Cent. Trust Co. S. v. Harless S.

• Decision Date: 25 February 1930
• Docket Number: (No. 6517)
• Citation: 108 W.Va. 618
• Court: West Virginia Supreme Court
• Parties: Central Trust Company et als. v. Emer M. Harless et als.

108 W.Va. 618

Central Trust Company et als.

v.Emer M. Harless et als.

(No. 6517)

Supreme Court of Appeals of West Virginia.

Submitted February 18, 1930.

Decided February 25, 1930.

1. Lis Pendens Lis Pendens Statute Applies Only to Suits to Charge Realty With Debts, Not Suits to Recover Realty (Code, c. 139, §§ 1A, 15).

Sections 14 and 15, Chapter 139, Code, requiring the filing of lis pendens, applies only to suits to charge real estate with debts, and not to suits to recover it. (p. 623).

(Lis Pendens, 38 C. J. § 1, p. 4, N. 10.)

2. Same Absent Statute, Common-Law Doctrine of Lis Pendens

Applies in West Virginia in Suit to Recover Land; Under Common Law "Lis Pendens" Doctrine, Purchaser From Party in Pending Suit Takes Land Subject to Final Disposition of Cause.

According to the common law doctrine of lis pendens, which in the absence of statute obtains in this state in suits to recover land, one who purchases from a party to a pending suit a part or the whole of the subject matter involved in the litigation, takes it subject to the final disposition of the cause, and is bound by the decree or order that may be entered against the party from whom he derived title, (p. 623).

(Lis Pendens, 38 c. J. § 3, p. 7, N. 26.)

3. Same) Lis Pendens Doctrine is Founded on Necessity to

Give Effect to Court Proceedings and Prevent Decree Involving Recovery of Specific Property From Being Abortive.

It is the accepted doctrine in the Virginias that lis pendens is founded upon the necessity of such a rule to give effect to the proceedings of courts of justice. For without it the administration of justice might, in all cases be frustrated by successive alienations of the property which was the object of litigation, pending the suit, so that every judgment and decree would be rendered abortive where the recovery of specific property was the object, (p. 623).

(Lis Pendens, § 18, p. 19, N. 58.)

4. Judgment Order Reciting Plaintiff and Certain Defendants

Had Compromised Differences, and Dismissing Ejectment Suit According to Contract Made Part Thereof, Held Final "Judgment".

During the pendency of an ejectment suit the plaintiffs entered into a compromise with certain defendants, who claimed title to certain specific tracts within the boundary sued for. Thereupon an order was entered by the court in said action, which order recited: "This day came as well the plaintiffs by their attorney A. Burlew, Esq., as the defendants, S. S. Stone and T. L. Oxley by their attorneys T. B. Swann, Esq., and it appearing that the plaintiffs and said defendants have compromised their differences in this cause. It is ordered that this suit be dismissed as to the defendants S. S. Stone and T. L. Oxley according to two certain contracts in writing herewith filed marked 'A. & B', respectively, and are in the words and figures following to-wit: (A) 'Memorandum of Agreement made this 1st day of August, 1881, between John W. Stevens of New York for himself and as attorney for E. Morgan of Connecticut, and Samuel S. Stone of Lincoln County, West Va. The conditions of this agreement are that the said Stevens & Morgan agree to make a release or deed to said Stone for the following tracts of land that are within the bounds of Putney tract * * * and to release and discharge the said Stone from a suit in the United States Court at Charleston in which J. S. Kennard & P. M. Gardner are plaintiffs and said Stone agrees to make a release or deed to said Stevens & Morgan for all the mineral and coal in said above tract of land except coal for domestic purposes, which he reserves for his own use. And each party agrees to pay their own costs in the above suit.'" ("B" contract not involved here.) Held: Such order amounted to a judgment adjudicating the rights of the parties to the compromise agreement, (p. 624).

(Lis Pendens, 38 C. J. § 45, p. 33, N. 29.)

5. Mines and Minerals Where Adverse Possession of Coal is Relied on to Show Title, Mining Must be Shown to Have Continued for Ten Years Where Minerals Have Been Severed From Surface; Proof of Operation of Mines From, "Time to Time" Does Not Sufficiently Show Continuity of Possession for Statutory Period to Give Title by Adverse Possession.

Where there has been a severance of the minerals from the surface and adverse possession of the coal is relied on to show title, the mining of the coal must be shown to have been continuous for the statutory period of ten years. Proof of the operation of mines opened thereon "from time to time" is not sufficient to show continuity of possession, (p. 628).

