Conrad v. Morehead

• Decision Date: 31 October 1883
• Citation: 89 N.C. 31
• Court: North Carolina Supreme Court
• Parties: W. P. CONRAD and others v. J. L. MOREHEAD and others.

89 N.C. 31

W. P. CONRAD and others

v.J. L. MOREHEAD and others.

Supreme Court of North Carolina.

October Term, 1883.

CIVIL ACTION removed from Davidson and tried at July Special Term, 1882, of GUILFORD Superior Court, before Gilliam, J.

The plaintiffs are the heirs of Henry Conrad and the defendants are the administrators of John M. Morehead.

On the 14th day of February, 1833, the said Conrad and Morehead executed a deed containing mutual covenants, in which Conrad leased to Morehead all that tract of land lying on Four Mile branch in Davidson county (describing it), containing one hundred and sixty-five acres, more or less, for the term of ninety-nine years, to have and to hold the same, together with all its mines, minerals, &c., to the said Morehead, his heirs and assigns, during said term of ninety-nine years from this day ensuing, and fully to be completed and ended. And Conrad, for himself and heirs, covenanted with Morehead and his heirs, that the latter may at all times enter upon the land and dig into and upon the same, and search for gold, silver and all other metals and minerals, and the same when found, to use, work and obtain; and to use all such timber as may be required for mining purposes, building, &c., erect machinery and use the water, &c.; and at or before the expiration of this lease, the said Morehead or his heirs may renew the same for the same length of time, and that he or they may, at any time when they think proper, surrender this or any other subsequent lease. And Morehead, for himself and heirs, covenanted to pay one tenth part of all the gold and silver, or other metals that may be procured from said land, and to account for the same quarterly, if so required.

The other stipulations are not material to the case. The instrument was signed and sealed by Henry Conrad and John M. Morehead.

The plaintiffs claim title to the said land, and have brought this suit to have the same sold by order of the court for partition.

The case states that, after the above mentioned deed was made, Morehead opened one or more shafts on the land to mine gold, which were worked by hand for some years, and he then erected machinery, engine-houses and other buildings necessary for more extensive operations, which he carried on until the last of the year 1849, when he ceased to mine the property. The engines and machinery were moved off the land in 1855. He left the property in care of one Younce, his agent, who lived about a mile from it, and kept the keys of the houses, and saw that they were kept occupied for Morehead until his death in 1866, and for the defendants, his administrators, after his death and until 1877, by which time all the houses had decayed and become unfit for occupancy. While Morehead operated the mines, he collected a quantity of mineral specimens to be exhibited to persons wishing to buy the property, and left the same after the year 1849, with his said agent, to be exhibited. The defendants, after the death of their ancestor, and up to 1876, visited and claimed the mines and endeavored to sell the said lease.

The plaintiffs' ancestor had possession of the cultivated parts of the tract up to his death in 1835, and they at all times since.

The property is believed to be very valuable for mining purposes.

In 1879, before suit was brought, the plaintiffs offered the absolute title to it at public sale, after due advertisement, for partition, when the defendants forbade the sale, claiming the right to the property under the said lease to the expiration of the term.

Conrad, during his life, and the plaintiffs, since his death, have paid the taxes on the property; and in 1878 the plaintiffs took actual possession of the whole of it, and worked the mines and found gold, and, at the commencement of this suit, had actual and exclusive possession.

His Honor, upon consideration of the facts, refused the judgment demanded, and ordered that the action be dismissed, and the plaintiffs appealed.

Messrs. Scott & Caldwell, for plaintiffs .

Messrs. Dillard & Morehead, for defendants .

MERRIMON, J.

The deed before us creates a lease for ninety-nine years, determinable, before it expires by its own limitation, at the will of the lessee. By its terms the lessee might surrender the lease at any time during its continuance. Doe v. Dixon, 9 East., 15; 4 Wait, Ac. & Def., 203; Arch. L. & T., 93.

The lease, however, might be determined by a forfeiture of the same. What causes work such a forfeiture, depends upon the covenants contained in the lease, express or implied. The right of a landlord to enter for a forfeiture of a term by the tenant, arises, either by implication of law without any stipulation upon the subject between the contracting parties, or where it is matter of express stipulation in the deed or contract, under which the...