Frierson v. International Agr. Corp.

• Decision Date: 27 July 1940
• Citation: 148 S.W.2d 27,24 Tenn.App. 616
• Parties: FRIERSON v. INTERNATIONAL AGRICULTURAL CORPORATION.
• Court: Tennessee Court of Appeals

148 S.W.2d 27

24 Tenn.App. 616

FRIERSON v. INTERNATIONAL AGRICULTURAL CORPORATION.

Court of Appeals of Tennessee, Middle Section.

July 27, 1940

Certiorari Denied by Supreme Court February 15, 1941.

Appeal from Chancery Court, Maury County; Thos. B. Lytle Chancellor.

Suit by Zara Lydia Frierson against the International Agricultural Corporation to remove cloud from title to land. From a decree dismissing the bill, complainant appeals.

Affirmed.

HIGGINS Special Judge.

From a decree dismissing her bill complainant prayed and perfected her appeal to this Court and is here assigning numerous errors. A brief statement of the contents of her bill followed by a summation of the evidence will suffice for our disposition of these many specifications of error.

Complainant alleged that she was the owner in fee of many tracts of land lying contiguously in Maury County, embracing one large tract of about 715 acres, generally known as the Martha G. Frierson trust estate, which property had passed to complainant by devise from her husband upon whom the property had devolved at the termination or falling in of that trust, excepting some small added parcels not very clearly designated or described.

Much of complainant's bill is devoted to a detailed statement of her title. A recital or incorporation herein of these allegations will serve no useful purpose in solving the questions arising.

Complainant alleged that Mrs. Martha G. Frierson, an ancestor of complainant's husband, had on the 15th day of September 1896, joined with George W. Killebrew and John S. Frierson Jr., as trustees under the will of Martha G. Frierson's father, James Granberry, and with Mrs. Donna F. Killebrew, wife of the aforesaid George W. Killebrew, and John S. Frierson as beneficiaries, had executed a contract with the Blue Grass Phosphate Company, in which the parties hereinabove named were declared to be parties of the first part, undertook to sell or lease the major portion of the property herein involved to this Blue Grass Phosphate Company under certain specified terms and conditions. Under this contract the parties of the first part being predecessors in title to complainant, agreed to sell to the Blue Grass Phosphate Company all the phosphate rock on or under the lands in controversy with certain exclusions therefrom, and with certain restrictions as to the area to be mined by the lessee, together with certain rights of way to be enjoyed by the aforesaid lessee or vendee. The consideration was stated to be 380 shares of the capital stock of the leasing corporation.

Two things about this conveyance should be borne in mind, namely, that George W. Killebrew, who became quite active in the formation of a later agreement, was trustee and one of the lessors, and that his wife was in some way interested in the property, and that the parties of the first part, that is, Killebrew and others, were the purchasers of 380 shares of the capital stock of the Blue Grass Phosphate Company.

It is further provided that the lessee was to pay 15 cents per ton for all phosphate of a certain grade mined from the premises, payments to be made within 60 days with a proviso that if such payments remained unpaid for a period of 60 days, the contract could be terminated at the option of the lessors.

It is further provided that the lessee was to begin operations and mining with reasonable diligence and bound to mine and ship not less than 3,000 tons per annum provided there was sufficient phosphate of a certain grade to be found, and that in case of failure to mine that quantity the lessee agreed to pay 15 per ton for at least 3,000 tons whether mined or not.

