Comley v. Ford
| Decision Date | 30 March 1909 |
| Parties | COMLEY et ux. v. FORD. |
| Court | West Virginia Supreme Court |
Submitted September 10, 1908.
Syllabus by the Court.
An instrument, granting the right to mine and remove the coal in a tract of land for a period of years, and "to take all necessary, usual, or convenient means for working and taking away the said coal," creates an estate for years in the land.
[Ed Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 176-180; Dec. Dig. § 62. [*]]
If the term, so created, be for more than five years, it cannot be assigned otherwise than by deed or will.
[Ed Note.-For other cases, see Mines and Minerals, Cent. Dig. §§ 181-184; Dec. Dig. § 64. [*]]
The assignee of the lessee is liable to the lessor for the rent reserved in the lease if he covenant or agree to pay the same, or privity of estate between him and the lessor be established, but not otherwise. He is not liable to the lessor unless privity of contract or estate between him and the latter exists.
[Ed Note.-For other cases, see Mines and Minerals, Cent. Dig. § 182; Dec. Dig. § 64. [*]]
To constitute privity of estate, the assignee must acquire the legal title to the term or take possession of the premises. In the latter case his possession constitutes sufficient title to establish the relation of privity of estate, and makes him liable for the rent as long as it continues, unless he shows he is in merely as undertenant.
[Ed Note.-For other cases, see Mines and Minerals, Cent. Dig. § 182; Dec. Dig. § 64. [*]]
For other definitions, see Words and Phrases, vol. 6, p. 5609; vol. 8, p. 7764.]
The mere recital in the testimonium clause of an instrument, signed and delivered for a deed, that the parties have affixed their seals, is not sufficient to make it a sealed instrument, if no seal or scroll, mark, or word equivalent thereto is annexed to the signatures, and the instrument is not a deed.
[Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 99-103; Dec. Dig. § 46. [*] ]
For other definitions, see Words and Phrases, vol. 7, p. 6373.]
Error to Circuit Court, Monongalia County.
Action by James A. Comley and wife against Wesley Ford. Judgment for defendant, and plaintiffs bring error. Affirmed.
Lazzelle & Stewart, for plaintiffs in error.
Goodwin & Reay, Moreland & Moreland, and Cox & Baker, for defendant in error.
James A. Comley and wife brought an action of assumpsit in the circuit court of Monongalia county to recover from Wesley Ford the sum $2,000 as a minimum royalty reserved upon a lease of a certain tract of coal. A demurrer to the original declaration was sustained, and it was amended. The court overruled the demurrer to the amended declaration and each count thereof, whereupon certain special pleas were tendered and rejected. Then the case was submitted to the court on an agreed statement of facts, and there was a finding for the defendant. The court seems to have thought the declaration insufficient, since leave was given to amend, and the order recites that it was amended because the plaintiffs may have been misled by the overrulling of their demurrer. They declined to amend and obtained a writ of error to the judgment against them. Ford was not the lessee. The lease had been executed to William T. Coburn, who, with his wife, assigned it to Ford by a written instrument, in which they recited that they had affixed their seals, but which bears none. The lease granted to Coburn, for a period of 12 years from the date thereof, the right to mine and remove all the coal under a certain tract or parcel of land containing 95 acres and 155 poles. This coal the lessors had reserved and excepted from a conveyance of the land which they had executed to one Millholland. The reservation of the coal and mining rights was expressed in the deed to Millholland in the following terms: "But the grantors save and except from the operations of this conveyance all coal *** under the premises hereinbefore described, with powers for the parties of the first part, their heirs and assigns, to take all necessary, usual or convenient means for working and taking away the said coal *** excepting that the said parties of the first part agree that the mining rights and privileges so saved and excepted, from the operations of this conveyance, shall not be exercised in such manner as to interfere with the construction operation of any railroad which may be built over the said premises by the said party of the second part, his heirs and assigns." After incorporating this provision of the Millholland deed, the lease proceeds as follows: "The said parties of the first part do, therefore, grant unto the said party of the second part all the rights, privileges, and easements for the purpose of mining and removing said coal from the tract of land hereinbefore described, which the said parties of the first part have by reason of the reservation in the conveyance to the said James A. Millholland." The lessee covenanted and agreed to mine and remove all the coal under the land, consisting of three veins, known as the Pittsburg, Red Stone, and Sewickley or Mapletown, paying at the rate of eight cents per ton for the coal in the first, six cents for the coal in the second, and five cents for the coal in the third, and also to mine not less than 25,000 tons each year after the year 1905, and to pay the royalty on said quantity each year after 1905 during the life of the term, whether he mined any coal or not, with the understanding that the sum paid in any year in which no coal should be mined was to be credited upon coal mined in any subsequent year. The lease was dated February 15, 1905, and was to become void if the lessee did not on or before the 15th day of September, 1905, pay to the lessors the sum of $500, to be credited as a payment on the first coal mined. Before this became due, Coburn assigned the lease to Ford, who paid said sum of $500 on the 15th day of September, 1905. Neither Coburn nor Ford entered upon the land or did any mining under the lease.
