Consolidation Coal Co. v. Yonts

• Decision Date: 03 April 1928
• Docket Number: No. 4763.,4763.
• Citation: 25 F.2d 404
• Parties: CONSOLIDATION COAL CO. v. YONTS et al.
• Court: U.S. Court of Appeals — Sixth Circuit

25 F.2d 404 (1928)

CONSOLIDATION COAL CO. v. YONTS et al.

No. 4763.

Circuit Court of Appeals, Sixth Circuit.

April 3, 1928.

Allen Prewitt and E. C. O'Rear, both of Frankfort, Ky. (O'Rear, Fowler & Wallace, of Frankfort, Ky., on the brief), for appellant.

Sawyer A. Smith, of Covington, Ky., and Felix G. Fields, of Whitesburg, Ky., for appellees.

Before DENISON and KNAPPEN, Circuit Judges, and HICKS, District Judge.

HICKS, District Judge.

This is a suit in equity brought by the Consolidation Coal Company against Squire L. Yonts, Mary F. Arnett, James Yonts, Sarah Yonts, Lucretia M. Cornett, James M. Yonts, Clara W. Yonts, Roy E. Yonts, Lucia Q. Belt, Crit Yonts, Beatrice Falls, Wesley Yonts, George Hogg, David Hays, Newt Reynolds, and J. H. Snyder. The presence on the record of the defendants Newt Reynolds, J. H. Snyder, George Hogg, and David Hays is not essential to a determination of the issues, and these defendants will not therefore be further noticed. The defendants James and Sarah Yonts are husband and wife. The defendant Squire L. Yonts is their son. The defendant Mary F. Arnett was formerly the wife of Squire L. Yonts. The defendants Lucretia M. Cornett, James M. Yonts, Clara (Clora) W. Yonts, Roy E. Yonts, Lucia (Lausia) Q. Belt, Crit Yonts, Beatrice Falls, and Wesley Yonts are the children of Squire L. Yonts, and Mary F. Arnett, formerly Yonts.

Prior to November 24, 1894, Sarah Yonts was the owner in fee of the land in controversy in this suit. This land is located on Boones fork of the north fork of the Kentucky river in Letcher county, Ky. On November 24, 1894, James and Sarah Yonts executed to their son Squire L. Yonts, and his then wife, Mary Yonts, an instrument which is here copied as follows:

"This November 24, 1894.

"Know all men by these presents, that we James Yonts and wife Sarah Yonts have this day conveyed, sold and donated a certain tract or parcel of land to Squire L. Yonts and wife Mary Yonts and the heirs of his body as his part of the lands belonging to us in Letcher county, Kentucky, lying on the waters of Kentucky river and is bounded as follows, to wit:

"Beginning on a white oak standing near the creek at the mouth of the Still House branch running with the said branch to opposite a big hickory standing of the left hand side of said branch ascending and running with a straight line to the top of a spur to a chestnut oak running with the top of the spur to a back line down to the branch thence with the back line to the top of the spur, thence with conditional line between said Yonts and wife and Allen Hall to the creek, thence with the creek to the beginning, containing 50 acres more or less.

"To have and to hold all the lands in said boundary for his part of said estate accepting timber for farming purposes not including on the other lands, but, said boundary of lands is to stand in care of said James Yonts and Sarah Yonts till her death, then this bond is to be their signature to a deed and said boundary is not to be sold nor to be disposed of by either parties during the said parties' of the first parts lives.

"James Yonts. "Sarah Yonts, X "Attest "Amous H. Bertrand. "Nancy C. Yonts."

This instrument was never acknowledged, but was registered. The District Judge interpreted it as a deed conveying the land to Squire L. Yonts and Mary Yonts, but retaining a life estate in the grantors James and Sarah Yonts.

On December 31, 1901, Sarah Yonts and James Yonts, her husband, Squire L. Yonts, and Mary F. Yonts, then his wife, joined in the execution of a title bond or "agreement for rights," agreeing to convey to Midland Coal & Iron Company, one of the predecessors of plaintiff, the mineral rights in this tract of land. This bond is copied at page 80 of the record, and constitutes a portion of the statement of evidence. It is also referred to in the bill, and the bill states that a copy "is annexed hereto marked `Exhibit A.'" The copy, however, does not appear as an exhibit to the bill.

