Harlan v. Central Phosphate Co.

• Decision Date: 07 February 1901
• Citation: 62 S.W. 614
• Parties: HARLAN et al. v. CENTRAL PHOSPHATE CO. et al.
• Court: Tennessee Supreme Court

62 S.W. 614

HARLAN et al. v. CENTRAL PHOSPHATE CO. et al.

Court of Chancery Appeals of Tennessee.

February 7, 1901.

Appeal from chancery court, Maury county; A. J. Abernathy, Chancellor.

Suit by H. G. Harlan and others against the Central Phosphate Company and others. From the decree, both parties appeal. Affirmed in part, and reversed in part. Rehearing denied.

W. S. Fleming, for complainants. W. B. Greenlaw, for defendants.

NEIL, J.

The contest in this case arises over a lease of phosphate lands, and royalties claimed thereon. The complainant contends that certain portions of the lands now appearing in the lease are improperly there; also that sufficient royalties have not been paid. The defendant denies the grounds of relief claimed by the complainant.

The lease referred to is in the following language: "This mineral lease, made this, the 6th day of Jan'y, A. D. 1897, between Mrs. K. K. Harlan, of the county of Noxubee and state of Miss., Mrs. Agnes Kittrell, of the county of Maury and state of Tenn., of the 1st part, and T. V. Meadows & Co., of the second part, witnesseth: That the party of the first part, in consideration of the stipulations, rents, and covenants hereinafter contained on the part of the party of the second, for the sole and only purpose of mining and excavating for mineral ores and other underground valuables, have leased unto party of the second part all that certain tract or parcel of land situated in Maury Co., Tenn. Civ. Dist. # 13, containing 200 acres, more or less, and bounded N. by M. Dawson, S. by M. Dawson and Daws Freirson, E. by Mrs. A. Jackson and M. Dawson, W. by M. Dawson and Bob Goodloe, to have and to hold the said premises above described for the said purpose only unto the party of the second part, his heirs, administrators, or assigns, for and during the full term of two years from the date of this lease, so long thereafter as minerals or ores or other underground valuables may be found in paying quantities, not to exceed twenty years. The said party of the second part hereby covenants, in consideration of the said grant and demise, to pay unto the party of the 1st part 15 cents per ton for phosphate when mined & weighed, $200 per annum for gas well operated, and to deliver unto the party of the first part, his heirs and assigns, the 1/8 part of the net proceeds arising from the sale of every and all other mineral, ores, and other underground valuables mined from and out of the land above described. In the event the party of the second part fails to develop the said lease or begin operations in its vicinity within two years from the date of this lease, then this contract becomes void. The party of the second part are to only use and occupy ten acres at one time, and to pay all damages to growing crops thereon, or fence or improvement of any kind, caused by him or his agents. The said party of the first part, his heirs and assigns, are to fully use and to enjoy said premises for the purpose of tillage, except such parts as shall be necessary for said mining purposes, and the party of the second part shall have the right of way over and across the said premises to the places of mining and excavating. The party of the second part, or his assigns, shall have the right to move any machinery or fixtures placed on said premises by said party of the second part. And I, ____, wife of ____, hereby join in the foregoing lease, and waive and relinquish all right to homestead and dower for the purpose of this lease only. In proof thereof, we, the said parties of the 1st and 2nd parts, have hereunto set our hands this the day and year 1st above written. Party of the second part agrees to work the property systematically, and to make a reasonable effort to handle not less than 20,000 tons per year, and more when the market justifies it. However, if conditions arise, such that it is impossible to find a market for it all, the party of the 2nd part agrees to pay five hundred dollars as advanced royalty per year, anyway, as long as they hold the lease. Party of the 2nd part agrees that the royalty price shall be increased to 20 cts. per ton when the market price of rock f. o. b. Mt. Pleasant reaches $2.00 per ton, 25 cts. per ton when it reaches $2.50 per ton, 30 cts. per ton when it reaches $3.00 per ton, and 10 cts. per ton on each dollar rise above this. It is agreed that the land shall be left in a reasonable state for cultivation."

