Kennedy v. Hicks

• Decision Date: 14 May 1918
• Parties: KENNEDY ET AL. v. HICKS ET UX. [a1]
• Court: Kentucky Court of Appeals

203 S.W. 318

180 Ky. 562

KENNEDY ET AL. v. HICKS ET UX. ^[a1]

Court of Appeals of Kentucky.

May 14, 1918

Appeal from Circuit Court, Hardin County.

Action by Joe Hicks and wife against Will C. Kennedy and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Wm McKee Duncan, of Louisville, and G. K. Holbert, of Elizabethtown, for appellants.

H. L James, of Elizabethtown, for appellees.

CLARKE J.

In 1903, appellees, Joe Hicks and wife, who were plaintiffs below, executed, acknowledged, and delivered to defendant Will C. Kennedy the following instrument, the description of the land omitted:

"This lease was made this 20th day of October, 1903, by and between Joe Hicks and Rosie Hicks, his wife, of Hardin county, Kentucky, parties of the first part, and Will C. Kennedy of the county of Jefferson and state of Kentucky, party of the second part, witnesseth:

That the parties of the first part in consideration of the stipulations and covenants thereinafter contained on the part of the said party of the second part, to be kept and performed has leased, demised and let unto the party of the second part, his heirs, executors, administrators and assigns for the sole and only purpose of quarrying, drilling and digging for minerals and oils of any kind, the exclusive right to all that certain tract of land situated near Stephensburg in Hardin county, Kentucky, and bounded and described as follows: [[[Two tracts containing 125 and 3 acres, respectively.]

Said second party to have and to hold said premises for said purposes only for the term of 99 years from this date. In the consideration of said lease, the said second party hereby pays to the first party the sum of $200.00 cash in hand, the receipt is here acknowledged, and agrees and binds himself to pay said first party the further sum of $300.00 within six months after any party, company or corporation begins quarrying, mining or drilling for minerals, oils or other things in the neighborhood of said first party, said party of the first part to fully use and enjoy the said land for farming purposes except such part as shall be necessary for the purpose of drilling, quarrying, etc., and a right of way to and from place or places of operation. Said second party shall have the right to move or place all necessary buildings and machinery and to lay tracks on said land to assist in moving stones, etc. The unpaid $300 is payable at any time second party sees fit to begin work on said land to remove stone and said second party is to have the right to remove all machinery, buildings, etc., placed on said land by said second party.

Given under our hands the day and date above written."

In 1907, Hicks and wife conveyed the same land, without reservation of any kind, by general warranty deed, to W. H. Oliver and others. April 13, 1913, Kennedy assigned whatever rights he had under the above contract to the Stephensburg Stone Company, and it began to quarry stone on the land. Thereafter Hicks and wife filed this action in the Hardin circuit court against Kennedy and the Stephensburg Stone Company, seeking a personal judgment against Kennedy for the unpaid $300 mentioned in the contract, and that they be adjudged a lien upon the mineral rights in the land sold to Hicks and assigned by him to the stone company, and that same be sold to satisfy their claim.

Kennedy, a resident of Jefferson county, was served with summons in that county, and, before answering, made and saved the question of the court's jurisdiction of his person; and his first insistence here is that the court erred in ruling adversely to him on that question, a decision which disposes of all questions, save one, raised by both defendants, because all, with the single exception, depend upon whether the written instrument executed by Hicks to Kennedy was simply a rental contract, as insisted by defendants, or a conveyance of real property as maintained by plaintiffs and held by the court.

We cannot refrain from stating here that upon this interesting question counsel for appellants in their brief have presented neither argument nor authority, other than their own assertion; and counsel for appellees have not favored us with any brief, which places upon the court, if the question is to be discussed in the opinion in a manner justifying its recognition hereafter as authoritative precedent, a burden of research that ought to be borne or attempted at least by counsel, and that interferes materially with our efforts to relieve the congested condition of our docket. That the question is an interesting one and not free from difficulty may be illustrated, and the question clarified somewhat at the same time, by the following quotation from the opinion of the United States Circuit Court of Appeals in the case of Halla v. Rogers, 176 F. 709, 100 C.C.A. 263, also reported in 34 L.R.A. (N. S.) 120:

"In an endeavor to ascertain what property, if any, is

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