Franklin Land Co. v. Wea Gas

• Decision Date: 04 April 1890
• Citation: 23 P. 630,43 Kan. 518
• Parties: THE FRANKLIN LAND COMPANY v. THE WEA GAS, COAL AND OIL COMPANY
• Court: Kansas Supreme Court

23 P. 630

43 Kan. 518

THE FRANKLIN LAND COMPANY v. THE WEA GAS, COAL AND OIL COMPANY

Supreme Court of Kansas

April 4, 1890

Error from Miami District Court.

ACTION to quiet title. Judgment for the defendant Wea Gas, Coal and Oil Company, on December 13, 1887. The Franklin Land Company brings the case here. The facts are stated in the opinion.

Judgment reversed and case sent bact for new trial.

Mechem & Smart, for plaintiff in error.

Sperry Baker, and J. A. Hoag, for defendant in error.

STRANG C. All the Justices concurring.

OPINION

STRANG, C.:

Action to quiet title. July 23, 1886, Robert Dunn and wife Gertrude were the owners of a tract of eighty acres of land near the city of Paola, in Miami county, which they occupied as a homestead. On that day Robert Dunn leased said land to the Wea Gas, Coal and Oil Company for the period of twenty-five years, with the privilege of renewal, at the expiration of said lease, for another period of twenty-five years, giving said company the right to erect derricks, engine houses, and other buildings necessary for use in drilling and prospecting for gas, coal, oil, and other minerals; for storing the product of its mines; and of excavating mains and laying pipes to conduct its oil and gas over said lands. March 1 1887, Robert Dunn and wife made a contract for the sale of said land to J. L. R. Wadsworth, who afterward assigned said contract to I. N. Boicourt. Dunn and wife afterward, pursuant to said contract, conveyed the premises to said Boicourt, who subsequently conveyed the same to the plaintiff company. The contract from Dunn and wife to Wadsworth, and the assignment thereof by Wadsworth to Boicourt, both recited a lease from Robert Dunn to the Wea Gas, Coal and Oil Company. Boicourt and the plaintiff both knew of the lease by Robert Dunn to the defendant before obtaining any interest in said land. The trial was by the court, which made special findings of fact and law, upon which judgment was rendered in favor of the defendant below. Motion for new trial; motion overruled; to which ruling the plaintiff excepted, and now comes here by his case-made seeking a reversal of the judgment of the district court, and as grounds therefor alleges that said court erred in rendering judgment in favor of the defendant below, when said judgment should have been in favor of the plaintiff below for the relief prayed for. Second, that the court erred in overruling the motion of the plaintiff for a new trial. Tho findings of fact and of law of the trial court are as follows:

"1. On the 23d day of July, 1886, and for a long time prior thereto, Robert Dunn was the owner of the south one-half of the northwest quarter of section 15, in township 17, of range 23, in Miami county, Kansas, except four acres before that time conveyed by said Dunn to the Cordova Glass Company, and one and one-tenth acres conveyed to B. Miller, and the Missouri Pacific railroad right-of-way.

"2. Said Dunn then, and during all the times hereinafter mentioned, was and still is a married man, and the head of a family, occupying said land with his family as a homestead except that the land mentioned in plaintiff's petition has not been in possession of or occupied by said Dunn or family since the conveyance to Boicourt as hereinafter mentioned.

"3. On the 23d day of July, 1886, said Dunn executed and delivered to the defendant company a written lease, a true copy of which is attached to defendant's answer and marked 'Exhibit A'; and said lease was filed for record on the 27th day of April, 1887, in the office of the register of deeds of Miami county. Said lease was acknowledged on said 23d day of July, 1886, by said Dunn before George Kingsley, a notary public of said county, but that said certificate of acknowledgment was not indorsed upon or attached to said instrument until long after the delivery thereof, but was made before said lease was filed for record; and Robert H. Balding, president of the Wea Coal, Gas and Oil Company, did not sign said lease until some time after its delivery to defendant by Dunn.

"4. On the 1st day of March, 1887, Robert Dunn and Gertrude Dunn, his wife, executed and delivered to J. L. R. Wadsworth the contract attached to the answer of the defendant herein and marked 'Exhibit B,' and upon the 5th day of March, 1887, said contract was duly acknowledged and was duly recorded in the office of the register of deeds of said Miami county.

"5. On the 9th day of May, 1887, J. L. R. Wadsworth and wife assigned said last-mentioned contract to I. W. Boicourt, as shown in 'Exhibit C,' attached to said answer; said assignment was recorded in the office of the register of deeds of said county on the 13th day of May, 1887. On the 17th day of May, 1887, Robert Dunn and Gertrude Dunn his wife executed and delivered to I. W. Boicourt the deed set forth in 'Exhibit D' of defendant's answer. Said deed was acknowledged May 9, 1887, and recorded in said register's office May 13, 1887.

"6. On the 14th day of May, 1887, said I. W. Boicourt and wife executed and delivered to the plaintiff a deed of general warranty, conveying the land described in plaintiff's petition. Said deed was executed and delivered by and through J. E. Maxwell, as attorney in fact of the said I. W. Boicourt and wife, and was recorded in the office of said register of deeds June 30, 1887. The power of attorney authorizing said Maxwell to execute and deliver said deed was recorded in said office May 13, 1887.

"7. Said Franklin Land Company was organized as a corporation under the laws of the state on the 28th day of April, 1887. The directors of said company at the time of its organization were, and ever since said time have been, L. C. Wasson, I. W. Boicourt, W. C. Bradley, H. P. Faris and L. M. Hair; and the officers of said company then were and still are L. C. Wasson, president; W. C. Bradley, secretary; I. W. Boicourt, treasurer; and the stockholders of said company at and ever since its organization were and are the directors above named, H. C. Mechem, H. C. Jones and J. E. Maxwell. All of the above-named stockholders were interested in the purchase of the land in controversy except J. E. Maxwell, and contributed toward the payment for the land, said assignment from Wadsworth and wife to I. W. Boicourt having been taken to said Boicourt in trust for the persons (except J. E. Maxwell) who became the stockholders of the said Franklin Land Company. But said J. E. Maxwell was not originally interested in the purchase of said land, and became a stockholder and member of said company after the purchase of said land by Boicourt and the delivery of the deed.

"8. Said J. E. Maxwell acted as, was the agent of said Wadsworth in obtaining the contract from Dunn and wife to said Wadsworth, and acted as the agent of said Boicourt in obtaining a deed to said land from Dunn and wife to said Boicourt.

"9. Within ten days after the execution and delivery of said lease from Dunn to defendant, the defendant entered upon said homestead premises and erected thereon a derrick and placed thereon an engine and other machinery and tools, and then and there commenced boring for gas, coal, oil, and other mineral and has continued said work at intervals until within one month of the trial of this action, boring to a depth of 550 feet, and has expended in the prosecution of said work from $ 1,500 to $ 1,600, and said derrick, engine and other machinery still remain on said premises where originally placed, but are not on any part of the land owned by plaintiff and mentioned in plaintiff's petition, and the defendant has not...