Marcum v. Brock
| Decision Date | 06 March 1953 |
| Parties | MARCUM et al. v. BROCK et al. |
| Court | United States State Supreme Court — District of Kentucky |
John M. Lyttle and J. D. White, Manchester, for appellant.
James C. Brock, Harlan, Lewis & Weaver, London, for appellee.
CLAY, Commissioner.
This suit was brought for a declaration of rights by appellees. Testimony was heard in open court before the Chancellor and he entered a judgment in their favor. Appellants failed to make the testimony a part of the record, and it is not before us. Under such circumstances we must presume the evidence supported the Chancellor's finding on all issues of fact and the only question presented is whether or not the pleadings support the judgment. Moran v. Moran, 281 Ky. 739, 137 S.W.2d 418, and Sapp v. Likens, 301 Ky. 445, 192 S.W.2d 394.
Appellees' petition alleged that they entered into coal lease contracts with the owners of certain land in 1949. Thereafter they sub-leased the property to a corporation, which in December 1951 went into bankruptcy. In June 1952 the owners released the property to the principal appellants. Appellees allege that their earlier leases had never been 'declared null and void or cancelled' by the lessors. Without a prayer in the petition, it poses the question of whether or not their prior leases give them the right to mine coal on the premises.
Appellants' answer simply denied certain allegations of the petition and stated the question involved was whether or not the bankruptcy of the sub-lessee excused appellees' non-compliance with the working condition of the leases, which by express terms constituted a forfeiture. There is apparently a very real controversy in this case, but the pleadings do not present it. From the briefs we gather that the original leases were not worked for a period longer than 6 months. Two of them, however, provided 'if lessees fail or refuse to mine or work said coal from said premises for a period of 6 months * * * then and in that event the said lease shall become null and void * * *.'
It is apparent on the face of the leases that these provisions for forfeiture are self-executing. Therefore, if appellees failed to comply with the working condition, they have no more rights thereunder. See 36 Am.Jur., Mines and Minerals, Sections 58, 59; Landlord and Tenant, Sections 847, 848; 58 C.J.S., Mines and Minerals, Sec. 184. Since appellees are asserting a superior right, it was incumbent upon them to allege performance of the...
To continue reading
Request your trial
-
May v. Johnson Family Coal Co., No. 2008-CA-001047-MR (Ky. App. 2/19/2010)
...termination" often being used interchangeably. See 53A Am. Jur. 2d Mines and Minerals §§ 205, 208 (2009), citing Marcum v. Brock, 257 S.W.2d 55, 55 (Ky. 1953). Sometimes appellate opinions have referenced all three to explain how the lessee's rights came to an end. See Taylor v. Newman, 318......
-
Com., Dept. of Highways v. Evans
...saying that when the evidence is not before us we can do no more than determine whether the pleadings support the judgment. Marcum v. Brock, Ky., 1953, 257 S.W.2d 55. In this case there is nothing in the record, by pleading, evidence, or otherwise, to support the supplemental judgment. More......
-
Com., Dept. of Highways v. Richardson
...Ky., 386 S.W.2d 256 (1964); Crowe v. Taulbee, Ky., 350 S.W.2d 620 (1961); Willis v. Davis, Ky., 323 S.W.2d 847 (1959); Marcum v. Brock, Ky., 257 S.W.2d 55 (1953). The Commonwealth cites DeHart v. City of Olive Hill, 305 Ky. 864, 205 S.W.2d 351, 352 (1947), in which in opposition to a motion......
-
Willis v. Davis
...will indulge the presumption that the absent evidence supported the facts pleaded and the decision of the trial court thereon. Marcum v. Brock, Ky., 257 S.W.2d 55. The court directed the defendants to permit a business meeting of the membership of the church at a designated time and place a......