(Mines and Minerals, 40 C. J. § 445, p. 90, N. 21.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Lincoln County.

Suit by the Central Trust Company and others against Emer M. Harless and others. From the decree, defendants appeal.

Affirmed.

Beverley Broun, J. M. Woods and Price, Smith & Spilman, for appellants.

Harold A. Bit2 and B. J. Pettigreiv, for appellees.

Woods, Judge:

This is a suit to cancel certain purported title papers under which the defendants assert and claim ownership of the oil, gas and other minerals upon and underlying certain lands, situate in Lincoln County. An injunction was awarded inhibiting and restraining the defendants, their agents and employees from drilling upon and operating said property for oil and gas. The chancellor, after considering the pleadings, the exhibits therewith, and the agreed statement of facts, decreed plaintiffs the relief prayed for, and perpetuated the injunction aforesaid; and dissolved the interlocutory injunction awarded after the submission of the case enjoining United Fuel Gas Company (one of the plaintiffs) from drilling under its lease pending the litigation. From the decree, defendants appeal.

In 1874, J. Spencer Kennard, who claimed to be the owner of a large boundary of land, embracing approximately 12, 000 acres, a portion of which is involved herein, instituted in the United States District Court, at Charleston, an action of ejectment against Thomas L. Oxley, Samuel S. Stone, Robert Breedlove, and others, alleging that they unlawfully withheld the possession of the described premises from him. Stone was in possession of and claimed title to five separate contiguous tracts of land (677 acres) within said boundary, three of which (202, 246 and 55 acres, respectively) had been patented to him about the year 1885 by the Commonwealth of Virginia. The other two (a 74 and a 100 acre tract), patented about the same time to Ephriam Griffith and Elias P. Vickers, respectively, were conveyed by the said patentees to the said Stone. Robert Breedlove was in possession of another tract claimed by him and each of the other numerous defendants was in possession of a separate tract, of wdiich he claimed to be the owner. Stevens and Morgan succeeded to Kennard's interest February 7, 1881. On March 1, 1881 (the ejectment case still pending) Samuel S. Stone, by deed, conveyed to Robert T. Breedlove and wife three different tracts or parts of tracts of land involved in said suit, namely, the 100 acre tract conveyed by E. P. Vickers to said Stone, 37 acres from the 74 acre tract conveyed by Ephriam Griffith, and 4 acres from the 55 acre tract patented to said Stone by the Commonwealth of Virginia. This deed was placed of record on January 25, 1882. The Breedloves moved onto the property immediately after delivery of the deed, claiming title thereto under said deed, resided in a dwelling house thereon and proceeded to clear, fence and cultivate the said land. On September 30, 1896, Breedlove and his wife conveyed a portion of the land bought from Stone to Abednego Hale who immediately entered into occupancy thereof, and has had the same fenced and under cultivation ever since that time. This deed was admitted to record October 6, 1896.

About forty years ago the said Breedloves opened a coal mine upon a portion of said land, and drove their entry for about one hundred feet thereunder and sold coal from said mine as it was needed by their customers in that neighborhood, employing a coal digger as his services.were required for the purpose of mining said coal as it was purchased, '' and continued said mining operations from time to time as coal was sold by them" until 1896 when, as already referred to, they conveyed that portion of said land to Abednego Hale. Hale later opened three other mines thereon," in two of which he drove his entry for about one hundred feet under the ground into the coal seam, and the third of which was opened at the outcrop on the bank of the creek, and sold the coal therefrom from time to time, as it was purchased by the people in the neighborhood who desired it, employing coal diggers when necessary for the purpose, and continued said operations and the selling of said coal to the people in the neighborhood who desired it until about 1915", when the demand ceased because natural gas became available as fuel in that neighborhood. Both the Breedloves and Hales have paid taxes in fee on the property.

Notwithstanding his sale and conveyance to Breedlove and wife by deed of March 1, 1881, Stone, five months thereafter, entered into the following compromise agreement with the successors to Kennard's interests, to-wit: '' Memorandum of Agreement made this 1st day of August, 1881, between John W. Stevens of New York for himself and as attorney for E. Morgan of Connecticut, and Samuel S. Stone of Lincoln County, West Va. The conditions of this agreement are that the said Stevens & Morgan agree to make a release or deed to said Stone for the following tracts of land that are within the bounds of Putney tract * * * and to release and discharge the said Stone from a suit in the United States Court at Charleston in which-J. S. Kennard and P. M. Gardner are plaintiffs, and said Stone is one of the defendants, and the said Stone agrees to make a release or deed to said Stevens & Morgan for all the mineral and coal in said...