On April 7, 1902, the same parties, to wit, S. L. Yonts and M. F. Yonts, his then wife, and James and Sarah Yonts, husband and wife, executed to the Midland Company another title bond or "agreement for rights" for the mineral interest in what appears to be substantially the same tract of land. A copy thereof is filed as Exhibit A to the bill and also as Exhibit B to the statement of the evidence.

On December 13, 1902, in fulfillment of these title bonds or agreements, Sarah Yonts and James Yonts, husband and wife, executed to Northern Coal & Coke Company, as successor of the Midland Company and predecessor of plaintiff, a deed conveying said mineral interests. The execution of this deed was acknowledged by said Sarah and James Yonts and duly registered. It was never executed by Squire L. Yonts and his then wife, Mary Yonts, although an inspection of it indicates clearly that it was contemplated that they should do so. Their names appear as grantors therein, and they are described in the deed as "being joint owners." This deed contains the further provision:

"Mary Yonts, wife of Squire L. Yonts, and Henrietta Yonts, wife of Robt. Yonts married women, who unite in this conveyance, do so for the purpose of, and do, hereby convey and release any and all interest they have, or may have in and to said property, rights and privileges herein bargained, sold, granted or conveyed, including that of fee in part and homestead and dower in remainder."

At the hearing, plaintiff relied upon these title bonds or "agreements for rights" and upon the deed of December 13, 1902, from Sarah and James Yonts, husband and wife, to plaintiff's predecessor, Northern Coal & Coke Company, and plaintiff insists that based thereon it is entitled to a decree adjudging it the owner of the coal under such land and to an injunction restraining the defendants Mary F. Arnett, formerly Mary F. Yonts, and her children from asserting any title or claim thereto. In other words, the suit is one to quiet title. After the execution of the instrument of November 24, 1894, Squire L. Yonts and wife, Mary, occupied this land as a home. They moved on it on March 15, 1895. They cleared certain portions of it, and cultivated and planted an orchard there, and lived together on the lands continuously with their children, defendants herein, until 1907, when Mary F. Yonts secured a divorce from Squire L. Yonts and a judgment for alimony in the sum of about $1,800. Mary F. Yonts has continued to live on the land with the children, defendants herein, since that date. She remarried to a man named Arnett.

On May 5, 1911, James Yonts and wife, Sarah, and S. L. Yonts, their son, conveyed this tract of land to Mary F. Yonts, the divorced wife of S. L. Yonts, and to their children. Mary F. Yonts took only a life estate. This instrument was properly acknowledged and registered. The consideration for it was the settlement of a judgment for alimony which Mary F. Yonts had procured against S. L. Yonts in 1907. The defendant Mary F. Arnett, formerly Mary F. Yonts, and the other defendants, children of S. L. Yonts, and his then wife, Mary, rely upon the instrument of November 24, 1894.

Upon the hearing, the District Judge dismissed the bill. He treated that feature of the case seeking to quiet title or remove cloud as beyond the jurisdiction, because he conceived that the plaintiff was not in possession. Frost v. Spitley, 121 U. S. 552, 7 S. Ct. 1129, 30 L. Ed. 1010. It is not clear that the plaintiff was out of possession, in view of the general rule that possession of the surface is deemed to be held for the owner of a severed mineral right, and further because, under the construction placed upon the instrument of 1894 by the District Judge, James and Sarah Yonts became life tenants, and Squire L. Yonts and wife, Mary Yonts, became their tenants at will, and the surface possession by Squire L. Yonts and Mary Yonts would not be presumptively adverse as against James and Sarah Yonts or their rightful grantees. There is the further important consideration that Squire L. Yonts and Mary Yonts joined James and Sarah Yonts in the execution of the above-mentioned title bond or "agreement for rights," and their continued surface possession thereafter could hardly be presumed to be adverse to the claim of the grantees to the mineral interest. However, this matter of jurisdiction for lack of an adequate remedy at law was, in our opinion, waived, because it was not insisted upon by the defendant at the hearing. Alliance Ins. Co. v. Alper-Salvage Co. (C. C. A.) 19 F.(2d) 828.

We come, therefore, to the material inquiry, to wit, did the...