The bill alleges that in the year 1882 the land described in the lease was conveyed by one Seth R. Kittrell to the complainants Kate Harlan and E. G. Kittrell and Seth Kittrell, their brother; that about the year 1889 or 1890 this land was divided between the three tenants in common; that the portion which was allotted to Seth Kittrell was marked "No 1," that which fell to E. G. Kittrell was marked "No. 2," and that the portion which was assigned to Mrs. Harlan was marked "No. 3"; that in the year 1891 E. G. Kittrell conveyed to Mrs. Harlan his tract, No. 2, together with 5 acres from No. 1, which latter 5 acres he had purchased from his brother Seth Kittrell; that after this conveyance Seth Kittrell owned lot No. 1, less the 5 acres just referred to, and Mrs. Harlan owned said 5 acres and lot No. 2, making 74 acres, and also lot No. 3; that in November, 1896, Seth Kittrell died intestate, having never been married; that, as a matter of law, the real estate owned by him at the time of his death descended to complainants Kate Harlan and E. G. Kittrell, his only brother and sister, and is now owned by them as tenants in common (that is to say, lot No. 1, above referred to, less the 5 acres); that this balance of lot No. 1 is now owned by them, subject to certain mortgages, which need not be specially referred to; that shortly after the death of Seth Kittrell, T. C. Meadows & Co., knowing that Mrs. Kate Harlan owned tracts Nos. 2 and 3, and supposing that Mrs. Agnes D. Kittrell, the mother of Seth Kittrell and of the complainants, had inherited the Seth Kittrell tract, prepared a lease including in its general boundaries the entire original 200-acre tract, which was composed of the three lots above referred to, and, after securing the signature of Mrs. Agnes D. Kittrell thereto, sent their agent to Mississippi, where complainants H. G. Harlan and wife, Kate Harlan, then resided, to procure their signatures; and that said lease as written was signed by them. It is further alleged that H. G. Harlan and wife and defendants Meadows & Co. and Mrs. Agnes Kittrell were laboring under the impression that the latter, and not the brother and sister of Seth Kittrell, had become the owner of the said Kittrell tract of said land. It is further alleged that it was Mrs. Agnes Kittrell, and not Mrs. Kate Harlan, who agreed to lease this part of the 200 acres to T. C. Meadows & Co. (the only part intended to be leased by Mrs. Harlan to them being the two parcels owned by her in severalty), and that this was the mutual understanding of each party signing the lease; that H. G. Harlan and wife were citizens of Mississippi, not acquainted with the inheritance laws of Tennessee, but believed until about three or four months prior to the filing of the bill that their mother inherited Seth Kittrell's estate; that their mother also believed that she, and not the brother and sister, owned Seth Kittrell's land; that, at the time the lease was executed, T. C. Meadows, who signed for the firm, believed that Mrs. Kittrell owned this part embraced in the lease, and that the parties to the contract all understood that the part leased by Harlan and wife did not cover the Seth Kittrell tract, which it was understood was leased from Agnes D. Kittrell; that, for convenience, there being no covenants of warranty in the lease, the entire original tract was put in the lease under one boundary, and the lease signed by Harlan and wife and Mrs. Agnes D. Kittrell. The bill further charges that E. G. Kittrell was not a part to the lease. He is, however, one of the complainants in the present bill. E. G. Kittrell and Harlan and wife together join in the following allegation in the bill, namely: that they have the right to have the lease confined to that portion of the land owned by Mrs. Harlan individually, and to have it removed as a cloud upon the title to that portion owned by E. G. Kittrell and Mrs. Kate Harlan as tenants in common, for the following reasons: "(1) On the ground that one tenant in common has no power to make, as such, a lease upon the land owned in common, and that the lessee cannot mine under a lease of an undivided interest in mineral land. (2) Because Mrs. Harlan did not intend to lease her interest in this undivided tract, and that none of the parties to the contract understood that she was so doing, as none of them knew that she owned any interest in this tract when the lease was made. (3) That the court should not suffer E. G. Kittrell to be deprived of his rights in the land (especially the right to have it mined at a profitable royalty) by the acts of others, who cannot mine themselves, but who simply hold a cloud over the title, without any benefit to them." The bill further alleges that, soon after the lease was made, T. C. Meadows & Co. began to operate under it by opening a mine of phosphate rock on lot No. 3, and that after mining less than 2,000 tons, in the summer of 1897, the lease was assigned to Lang & Co. and Alphonse Cajot, and by them to the defendant the Central Phosphate Company; that all of the mining from the beginning until now has been done upon lot No. 3. The bill then sets out the substance of the lease, asks a construction thereof as to the royalties provided for therein, and alleges that the defendants are indebted in a large amount for royalties, seting out specifically the number of tons mined, with the royalties paid thereon, and insisting that larger royalties were due than were paid; also that other royalties were due and unpaid....