Lawson v. Kirchner

• Decision Date: 30 November 1901
• Court: West Virginia Supreme Court
• Parties: LAWSON et al. v. KIRCHNER.

40 S.E. 344

50 W.Va. 344

LAWSON et al.

v.KIRCHNER.

Supreme Court of Appeals of West Virginia.

Nov. 30, 1901.

DEBT TO INFANT—ACTION BY NEXT FRIENDOIL LEASE—CONSTRUCTION.

1. Where a debt or demand is payable to infants, suit therefor is properly brought in their names by their next friend, although the money, when recovered, goes to their guardian.

2. An oil lease for oil and gas purposes is a conveyance or sale of an interest in land, conditional and contingent on the discovery and reduction to possession of the oil or gas.

3. A person who accepts an oil or gas lease, with a stipulation therein contained to pay a monthly rental until a well is completed, or un-

til the expiration of a certain fixed term, is bound to pay such rental, although he does not, within such term, enter upon the land and complete such well, unless he was prevented from doing so by the plaintiffs, and not by mere personal default. (Syllabus by the Court.)

Error to circuit court, Tyler county; G. W. Fair, Judge.

Action by Harvey Lawson and others against W. E. Kirchner. Judgment for plaintiffs, and defendant brings error. Affirmed.

Engle & Riggle, for plaintiff in error.

Pugh & Pugh, J. V. Blair, and C. R. Martin, for defendants in error.

DENT, J. W. E. Kirchner complains of a judgment of the circuit court of Tyler county rendered against him on the 20th day of August, 1900, for the sum of $4,873.89, with interest and costs, at the suit of Harvey Lawson, an adult, who sues in his own right, and Ella Lawson, Maggie Lawson, James Lawson, and Calvin Lawson, infants, who sue by C. P. Tustin, their next friend. The questions presented are as follows: First, that the suit was improperly brought in the name of the infants by their next friend, but it should have been brought in his name as guardian; second, that the decree of the circuit court authorizing the leasing of the land for oil purposes was void, for the reason that the statute authorized the court to sell, and not to lease; third, that the defendant did not agree, and-is not bound by the conveyance of August 20, 1895, made to him by C. P. Tustin, guardian of the plaintiffs, to pay the rental therein stipulated to be paid, and for which this suit is brought. These questions were raised by demurrer to the declaration, pleas tendered, and motion to set aside the verdict. The decree confirming the lease is as follows: "This cause came on this 19th day of August, 1895, to be finally heard upon the papers formerly read, orders heretofore made herein, and upon the report of C. P. Tustin, guardian of the infant defendants, Harvey Lawson, Ella Lawson, Maggie Lawson, James Lawson, and Calvin Lawson, of the sale made by him of the interests of said infants in the undivided seven-eighths of all the oil and in all of the gas in and underlying the tract of 96 acres of land in the petition in this proceeding mentioned and described, from which report it appears to court that said guardian did, on the 17th day of August, 1895, sell at private sale the interests of said infants in the undivided seven-eighths of the oil, and in all of the gas, in and underlying the said premises, to W. E. Kirchner, for the term of two years and as much longer as oil or gas is found in paying quantities, for the sum of $2,471.43 cash in hand paid by said purchaser, reserving to said infants the usual royalty of one-eighth of five-sevenths of all the oil obtained from said premises produced in the crude state, the same to be set apart in the pipe lines running said petroleum to credit and for the benefit of said infants, the said infants to fully use and enjoy said premises for the purposes of tillage, except such part as may be necessary for such mining purposes and a right of way over and across said premises to the place of mining and operating, the purchaser not to put down any well or wells on the said premises within ten rods of the buildings now on said premises without the consent of both parties, and for the further consideration that the said W. E. Kirchner shall pay to said infants a monthly rental of one dollar and seventy-eight and four-seventh cents per acre from this date, the first of said rentals to become due on the 13th day of September, 1895, and on the 13th day of each month thereafter, until a well is completed on said premises, or until the expiration of said term of two years, and for the consideration also that the said purchaser pay to said infants the sum of $214.28 per annum for the gas from each well on said land when utilized off the premises, and the said infants to have gas for domestic purposes after supplying the boilers on the premises for drilling and pumping purposes, the said purchaser to have the privilege to lay all necessary pipe lines, and to erect all necessary buildings, for said mining purposes, and the right to remove all machinery, fixtures, engines, boilers, tanks, stations, structures, offices,...