Hanley v. Richards

• Decision Date: 26 February 1935
• Docket Number: C. C. 516.
• Parties: HANLEY et al. v. RICHARDS et al.
• Court: West Virginia Supreme Court

178 S.E. 805

116 W.Va. 127

HANLEY et al. v. RICHARDS et al.

C. C. No. 516.

Supreme Court of Appeals of West Virginia.

February 26, 1935

Submitted February 5, 1935.

Syllabus by the Court.

1. Shumate v. Shumate, 78 W.Va. 576, 90 S.E. 824, decided in 1916 (holding that a married woman's deed, void for noncompliance with Code 1913, c. 73, § 6 (section 3809) relating to such deeds, would nevertheless be sustained as an executory contract), was rendered ineffectual by Acts 1919 c. 65 (amending the statute to require the same formalities of an executory contract as a deed).

2. In such respects as the disabilities of married women under statutory and common law have ended, they are as subject to the law of estoppel as single women.

3. When, over a period of years, a lessor of oil and gas land after becoming sui juris, receives and retains numerous delay rentals from her lessee, she will not ordinarily be permitted to repudiate the lease on the ground that it was initially invalid.

Case Certified from Circuit Court, Ritchie County.

Suit by Thomas W. Hanley and another against R. W. Richards and others. Demurrer to the answer of defendants seeking affirmative relief was sustained, and the ruling certified for review.

Ruling reversed, and cause remanded.

Thomas J. Davis, of Harrisville, and H. R. Taylor, of Charleston for plaintiffs.

W. J Brennan, of Sistersville, for defendant Mary E. Toothman.

S. A. Powell, R. S. Blair, and Dewey S. Wass, all of Harrisville, for defendants R. W. Richards and others.

HATCHER Judge.

This certification involves the validity of an oil and gas lease, made by Mrs. Mary E. Toothman, a married woman living separate from her husband, of her own real estate, to R. W. Richards. The husband of Mrs. Toothman did not join in the lease, and their separation was not recited therein or in the acknowledgment thereto. The circuit court ruled that the lease was invalid.

The lease was dated September 22, 1930, and recorded April 3, 1933. It was for a period of four years and for as long thereafter as oil and gas should be produced. It provided for the payment of delay rentals to commence December 1, 1930. Mrs. Toothman wrote to Richards on November 13, 1930, that it had been three years since she had seen her husband; that she did not know where he was; and that there was no use to bother about his signing the lease because in business affairs he permitted her to do as she pleased. Following this letter, Richards paid to Mrs. Toothman her share of the delay rentals, quarterly, for the years 1931-32 and 1933. In the meantime on July 17, 1931, she conveyed the leased property to a non compos daughter by a deed recorded August 24, 1931. The consideration for this conveyance was love and affection. On November 25, 1933, Mrs. Toothman, in her own right and as guardian of her non compos daughter, purported to lease the oil and gas interests in controversy to plaintiffs Hanley and Stillings. Those lessees sought in this suit to enjoin Richards and associates from operating under the lease of September 22, 1930. Richards and associates set up their claim in an answer (seeking affirmative relief) to which a demurrer was sustained by the circuit court. The sufficiency of that answer is the subject of this certification.

Code 1923, c. 73, § 6, directs that a "deed or other writing agreeing to sell and convey" real estate which is the sole property of a married woman living apart from her husband shall recite both the fact of sole ownership and the fact of marital separation in case he does not join in the conveyance; that such facts shall be proved to the satisfaction of the officer taking the woman's acknowledgment; that the facts shall be stated in the certificate thereof; and that the certificate shall be prima facie evidence of the facts. Counsel for plaintiffs take the position that failure of the Richards lease to comply with the provisions of chapter 73, § 6, renders the lease void, citing Bennett v. Pierce, 45 W.Va. 654, 31 S.E. 972, and allied cases, which so hold.

Code 1923, c. 66, § 3, provides that a married woman may convey her own real property, etc., "in the same manner, and with the like effect as if she were unmarried." Counsel for Richards contend that chapter 66, § 3, and chapter 73, § 6, conflict, and that the former should be given precedence over the latter. It is a settled rule of statutory construction that statutes relating to the same subject-matter must be considered together. State v. Hoult, 113 W.Va. 587, 169 S.E. 241. This rule has been followed in the construction of these two statutes in so many cases and for so long a time, that we regard the contention foreclosed.

Counsel for Richards then turn to Shumate v. Shumate, 78 W.Va. 576, 90 S.E. 824. That case was decided in 1916. At that time, Code, c. 73, § 6, related only to deeds. See Hogg's Ann. Code 1913, § 3809. The Shumate Case involved a deed of the separate estate of a married woman living apart from her husband, which did not comply with the provisions of chapter 73, § 6. The court held that although the Shumate deed was void under the statute as an actual conveyance, the instrument would nevertheless be sustained as an agreement to convey. Three years after the Shumate decision, however, the Legislature amended chapter 73, § 6, to include not only deeds, but also "other writing agreeing to sell and convey." See Acts 1919, c. 65. Thus, by requiring the same formalities in writings agreeing to sell and convey as in a deed itself, the act of 1919 terminated the effect of the Shumate decision whatever may have been its merits. A lease of land for the purpose of extracting oil and gas "is, in effect, a grant of a part of the corpus of the land." Haskell v. Sutton, 53 W.Va. 206, 44 S.E. 533. Therefore, we must regard the Richards lease as we would a deed, and hold it to be initially void under Bennett v. Pierce, supra, for failure to comply with the statute.

The Code of 1931, 48-3-3, removed all the restraints upon alienation theretofore imposed by law on a married woman. Mrs. Toothman accepted delay rentals after the...