cloud on or settle the title to personal property, unless it is of peculiar value or under peculiar circumstances. Zanhizer v. Heffner, 47 W. Va. 418; White v. Stender, 24 W. Va. 615; Baker v. Rinehart, 11 W. Va. 238. Appellant might have been held as trustee of the legal title for the benefit of the plaintiff had the plaintiff’s suit been instituted before both legal and equitable title to the oil merged in the Carter Oil Co. How the only claim that plaintiff sets up against appellant is, not the wrongful withholding of the legal title, but the wrongful withholding of the oil royalties, for which damages at law furnish a full compensation. One suit at law will settle the right to the rents and royalties as between appellant and plaintiff, and the question of multiplicity of suits is not involved, and if it were the right should be first determined at law. Hogg’s Equity Principles, section 350. There is no question of irreparable damage or waste involved, as Preston G. Zinn by his lease to the Carter Oil Company, Granville P. Zinn’s lessee, then in possession, sanctioned its right to remove the oil and gas and agreed to receive a rental therefor. The case of Bettman v. Harness, 42 W. Va. 433, is not applicable. ' In that case the right to remove the oil and gas was involved, as producing irreparable damage to real estate. Eakins v. Hawkins, 48
If plaintiff wants the oil in kind, and it can be identified, detinue will furnish him an ample remedy. Hall v. Reed, 15 B Monroe, 479. Tic argued that the oil should go into tho pipe line, and therefore he cannot complain if it is not separated
An examination of the exhibit filed shows it to be a straight lease from Preston G. Zinn to the Carter Oil Company, reserving royalty and makes no reference whatever to the Granville P. Zinn lease. The allegation of the bill therefore must mean that the legal effect of the last lease obtained by it was to ratify and confirm in the Carter Oil Co-, the title already held by it under the first lease. The reservation of the royalties in the two leases are separate and distinct, and there is nothing on the face of the leases to show that they were one and the same, nor does the bill contain such allegation. Hence the bill and exhibits show a double reservation of royalties, being a separate reservation to each of the lessors. Such being the case, one lessor cannot sue the other for the separate roj^alty received by him, for he is entitled to receive it by his separate lease and there is no privity of contract between them. The Carter Oil Company having purchased both titles the plaintiff having passed everything but the royalty, has no right to sue appellant in equity for his royalty on the grounds that appellants title conveyed to the Carter Oil Company is bad. If the Carter Oil Company, which owns the title is satisfied no one else has the -right to complain. Eor does it have the right to buy up ad
All remedies touching the oil in place as real estate as between the original claimants are extinguished by the merger of the adverse titles thereto in the Carter Oil Company.
The remedies for the oil royalties and rents of both plaintiff and appellant arc governed and controled by their respective leases and for breaches thereof they should look to the Carter Oil Company, and not to each other unless the appellant has been guilty of an unlawful conversion of the plaintiff’s royalties. The remedy in such case would be at law, and not in equity. Whether the Carter Oil Company can plead failure of consideration, &c., as to either lease under section 5, chapter 126, Code, it is improper to consider at this time, as neither the facts nor the proper parties are properly impleaded before the court. In the case of Freer v. Davis, 52 W. Va. 1, the Court held that a temporary injunction might issue to preserve real estate intact until the title thereto could be settled at law. But it did not hold that an injunction was necessary to prevent the delivery of oil lawfully extracted to a solvent claimant thereof until the rightful ownership thereof could be investigated. Injunction in such case is wholly unnecessary and might be productive of much greater harm than good. If the receiver of the oil is solvent a suit at law will furnish ample remedy and protection. If insolvent, notice to the Pipe Line Company or an action of de-tinue would prevent its delivery, if it can be had in kind. Plaintiff docs not ask this. In the present case the bill does not question the solvency of the appellant. If the plaintiff has a good claim for these royalties either against the appellant, the Eureka Pipe Liao Company or the Carter Oil Company, his legal remedies are adequate and complete. The bill is based on mere equitable pretexts, void of foundation in fact. Hale v. White, 47 W. Va. 700; Greathouse v. Greathouse, 46 W. Va. 21.
The decree complained of is reversed, and the demurrer for want of equity is sustained, and the bill is dismissed without prejudice to the plaintiff’s right to maintain any proper suit he may be advised to bring.
Reversea.
Dissenting Opinion
(dissenting) :
The bill does not contest the right of the Carter Oil Co. to develop the land and take the oil and gas therefrom. The assignor of the plaintiff, by his lease, authorized this. The defendant, Granville P. Zinn, the appellant here, also executed a lease granting the same right. Ho question of the right to the possession of the land is presented. The bill does not seek to enjoin trespass to real estate.
The plaintiff shows that the royalties had been paid and are paid to Granville P. Zinn and that he ought not to receive them because they belong to the plaintiff. It is useless to inquire or determine whether there is any liability for additional royalty on the part of the oil company for none is claimed in the bill. It shows that the oil company is taking all the oil except the one-eighth, and its right to do so is not questioned.
So the controversy is between M. G. Zinn and Granville P. Zinn, and the subject of that controversy is the royalty oil. These two parties are adverse claimants of that one-eighth. M. G. Zinn claims it under the deed executed by Thomas P. Zinn to Preston G. Zinn, bearing date March 21, 189C, conveying to' Preston G. Zinn only the oil and gas under the land. Granville P. Zinn claims it under the. deed executed by Thomas P. Zinn to him August 1, 1896, conveying the tract of land with covenant of general warranty to Granville P. Zinn, and without any exception or reservation of the oil and gas under it. Preston G. Zinn failed to record his deed. Granville P. Zinn claims to have had no notice of the deed made to Preston G. Zinn. M. G. Zinn, by an assignment and transfer from Preston G. Zinn, dated June 15, 190.0, has acquired whatever right Peston G. Zinn had to royalty, and he insists that his title to the royalty is superior to that of Granville P. Zinn because the latter had notice of the deed executed by Thomas P. Zinn to Preston G. Zinn.
If M. G. Zinn has an adequate remedy at law, then there is no jurisdiction in equity. His bill shows that he has demanded this royalty from Granville P. Zinn and that the latter has ig"-nored his, demand, denied that he had any title to it, taken the oil and and converted it to his own use. If the plaintiff can
But it occurs to me that the remedies by action at law for damages are inadequate, ^n order to assert it, the plaintiff must give up his property. He has a right to the specific property instead of a share in the property to be set apart to him in kind, and ought to have a remedy by which he can obtain the property instead of its mere value as damages. In the case of rent or an annuity, the thing to which the claimant has the right is money and one kind of money is as good as another if it be of the same value. Hence, as long as he has a remedy to obtain the money, that being the only thing in question, his remedy is adequate. But here, the bill demands- a share of the oil, not only that which has already been produced and íemains unsold, but also of that to be produced hereafter. The law clearly affords him no remedy whatever for that. ■ He cannot sue in detinue so as to test the rights of property for two reasons. First, because he is not entitled to the whole of the oil in question and cannot sue for the whole of it. Assuming that he has title to the one-eighth, the Carter Oil Co has title to the other seven-eighths. Treating them merely ,as co-tenants,
Equity having jurisdiction for partition, may decide all questions, 'even those of legal title; the determination of which is necessary as incident to the granting of the relief to which the plaintiff shows himself entitled.