The case may be treated as upon a demurrer to the special count in the declaration founded upon the lease, it being admitted that there is no right to recover under any of the common counts, since there is no covenant on the part of Ford to pay any rent. So treating it, the attorneys for the defendant in error say (1) there is no privity of contract, nor (2) privity of estate, and that, therefore, there can be no recovery from the assignee. The contention against the privity of estate is based upon the double view that the instrument relied upon as a lease grants a mere mining privilege, and creates no estate in the land to which there could be succession, and that the term, if any, is for more than five years and can be conveyed only by deed or will, and the instrument of assignment, not being under seal, is not a deed.
The paper executed by Comley to Coburn differs from the ordinary mining lease, such as was construed in Harvey Coal & Coke Co. v. Dillon, 59 W.Va. 605, 53 S.E. 928, 6 L.R.A. (N. S.) 628, and Toothman v. Courtney, 62 W.Va. 167, 58 S.E. 915, and other cases referred to in those decisions, in this: that it does not in terms demise, let, and lease a tract of land for mining purposes. It grants the right to mine and remove the coal, and all the rights, privileges, and easements reserved in the Millholland deed, which include all the necessary, usual, or convenient means for working and taking away the coal. The use of a portion of the surface is both necessary and convenient in the mining of coal. A grant of the coal or a right to mine the coal carriers with it, by implication, the right to use so much of the surface as may be necessary. This deed expressly gives, not only what is necessary, but what may be convenient as well. The right to use a portion of the surface as well as to mine and take away the coal is given for the period of 12 years. Therefore a term or period of use of the surface land is granted. That it is not granted in express terms is immaterial. A grant by necessary implication is as complete and effective as one made in express terms. Our conclusion, therefore, is that this lease differs from those above referred to in form only, and not in substance, and though it may carry some of the features or elements of a license or privilege, it also carries an estate for years in the land.
That there can be no recovery from the assignee of the lessee until either privity of contract or privity of estate is established on the part of the assignee is uniformly asserted by the authorities. In Railroad Co. v. McIntire, 44 W.Va. 210, 28 S.E. 696, the assignee is said to be liable to the lessor because of his privity of estate. If there were an express covenant on the part of the assignee to pay the rent there would be privity of contract. Taylor on Landlord & Tenant, § 436, says the mere assignment of the lease does not transmit to the assignee any succession in respect to the contract, and therefore does not create privity of contract. But, since he takes the estate of his assignor, the lessee, by an assignment, he becomes liable because of privity of estate, or succession to the estate vested in the lessee by the lease. If the assignment is valid and complete, passing the legal title to the lease, the assignee is liable by reason of his succession, whether he enters into possession or not. Negley v. Morgan, 46 Pa. 281; Washington Natural Gas Co. v. Johnson, 123 Pa. 576, 16 A. 799, 10 Am.St.Rep. 553; Fennell v....
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