Knotts v. McGregor
| Decision Date | 24 March 1900 |
| Citation | 35 S.E. 899,47 W.Va. 566 |
| Parties | KNOTTS et al. v. McGREGOR. |
| Court | West Virginia Supreme Court |
Submitted February 5, 1900
Syllabus by the Court.
1. An action can be maintained against an executor for breach of covenant of a lease committed by his testator.
2. In a lease for oil and gas there is an implied covenant of right of entry and quiet enjoyment for the purposes of the lease.
3. The covenant of quiet enjoyment in a lease for oil or gas, or other purposes, is not broken by the mere fact, alone, that the lessor makes another lease during the term, of the same premises, whether the first lessee be in actual possession or not; the second lessee not entering.
4. The covenant for quiet enjoyment implied in a lease for oil is broken by the exclusion by the lessor of the lessee from taking possession for the purposes of the lease, or his withholding from him the possession of the land for the purposes of the lease.
5. A cause of action against a decedent's estate cannot be joined in the same action with a cause of action against the personal representative individually.
6. A misjoinder of causes of action in a declaration is fatal on demurrer, dismissing the action, unless the plaintiff, as he may, amends by striking out one or more counts, or, if two causes of action or two assignments of breaches of contract are in the same count, by electing to proceed only on certain of action or assignment.
Error to circuit court, Ritchie county; Romeo H. Freer, Judge.
Action by Knotts & Garber against Matilda McGregor. Judgment for defendant, and plaintiffs bring error. Affirmed.
V. B. ARCHer, for plaintiffs in error.
B. F Ayers and W. McG. Hall, for defendant in error.
A. W Knotts and J. Garber brought an action of covenant against Matilda McGregor, executrix of the will of David McGregor deceased, in the circuit court of Ritchie county, which action was dismissed upon a demurrer to the declaration, and the plaintiffs have brought the case to this court. The declaration avers: That David McGregor made a lease, August 30, 1889, to Knotts & Garber, of certain land, for the purpose and with the exclusive right of operating for the development of petroleum oil and gas for the term of five years; said lessees covenanting to pay McGregor an eighth of the oil produced, and $200 per annum, for each productive gas well, and that said lessees should complete a well within one year from the date of the lease, and a failure to do so should render the lease null and void. But it was further covenanted that, if the lessees should pay McGregor a rental of 25 cents per acre from the time specified for the completion of the well, such payment should operate to extend the time for five years, and that said rental should be deposited to McGregor's credit in the Second National Bank of Parkersburg. That said lease provided that all the conditions thereof should extend to the heirs, executors, and administrators of the parties. The declaration further avers that the plaintiffs had well and truly kept and performed their part of the said lease; that on August 30, 1890, they tendered McGregor $125 for the rental provided in said lease, but he refused to accept the same, and that on August 29, 1891, the plaintiffs deposited the same to McGregor's credit in said bank, and that McGregor had accepted such deposit and used part of it in his lifetime, and his executrix had accepted and used the residue thereof; that, the plaintiffs having kept their covenants, the said McGregor did not in his lifetime keep his, and the plaintiffs did not during the term of said lease have and enjoy the exclusive right to drill and operate for oil and gas on the premises demised; that after the making of said lease, and during the term therein granted, David McGregor executed another lease, February 13, 1890, to A. L. Gracey, for the same land, with the exclusive right to operate for oil and gas thereon for the term of 20 years from the date of said lease,--requiring said Gracey to complete a well within nine months, or forfeit the lease, with right, however, to keep the lease alive by the payment of $25 per month rental. The declaration further avers that David McGregor died during the term so demised to the plaintiffs, and that Matilda McGregor was appointed by his will its executrix, and qualified as such. The declaration further avers that, before the expiration of the 1 year specified in said lease in which said plaintiffs were entitled to enter upon the leased premises to operate for oil, McGregor did prevent and exclude them from their right so to enter upon said premises, and continued so to exclude them up to his death, September 7, 1891, and prevented them from entering upon said premises for the purposes of putting down the test well