Ferrell v. Deverick
| Citation | 100 S.E. 850 |
| Court | West Virginia Supreme Court |
| Decision Date | 01 February 1919 |
| Parties | FERRELL et al. v. DEVERICK et al. |
(Syllabus by the Court.)
Appeal from Circuit Court, Roane County.
Suit by T. J. Ferrell, in his own right and as guardian of his minor children, Fannie M. Ferrell, his wife, and others, against C. H. Deverick, such minor children, and others. From two decrees entered in the cause in favor of plaintiff United Fuel Gas Company, defendant C. H. Deverick appeals. Affirmed.
Thos. P. Ryan, of Spencer, for appellant.
Carl C. Douthitt, of Huntington, and R. G. Altizer, of Charleston, for appellees.
LYNCH, J. C. H. Deverick, believing his interests imperiled thereby, has appealed to this court to review and reverse two decrees entered March 5, 1918, in the chancery cause brought by T. J. Ferrell, in his own right and as guardian of the minor children of himself and his wife, Fannie M. Ferrell, coplaintiff with him and others, against Deverick, the minor children of the Ferrells, and others, codefendants, the chief object of which was the validation or legalization of an oil and gas lease executed by the plaintiffs, Deverick, and others January 1, 1916, to United Fuel Gas Company, covering a tract of 115 acres of land in Roane county. The title to the land leased, so far as now concerned, originated in a deed dated January 3, 1S99, by Harrison B. Smith, acting as special commissioner and in his own right, to Fannie M. Ferrell, the wife of Thomas J. Ferrell, and their children, then and now minors, whereby Fannie M. Ferrell acquired a freehold estate for her life in the land, and the children of herself and her husband who should survive her an estate therein In remainder. Mrs. Ferrell and her husband are now living and are the parents of the infant defendants named in the bill in this cause. The language of the granting clause is:
"Doth grant unto the said Fannie M. Ferrell, wife of Thomas J. Ferrell, during the term of her natural life, remainder at death to such children of the said Fannie M. Ferrell by her husband, Thomas J. Ferrell, as may survive her."
The life tenant and her husband, no doubt acting in the utmost good faith, on February 20, 1906, undertook to convey the fee-simple title to the land to A. T. and S. R. Ferrell. neither grantee being a contingent remainderman, but reserved one-third of all oil, gas, and minerals underlying the tract with operating rights and privileges and all rentals and royalties arising from the one-third of all oil, gas, and minerals. The futility of that instrument to accomplish the object contemplated by the grantors, who deemed themselves competent thereby to pass the fee-simple title to the land to the grantees, prompted them, when advised of the lack of power to effect the purpose intended, to institute in the circuit court of Roane county the sum-mary proceeding authorized by chapter 83 of the Code (sections 3961-3978, Code 1913) to obtain permission to do what they had vainly essayed to do without such permission, with the result that the court empowered the guardian of the contingent remaindermen to execute to the grantees in the unauthorized deed what it was assumed would be a valid conveyance of the fee-simple title to the 115 acres of land, and the guardian did make, execute, and deliver to the grantees a deed, dated September 25, 1912, such as the court granted him permission to make, subject, however, to the reservations contained in the deed of February 20, 1906.
The grantees in these deeds, A. T. Ferrell and S. R. Ferrell, the one by the life tenant and her husband alone, the other by her husband as the father and guardian of their infant children, joined in a deed dated October 1, 1912, purporting to grant to C. H. Deverick, appellant, the fee-simple title to the 115-acre tract, reserving, however, "two-thirds (%) of the oil, gas, and other minerals, within and underlying said tract of land, which is hereby reserved and excepted from the operation of this deed." And on January 1, 1916, A. T. and S. R. Ferrell, C. H. Deverick, Fannie M. Ferrell, the life tenant, and T. J. Ferrell, her husband and the guardian of their children, joined in executing to the United Fuel Gas Company an oil and gas lease covering the 115 acres.
To remove such doubt as may have existed as to the efficacy of this lease to accomplish the end aimed at by the parties thereto, and to obtain a judicial confirmation thereof, so as to render it invulnerable from attack for lack of competency on the part of the lessors, plaintiffs instituted this suit and obtained the decrees now here for review upon appeal.
Of the 16 specific assignments in the petition for the writ, only 11 of which are mentioned in appellant's brief, the points really demanding attention are the sufficiency of the bill, and the right of the court (a) to appoint its clerk guardian ad litem; (b) to allow proof to be taken at the bar of the court and in its hearing, and to read and consider the proof, when so taken, in passing upon the merits of a cause brought and prosecuted, as this is, under the authority of section 24b. (1) et seq. c. 71, Code; (c) to lease land without the consent of an adult interested therein with contingent remaindermen, and thereby annul a lease already executed by him to the proposed lessee. These grounds of error we propose to discuss briefly and dispose of in the order stated; first, however, announcing our purpose not to enter upon a consideration of the merits of the cause, for the purpose of adjudging the extent of the interests Of Fannie M. Ferrell, the life tenant, under the deed of January 3, 1899, as affected by the subsequent deeds and lease in which she joined, or of A. T. and S. R Ferrell, the grantees of herself and husband in the deed of February 20, 1906, as affected by the subsequent deed, and lease in which they also joined, or of C. H. Deverick, grantee of the deed of October 1, 1912, as affected by the lease of January 1, 1916, in which he likewise joined. The rights of these parties these instruments definitely fixed and they have acquiesced in the shares as so established. But we do discover and in another connection later note a concession to Deverick in the lease of January 1, 1916, in excess of the interest allowed him by the decrees complained of—Indeed, in excess of the interest to which he is entitled, even in the aspect of the case most favorable to him.
We look in vain for defects in the bill, and counsel for Deverick points to none such as warrant a ruling on the demurrer thereto different from that shown in the decree overruling it. Nor do the decisions cited sustain the proposition stated by him as to the right of a court to appoint its clerk guardian ad litem for an infant who is a defendant in a cause pending therein. They do not question the propriety or legality of such an appointment, except inferentially, and say only that—
"Where an infant is not able to obtain a responsible guardian, or where no one will consent to act for him, and in other proper cases, the court may appoint one of its own officers" (22 Cyc. 652), or, "if none can be found to accept the appointment or appear for the infant, it is the duty of the court to appoint one of its officers, whom they can control, and see that he enters an appearance" ( .
In Fisher v. Lyon, 34 Hun, 183, the question was not whether the court lawfully could appoint its clerk guardian ad litem, but whether it could dispense with the security required by statute of such guardians. In Brown v. The Henry Pratt, 4 Fed. Cas. 384, the decision rested on a rule of court requiring guardians ad litem to give security for costs the same as if personally the parties in interest, the court saying:
"As a general rule guardians ad litem cannot, in admiralty, be excused from giving the ordinary stipulations, and if it be necessary to assign a guardian by the court, the party not being able to produce a responsible person, the court would confer the trust on some standing officer, and then discharge him of the liability for costs."
There appears to us no sound reason, and appellant advances none, and no authority cited or found states any, for reversing a decree solely because the court rendering it appointed its clerk to represent the infant defendants and safeguard their rights and interests in the litigation.
As to the right to permit testimony to be taken at the bar of the court and to consider it in determining the rights of the parties to a cause prosecuted under the sectionsof the statute cited, nothing further scarcely need be said than that the statute itself— section 24b.(7), c. 71, Code—amply warrants...
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