Coaldale Min. & Manuf'g Co v. Clark

• Decision Date: 15 March 1897
• Citation: 27 S.E. 294,43 W.Va. 84
• Court: West Virginia Supreme Court
• Parties: COALDALE MIN. & MANUF'G CO. v. CLARK et al.

27 S.E. 294

43 W.Va. 84

COALDALE MIN. & MANUF'G CO.

v.CLARK et al.

Supreme Court of Appeals of West Virginia.

March 15, 1897.

Mixing Lease —Construction — Trust Deed — Assignment for Benefit of Creditors.

1. T. leases from C. and others a tract of land for the purpose of mining and shipping coal therefrom, and assigns the lease to the C. M. & M. Co. The lease provides a royalty or rental to the lessors of 10 cents for every ton of 2, 000 pounds of coal which should pass over the screen mentioned in the lease, and 5 cents per ton for every ton which passed through the screen, and which should be shipped from the demised premises; and it further provides that the lessee should pay to the lessors the sum of $3,000 annually as a minimum rental thereunder, whether the quantity of coal produced that amount of rental or not. A distress warrant being sworn out, then a receiver appointed, the works were closed, with five months' rental unpaid for which time the royalty on the coal actually mined amounted to $100 per month, making in all $500, which amount was decreed to the lessors. Held, that the true amount due the lessors was five-twelfths of $3,000, or $1,250, which should have been decreed to them for unpaid royalty.

2. A coal company operating mines, with assets exceeding its liabilities by at least $5,000, or 25 per cent., its assets consisting of a good plant for operating its works, with approved machinery and outfit, and a favorable contract for the sale of its whole output,, and executing a deed of trust to secure the sum of $6,000 on its leasehold and all its property, $4,500 of which is, at the time of the execution of the trust, money advanced for machinery and improving the works, and the principal part of the residue of $1,500 being for royalty due to that date, and $6,000 being a part of the liabilities, it is error to decree the insolvency of the company, and to declare the deed of trust a general assignment for the benefit of all the creditors of said company.

3. There can be no decree without allegations in the pleadings to support it.

(Syllabus by the Court.)

Appeal from circuit court, Wayne county.

Bill by the Coaldale Mining & Manufacturing Company against E. W. Clark and others. Decree for plaintiff, and defendants appeal. Reversed.

J. S. Clark and Vinson & Thompson, for appellants, cite: Code 1891, c. 74, § 2; 11 Minor, Inst. 678 (604); Gordon v. Cannon, 18 Grat. 387; Savings Inst. v. Thomas, 29 Grat. 483; Harden v. Wagner, 22 W. Va. 356; Leonard v. Smith (W. Va.) 12 S. E. 479; Refining Co. v. Quinn, 39 W. Va. 535, 20 S. E. 576; McArthur v. Chase, 13 Grat. 683, 691; Code 1849, p. 583; Farthing v. Carrington (N. C.) 22 S. E. 9; 19 Am. & Eng. Enc. Law, p. 3; Hutchinson v. Murchie, 74 Me. 187; Meier v. Flinsback (Ky.) 24 S. W. 235; Sabin v. Fuel Co. (Or.) 35 Pac. 854.

McWHORTER, J. On the 10th day of February, 1892, H. J. Toudy took from E. W. Clark and others, trustees, a lease in writing of 1, 500 acres of land in Wayne county, W. Va., for the purpose of mining and shipping coal. By the terms of the lease it was provided, among other things, that the royalty or rental to be paid was 10 cents for each and every ton of 2, 000 pounds of coal passing over a screen described in the lease, and 5 cents per ton for every ton which passed through the screen, and which should be shipped from the demised premises. And It was further provided and agreed that the lessee should pay to the lessors the sum of $3,000 annually from the completion of the railroad to the leased premises during the continuance of the lease, as a minimum rental thereunder, whether the quantity of coal produced that amount of rental or not. On the 1st day of March, 1892, the lessee, H. J. Toudy, with the consent of the lessors, made In writing, transferred and assigned the said lease, with all his "rights, titles, and interest and privileges" thereunder, to the Coaldale Mining & Manufacturing Company, which assignment was duly accepted by said company. On the 13thday of May, 1803, the said Coaldale Mining & Manufacturing Company executed a deed of trust to Stephen E. Haas, trustee, conveying the said lease, together with all the tenements, machinery, buildings, improvements, etc., placed on said leased premises, to secure to E. W. Clark and others, trustees, the sum of $6,000, with interest at the rate of 6 per centum per annum, to be paid to said trustees, their successors, heirs, or assigns, on or before the 15th day of May, 1808, in the following manner, to wit, 10 cents per ton for every ton of coal mined from the leasehold premises from and after the 1st day of November, 1893, the payments to be made on the 20th day of the months of January, April, July, and October in each year, each of said payments to be for the coal mined during the three calendar months immediately preceding the 1st of the month in which said payment is made until the whole of said $6,000 should be paid; and the interest was to be paid quarterly at the same times; and it was further provided that, in default of said quarterly payments of principal or interest, the said cestuis que trustent should have the right to declare the whole of said $6,000, or so much thereof as should then remain unpaid, to be due and payable, and require the trustee to proceed to sell under the trust deed, according to the terms thereof.

It appears from the evidence in the cause that the $6,000 secured by said trust deed was represented by cash advanced at the time $4,500, and about $1,500, the amount of rental or royalty on coal mined up to that time, and other small accounts due from the company. On July 13, 1893, the said E. W....