or developing said premises for oil within the first year mentioned in said lease, and also within the 5-year period therein mentioned, and that the plaintiffs were kept and held out of the exclusive enjoyment of the right to operate upon said premises for oil from the 30th of August, 1889, until the death of said McGregor, and thereby the plaintiffs lost the benefit of the demised premises, and gains and profits which they would have made from said lease, and the value of said lease, and had thus been damaged $150,000. The declaration contained a second count, stating over again the same lease from David McGregor to the plaintiffs, and the subsequent lease by him to Gracey, and alleging the denial to the plaintiffs of the benefit of their said lease, and their exclusion from the premises by McGregor in his lifetime, in like manner as stated in the first count. This second count further averred that after the death of David McGregor his said executrix entered into and held said land as such executrix, and that on February 10, 1895, she executed to James Gartland a lease for the purpose of the production of oil and gas for the period of 5 years, covering 125 acres of the same land which had been leased by David McGregor to the plaintiffs; that the said Matilda McGregor, executrix, did cause said Gartland to enter and take possession of said 125 acres, and that he did by virtue of his lease enter into said premises, and exclude the plaintiffs from the said 125 acres, within the period of their lease; and that said executrix did cause and permit Gartland to operate for oil on said land, and to put down a well thereon, and thereby did exclude the plaintiffs from the possession of said premises, and thus did disturb and molest the plaintiffs, and deprive them of the benefit, enjoyment, and profits of their said lease.
It is contended that no action at law lies for a breach of the covenant of the plaintiffs' lease by David McGregor, in his lifetime, against his personal representative. For this position we are referred to Code, c. 86, § 6, providing that an heir or devisee may be sued in equity by any creditor to whom a debt is due, for which the estate descended or devised is liable, or for which the heir or devisee is liable, in respect to such estate, and he shall not be liable to an action at law therefor. We are also cited for the proposition to Rex v. Creel, 22 W.Va. 373. That statute has no bearing on this case. It does not bear on the liability of the personal estate. Formerly the land of a decedent, in the hands of his heirs, was liable only for debts of record, and bonds or other instruments under seal, expressly binding the heirs. For such debts the heir could be sued at law, and the debt levied out of land descended to him. Such a debt bound the land, but the land was not bound the land, but the land was not bound for any other debts at law, though it was in equity. The specialty creditor getting a judgment against the heir had preference over other creditors. The legislature thought it unjust that a dead man's land should be liable only for part of his debts, and concluded to make it liable for all his debts, whether by bond or otherwise. This statute is found in Code, c. 86, § 3. Having thus made the decedent's real estate liable for all his debts and demands, it was thought best to prohibit different and multitudinous suits at law against the different heirs entailing large costs, and to compel the creditors to resort only to equity, where the land assets could be administered for the benefit of all creditors, and the debts marshaled, and all paid, according to the principle on which courts of equity, before that statute, marshaled equitable assets. It is apparent that the legislature did not intend to abolish the long-standing remedy of a creditor to sue a personal representative to have his demand satisfied out of the personal assets. Section 19 of chapter 85 of the Code expressly provides that "a personal representative may sue or be sued upon any judgment for or against, or any contract of, or with his decedent." This section only declares what the law was before it, and surely meets and defeats the contention that section 6 of chapter 86 does not allow a suit against the personal representative. 2 Lomax, Dig. p. 116, § 13. Of course, as we see daily, actions at law can be brought against personal representatives on bonds and notes of the decedent under section 19, c. 85; but actions at law could not now be brought on a bond against the heir, as formerly, because section 6, c. 86, would prohibit it. If it be thought that an action for breach of covenant contained in a deed of lease for years or in fee simple cannot be maintained against a personal representative, the position cannot be maintained. ...
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