Lake View Min. & Mfg. Co. v. Hannon

• Decision Date: 22 June 1891
• Citation: Lake View Min. & Mfg. Co. v. Hannon, 9 So. 539, 93 Ala. 87 (Ala. 1891)
• Court: Alabama Supreme Court
• Parties: LAKE VIEW MIN. & MANUF'G CO. v. HANNON.

9 So. 539

93 Ala. 87

LAKE VIEW MIN. & MANUF'G CO. v. HANNON.

Supreme Court of Alabama

June 22, 1891

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Bill by the Lake View Mining & Manufacturing Company for the construction of a lease made by defendant, Hannon, to one Miner, assigned by him to one Shea, and by the latter assigned to complainant. The bill was dismissed for want of equity, and complainant appeals. Affirmed.

Hewitt, Walker & Porter and Tully R. Cornick Jr., for appellant.

STONE C.J.

This case seeks to raise two questions: First. To obtain equitable relief from what is claimed to be a penalty. 2 Story, Eq. Jur. §§ 1313-1316; 1 Pom. Eq. Jur. §§ 433, 434. There are two reasons why we need not consider this question (1) It is not raised in the pleadings, and appears only in the argument of counsel; (2) there does not appear to be any question of penalty in this case. Is not the royalty agreed to be paid liquidated damages? Powell v. Burroughs, 54 Pa. St. 329; Young v. White, 5 Watts, 460; Pearson v. Williams, 26 Wend. 630. A second object of the bill is clearly set forth in its averments. It was to obtain a judicial interpretation of one clause of the lease under which complainant held and occupied mineral lands which had been let to rent by Hannon to Miner, assigned by him to Shea, and by Shea to complainant. The lease was a letting by Hannon of the right to mine certain lands for iron ore, to continue for a term of years; Miner, the lessee binding himself to produce, on an average, a certain number of tons per day, and, as rent, to pay an agreed royalty per ton, to be paid monthly. The question sought to be raised is one of simple legal right, without a single element of trust in its composition. In 2 Pom. Eq. Jur. § 1064, it is said "Whenever there is any bona fide doubt as to the true meaning and intent of provisions of the instrument creating the trust, or as to the particular course which he ought to pursue, the trustee is always entitled to maintain a suit in equity, at the expense of the trust-estate, and obtain a judicial construction of the instrument, and directions as to his own conduct." 1 Pom. Eq. Jur. § 352, and note; 3 Pom. Eq. Jur. § 1156; 2 Story, Eq. Jur. § 1065 et seq. In Bowers v. Smith, 10 Paige, 193, Chancellor WALWORTH employed this language: "But I am not aware of any case in which an heir at law of a testator, or a devisee, who claims a mere legal estate in the real property, where there was no trust, has been allowed to come into a court of equity for the mere...