Clark v. Whitfield

• Decision Date: 20 December 1928
• Docket Number: 2 Div. 914
• Citation: 218 Ala. 593,119 So. 631
• Parties: CLARK et al. v. WHITFIELD et al.
• Court: Alabama Supreme Court

119 So. 631

218 Ala. 593

CLARK et al. v. WHITFIELD et al.

2 Div. 914

Supreme Court of Alabama

December 20, 1928

Rehearing Denied Jan. 24, 1929

Appeal from Circuit Court, Bibb County; Thomas E. Knight, Judge.

Bill in equity for sale of land for division of proceeds by Sallie W Whitfield, the Bessemer Coal, Iron & Land Company, and others, against Julia F. Clark and others, with cross-bill by respondents. From the decree, respondents appeal. Affirmed.

Jerome T. Fuller, of Centreville, and Stokely, Scrivner, Dominick &amp Smith, of Birmingham, for appellants.

Percy Benners & Burr, of Birmingham, for appellees.

FOSTER J.

This is the second appeal in this case. The first appeal is reported in 213 Ala. 441, 105 So. 200. The bill was amended to meet the opinion of this Court and came on for final hearing and decree.

It is a bill for the sale of mineral land for division. The sale was made, and the Bessemer Coal & Land Company became the purchaser for $20,000. The Bessemer Company owned an undivided one-twelfth interest; appellants owned an undivided five-twelfths, and the other parties, not here complaining, own a half. The Bessemer Company has worked the Woodstock seam at Belle Ellen, and it is claimed leased the Youngblood seam to the Masena Company and the Thompson seam to the Clifton Company. The Bessemer Company had prior to the sale mined from the Woodstock seam 74,351 tons of coal as found by the special master. The date of the sale was March 13, 1926. The master also found that the Bessemer Company had mined 20,863 tons between that date and July 21, 1926, the date of the confirmation of the sale. But the master and trial court declined to allow any damages for waste covering the value of such coal taken between said dates.

The decree of the court appointed a special master. Appellants do not insist there was error in the order of sale of the land, but erred in appointing a special master and in referring the case to him to state an account between the Bessemer Company and each of appellants, charging said company with waste for coal taken from the three seams and not accounted for and paid for. It is insisted that thereby the court referred to a master the determination of one of the principal equities. In this we cannot agree. The master was not directed to find and report anything but facts incidental to the relief which the court had decreed. The equities consisted of the interest of each party, and that the land could not be partitioned without a sale. This the court found and decreed. The state of accounts growing out of waste was not a primary equity, but merely incidental to relief primarily decreed, and quite appropriately referred to a master. In a decision of this court, recently rendered (Cone v. Bargainier, 118 So. 342), it has again approved such a proceeding in aid of its decree.

It is next insisted that there was error in confirming the report of sale of the property. This was after extensive advertising, and at public outcry, with no effort to show any character of unfairness. One of the complainants testified that it was worth $100,000. A witness employed by complainants to examine the property testified it was worth $80,000. His examination consisted of about a half day's visit; he had not operated in the immediate coal district for many years before then. His testimony showed that his opinion did not give due regard to actual conditions which existed there. On the other hand, B.F. Roden, H.L. Badham, president of the Bessemer Company, Walter E. Henley, president of the Birmingham Savings & Trust Company, and Dr. C.W. Randall, president of the Masena Company, and L.W. Geoheagin, general manager of the Gulf States Steel Company, all experienced coal operators in that particular district or familiar with such operations, testified that $20,000 was a fair and reasonable price. Since the sale, no one has offered more, and everybody had a full opportunity at the sale. The master's finding was in accord with the evidence, and besides the witnesses were examined orally before him. He reported that the evidence was "clear and convincing to his mind that the $20,000 bid for said property was a fair and adequate price." Indulging the proper presumption in favor of the report of the special master on reference ordered by the court, and on objection to confirmation of the sale, and considering the evidence before the master, we cannot say that the court erred in confirming the report. Buttrey v. Buttrey (Ala.Sup.) 118 So. 282; Cone v. Bargainier (Ala.Sup.) 118 So. 342.

Appellants next insist that the court should have charged the Bessemer Company with the value of 20,863 tons of coal mined between the date of purchase and the date of confirmation. They cite no authority to sustain this principle, but merely state their contention. The question has been decided by this court contrary to appellants' contention in our cases of Patten v. Swope, 204 Ala. 169, 85 So. 513, and Thomas v. Caldwell, 136 Ala. 518, 34 So. 949. After confirmation the title and rights of the purchaser relate back to the date of the sale. He must bear the losses that intervene and is entitled to the intervening benefits and advantages. We think it only necessary to cite our decisions which determine that question.

As above stated, the master has found and reported the amount of coal mined by the Bessemer Company in the Woodstock seam. The land was chiefly, if not solely, valuable for the coal in it. The master found that seven cents per ton was a reasonable amount to be accounted for by the Bessemer Company for such operations. The court confirmed the report and decreed an accounting accordingly. Appellants complain that they did not get the value of the coal after its severance as it lay in the mine. They have cited authorities sustaining the doctrine that under certain circumstances a tenant in common may sue in trover for the conversion of jointly owned personal property. They also cite the rule that, as against an inadvertent tort-feasor, the measure of damages in trespass to land is the value of the property severed from the freehold as it lay, immediately following its severance. The rules cited are certainly well established, but do not measure the liability of one tenant in common to another for waste committed while in possession of a freehold owned by cotenancy. At common law the nature of such remedy was by an action of account or bill in equity for an account. He was not treated as a tort-feasor. Darden v. Cowper, 52 N.C. 210, 75 Am.Dec. 461, cited in our case of Sanders v. Robertson, 57 Ala. 471, with the following quotation: "If a tenant in common receives more than his share of the profits, by an excessive use of the property, as by wearing out the land, or by an improper use of it, as by cutting down the timber and selling it, he cannot be treated as a tortfeasor, but the remedy of the co-tenant is by an action of account, or, a bill in equity for an account." This rule is stated also in 7 R.C.L. 898. Early statutes in England, adopted in American jurisdictions, gave rise to an action on the case for waste, called an action for waste. 7 R.C.L. 899. The duty to account by one tenant in common to another for depletion and destruction pro tanto, without the consent of the latter, is waste. Clark v. Whitfield, 213 Ala. 441(13) 105 So. 200 (the former appeal in this case); 38 Cyc. 89; Freeman on Cotenancy, p. 329, § 249 (a); 7 R.C.L. 898.

An action at law for waste, or, as here, in equity for an accounting for waste, has a clear and distinct field of operation as between tenants in common of real estate. The courts have not held the action of trover for the conversion of what is severed as properly applicable to the relation of tenants in common. The doctrine of waste is also applied to other relations, such as landlord and tenant, and mortgagees in possession, where like rules obtain. American Freehold Land & Mtg. Co. v. Pollard, 132 Ala. 155, 32 So. 630; Perdue v. Brooks, 85 Ala. 459, 5 So. 126. The following quotation from Freeman on Cotenancy, § 249-a, is directly in point here: "As a general proposition each cotenant is entitled to use, and every cotenant is forbidden to injure or destroy the common property. Every use, however involves some slight injury or destruction; and in the case of mining property there can be no valuable use without a removal, and, in effect, a destruction of a part of the common property. Some of the cotenants may desire to operate the mine, while the others may be unwilling to do so. The property is obviously of no value, except for the purposes of sale, unless it...