Hoskins v. Northern Lee Oil & Gas Co.

• Decision Date: 02 May 1922
• Citation: 240 S.W. 377,194 Ky. 628
• Parties: HOSKINS ET AL. v. NORTHERN LEE OIL & GAS CO.
• Court: Kentucky Court of Appeals

240 S.W. 377

194 Ky. 628

HOSKINS ET AL. v. NORTHERN LEE OIL & GAS CO.

Court of Appeals of Kentucky.

May 2, 1922

Appeal from Circuit Court, Lee County.

Rose &amp Stamper and J. F. Sutton, both of Beattyville, for appellants.

Chester Gourley, H. D. Parrish, and Roberts & Pendergrass, all of Beattyville, for appellee.

SAMPSON J.

The real question in the case presented by this appeal is: Who is the true owner of the oil and gas in and under the 8-acre tract of land, in Lee county, on which appellee Malissa Norman now lives and claims both the surface and the mineral? But a very large part of the record is devoted to the presentation for construction of a written contract of date May 4, 1920, made between the Northern Lee Oil & Gas Company on the one part, and the assigns of the two oil leases executed by the two adverse claimants of the mineral in and under the said land. Each set of claimants assert title to a one-eighth royalty under their lease of the land, which now has on it several good wells. The company refused to pay one-fourth royalty, one-eighth to each of them, but asserts it is willing to pay a royalty of one-eighth to the true owner of the mineral in the tract. A determination of the true ownership of the oil and gas under the lands in dispute will, we think, relieve the court of the necessity of devoting much space to the interpretation of the contract.

On December 25, 1901, James T. Maloney, then the owner of a 58-acre tract of land on Sugar Camp branch and Jack Mann's branch, in Lee county, sold and conveyed the same to John Coomer, for the sum of $100, $5 of which was in hand paid and the balance evidenced by two promissory notes, the said Maloney retaining a lien upon the property for the security of the unpaid purchase money, and making the following reservations in the habendum clause:

"To have and to hold the same, together with all its appurtenances thereunto belonging to the said John Coomer, his heirs and assigns forever, saving and excepting therefrom and from this conveyance all the coal, iron, gas, and oil of any and every sort or description, with the right of egress and ingress to mine and work and remove the said coal, iron, gas, or oils, without any charge to the grantor."

Needless to say that it is admitted by all parties to this controversy that James T. Maloney, who is named grantor in said deed, did not divest himself of the oil and gas or other minerals mentioned by said conveyance, but, on the contrary, continued to own the same. The aforementioned deed was duly recorded in the office of the clerk of the Lee county court on the 30th day of December, 1901. On August 15, 1903, John Coomer, to whom the lands were conveyed, and his wife sold and by deed conveyed to Daniel B. Pence, of Lee county, all the aforesaid lands, in consideration of $125 cash in hand paid, and this deed was signed by John Coomer and Margaret Ann Coomer, each by mark, and lodged for and recorded in the office of the clerk of the Lee county court, on August 19, 1903. Afterwards and on March 8, 1909, D. P. Pence, to whom Coomer sold the land, conveyed to Lucy Norman, now Lucy Watkins, 8 acres of the said 58-acre tract, in consideration of $150, cash in hand paid. In the deed from Pence to Lucy Norman it is recited that the land conveyed--

"is a part of the land which was conveyed to the party of the first part (Pence) by deed from John Coomer and his wife, dated 15th day of August, 1903, and recorded in the clerk's office of the Lee county court, Deed Book No. 12, page 119."

Lucy Norman afterwards married Andy Watkins, and she and her husband, on the 22d day of February, 1917, sold and by deed conveyed the 8 acres in question to her mother (appellee) Malissa Norman, for the recited consideration of $150 cash. Malissa Norman still owns and claims the 8 acres, and, on February 5, 1920, executed an oil and gas lease to A. M. Sutton, whereby Sutton was granted the right and privilege of mining and taking oil and gas from the said 8 acres, and this is one of the leases which was later acquired by the Northern Lee Oil & Gas Company, in its effort to conciliate the adverse claimants and bring about development of the said 8 acres for oil and gas purposes.

On March 13, 1920, James T. Maloney and wife, in consideration of $1 and one-eighth royalty, executed to Lee Kash an oil and gas lease upon the whole of the 58 acres, the surface of which he had conveyed to Coomer in 1901, and which 58 acres included and covered the 8 acres claimed by Malissa Norman and on which she shortly theretofore executed an oil and gas lease to A. M. Sutton. This lease, with the one from Malissa Norman, passed from Lee Kash and others to the Northern Lee Oil & Gas Company, under a written contract of date May 4, 1920, by which it is claimed by some of the appellants that the company agreed to pay certain additional royalties.

Recognizing the validity of the reservations of the oil and gas and other minerals made by James T. Maloney, in his deed to the Coomers, of date December 26, 1901, Mrs. Malissa Norman bases her claim to the oil, gas, and other minerals in the 8 acres, which she leased to Sutton, not upon her deed through Coomer but upon an alleged title bond supposed to have been executed by John Coomer, Margaret Ann Coomer, and James Maloney to D. B. Pence, on April 20, 1903, the original of which is before this court for its inspection. Maloney and those who claim the mineral rights under him assert that this title bond is a fabrication, and that Maloney never made or executed it nor even had knowledge of its existence until about the time oil and gas were discovered in paying quantities in that community. If this title bond be not genuine, then Malissa Norman did not own the oil and gas or other minerals in the 8 acres which she claims, and her lease made to Sutton conferred no right upon him nor upon his assignees to take said minerals, and she is not entitled to claim and receive royalties from the oil and gas produced from the premises.

Where a party to an action claims real estate, or an interest therein, under and through a writing on the face of which there are erasures, interlineations, or other evidences of mutilation, the genuineness of which is challenged by the opposing party, the burden is upon the party producing the paper to show, by satisfactory evidence, that the interlineations, erasures, or mutilations in the writing were made or occurred before its execution and delivery, or, if subsequent, by agreement of the parties, or through some accident or misfortune, and the paper is not admissible until its authenticity has been...