It was further alleged by complainant that on the 20th day of August, 1909, the aforesaid Blue Grass Phosphate Company, the lessee under the contract of September 15, 1896, entered into an agreement in writing with the defendant to this suit, wherein the Blue Grass Company designated in this later agreement as the party of the first part, had sold and transferred to this defendant all the property described in a certain schedule annexed to the instrument, and the parties of the first part undertook to assign to this defendant all the rights and interests which he had acquired under certain leases with Alexander Brothers and Mr. Killebrew, and likewise conveying all the phosphate and phosphate bearing rock in certain specified lands lying in Maury County and which were embraced in the lease of September 15, 1896, and the party of the first party endeavored to vest this defendant with all the rights and easements appertaining to the property including all personal property upon the premises enumerated as mining plant, machinery, tools, implements and all the mined rock that was then upon the premises. The consideration and reciprocal obligation of the party of the second part, that is the defendant herein, were the delivery of $250,000 of the capital stock of this defendant which delivery was to be in full payment for all the personal property transferred and for the assignment of the several leases therein described, with the proviso that the party of the second part, the present defendant, shall comply with all the obligations in the several contracts or leases assigned and that this defendant obligated itself to pay to the party of the first part for all phosphate and phosphate bearing rock then mined and upon the premises at the rate of $1 per ton, and that the estimated amount was $250,000. Following this were provisions prescribing the time and method of payment for the rock lying upon the premises, with further proviso that when defendant had paid $250,000 and also the royalty reserved in the lease of Mrs. Martha G. Frierson and others, this defendant would be entitled to remove all the rock that had been mined regardless of quantity, and further provided that this defendant should have the right to mine and remove phosphate rock of a certain percentage if defendant elected so to do. There was a specific assumption by the party of the second part, this defendant, of the obligation to pay Mrs. Frierson and her lessors of the September 15, 1896, lease for all additional phosphate which might be mined at the rate of 15 cents per ton, and this defendant further promised to comply with all the requirements imposed upon the Blue Grass Company by the terms of that lease.

Continuing, the contract under consideration contained a provision that in the event of failure of this defendant to perform any of the covenants and agreements which this defendant had entered into and if such default should continue for a period of 30 days, the party of the first part may elect to treat the sale and lease as forfeited, and that the party of the first part should have the right after termination to enter upon the premises and take possession of the personal property and the contracts and properties embraced in the schedule, and that all the rights of this defendant should cease, and that all unpaid installments shall become due and payable.

A significant provision in this contract was this: That this defendant would endeavor to have George W. Killebrew, one of the parties to the original agreement and the trustee and likewise kinsman of the lessors under the phosphate Company's lease, made a director of this defendant and to become an employee of this defendant, and to be put in charge of all the rock mining operations of this defendant in Tennessee. The importance of this provision in determining the questions arising upon this record will become apparent when we arrive at a construction of the last contract involved in this controversy as showing the reasons why this last agreement was executed.

Complainant alleged the execution of a contract bearing the date of September 24, 1912, purporting to be an agreement between Mrs. Martha G. Frierson, George W. Killebrew and John S. Frierson, trustees under the will of James Granberry, and further purporting to be a contract between these three parties as trustee, and this defendant, which agreement was to be submitted to the Chancery Court of Maury County for approval. The first section of this contract is to the effect that the parties of the first part therein had sold to the party of the second part all the phosphate existing in or on a certain area known as the "glass field", this latter being a tract of land which had been acquired by John S. Frierson, Jr., from one McMillan, but which had become a part of the trust property. This contract embraced agreements respecting the places wherein mining was to be carried on, and likewise the obligation of the party of the second part to prospect and to stake out areas to be mined with the proviso that all the phosphate remaining in the "glass field" and not measuring up to 72% in grade shall remain the property of the parties of the first part, with further provision that the party of the second part, the defendant herein, should have the right to wash and put through their number two Blue Grass Plant the phosphate mined from the Ingram place and to mix this phosphate with the rock taken from the Frierson estate, and that this defendant should not put through said plant or mix rock from any other lands except upon the written consent of the parties of the first part.

There was a provision to the effect that the parties of the first part had agreed to sell to the party of the second part all that portion of the phosphate which had been mined and was in ponds numbers 1 and 2, or any phosphate that might be thereafter deposited in any of the ponds that had been mined from the Frierson land should become the property of the party of the second part with the right to remove the same but that the party of the second part should pay 15...