Jones v. McBee

• Decision Date: 14 October 1942
• Docket Number: 171.
• Citation: 22 S.E.2d 226,222 N.C. 152
• Parties: JONES v. McBEE et al.
• Court: North Carolina Supreme Court

22 S.E.2d 226

222 N.C. 152

JONES v. McBEE et al.

No. 171.

Supreme Court of North Carolina

October 14, 1942

Civil action to recover one-third of the value of minerals taken from certain lands in Stokes County, N. C., in which lands it is admitted, the plaintiff is the owner of a one-third undivided interest, and owned said interest at the time of the removal of the minerals in question.

The defendants, John C. McBee and wife Margaret C. McBee, and Henry Grindstaff, purchased the lands in question at a tax foreclosure sale and were under the erroneous impression then, and at the time of the removal of the minerals from said lands, that they had obtained a fee simple title to the entire property; whereas, in fact, they obtained title to only a two-thirds undivided interest in said lands. The defendants Henry Grindstaff, C. C. Robinson and S.W. Blalock leased the premises for mining purposes and removed the minerals which are the subject of this controversy.

It is alleged by the plaintiff and admitted by the defendants that from May 1, 1941, to November 1, 1941, defendants removed and sold from said lands, valuable minerals commonly known as mica, of the value of $8,605.50. Defendants denied the right of plaintiff to recover anything for said minerals except one-third of the customary royalty on the mica removed.

Upon motion of plaintiff's counsel for judgment on the pleadings, the Court held the plaintiff was entitled to recover the sum of $2,868.50, one-third of the value of all mica removed from said lands by the defendants. By consent of plaintiff, judgment was entered for only $1,630.78, less the sum of $80 for taxes paid by defendants on plaintiff's one-third interest in said lands.

From the foregoing judgment, defendants appeal and assign error.

Frank P. Burton, of Stuart, Va., and Dallas C. Kirby, of Danbury for plaintiff.

Charles Hutchins, of Burnsville, for defendants.

DENNY Justice.

Defendants except to the refusal of the Court to submit the case to the jury and to the judgment as signed, which presents the question: Was plaintiff entitled to judgment on the pleadings?

Defendants contend in their brief that because the plaintiff alleged she was entitled to recover under the provisions of C. S. of N.C. § 6927, the defendants had failed to plead in reduction of the damages claimed, the expenses incident to the removal and sale of the mica, which expenses represented a large part of the gross receipts from the sale of said mica. The defendants having failed to plead the expenses incident to the removal and sale of the mica in question, or to move to amend in that respect, are now too late for their contention to prevail. Besides, in their answer they expressly challenged the right of plaintiff to recover under the provisions of the above statute, admitted all the other material allegations of the complaint, including the value of the mica removed from the lands, and elected to take the untenable position that plaintiff was entitled to recover only one-third of the customary royalties on the mica removed.

We agree with the defendants and His Honor that plaintiff is not entitled to recover under the provisions of C.S. of N.C. § 6927, but we do think she is entitled to judgment on...