Collins v. Abel

• Citation: 44 So. 109,151 Ala. 207
• Parties: COLLINS v. ABEL.
• Decision Date: 28 May 1907
• Court: Supreme Court of Alabama

44 So. 109

151 Ala. 207

COLLINS v. ABEL.

Supreme Court of Alabama

May 28, 1907

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Suit by Joseph B. Abel against James A. Collins. From a decree in favor of complainant, defendant appeals. Affirmed.

Robert N. Bell and Caldwell & Carmichael, for appellant.

Vaughan & Davidson and Smith & Smith, for appellee.

HARALSON J.

The bill was filed by Joseph B. Abel against James A. Collins and sought the cancellation of a certain written lease, of 255 acres of coal land. The consideration expressed in the lease was $1. The lands were leased for the purpose of mining the coal thereunder and all other minerals, and was for the term of 99 years, from the date of the lease, it being the intention of the parties, as expressed in the lease, that the lessee, Collins, should have the exclusive right to the privileges granted, "and that the operation of said mines shall be begun and continued at the discretion of the party of the second part [Collins], and no cessation of operation in mining or availing himself in any other manner of the privileges of the lease, shall operate as a forfeiture thereof," and party of the second part agreed to pay each month, to the party of the first part, his heirs, etc the sum of 3 cents per ton for all coal, ore or oil mined or taken by the party of the second part, and pay the sum of $1 per thousand for all timbers used as props or caps off of said land, and that party of second part, his successors and assigns, should have the exclusive right to operate sawmills on said lands. The lease was signed by complainant but not by respondent.

The bill alleges, that defendant had never taken any steps whatever, for over three years, to mine said coal, nor in any manner, or to any extent, made any effort to comply with any of the provisions of said lease; that said agreement does not show on its face that its terms have not been complied with, nor that it has been forfeited by the lessor; but the failure in these respects, and the forfeiture thereof, are matters to be proven by extrinsic parol evidence; that said instrument is a unilateral agreement and voidable at the option of the lessor, before work has been commenced by the lessee under the agreement; that complainant, before filing this bill revoked said lease contract and declared the same forfeited, and notified the lessee thereof, and demanded a cancellation and surrender of the same, and, at the same time, tendered to him the said sum of $1 and the interest thereon to date, and that the respondent refused said tender, and refused to cancel and surrender said lease contract. Complainant also averred, that he was now, and had been in the adverse and peaceable possession of said land, and that said instrument was a cloud on his title, and depreciated the market value of his lands, and further, that the defendant did not in good faith procure the lease for the purpose of operating the mines, but only for speculation thereon, and the said agreement and the action of defendant in respect thereof, are grossly inadequate and unconscionable.

The prayer of the bill is for a decree adjudging that said instrument is unilateral and void; that the same be removed as a cloud upon complainant's title; adjudging that the same was procured by a fraud practiced upon complainant in its procurement, and ordering that the same be surrendered to the register for cancellation, and that said lease contract be held to be void; and that defendant be perpetually enjoined from transferring or assigning the same, and for general relief.

The defendant moved to dismiss the bill for want of equity, which motion was overruled by the court. The appeal is to reverse that decree.

The insistence of the defendant is, that the instrument is not unilateral, but binding on him, and that he should be allowed a reasonable time to open and develop the mines, and that the lease, as for anything set up, should not be decreed to be forfeited. That of the complainant is, that the instrument of lease is unilateral, and without mutuality of obligation...