Matlack v. Kline

• Citation: 190 S.W. 408
• Decision Date: 16 December 1916
• Docket Number: No. 1856.,1856.
• Parties: MATLACK v. KLINE et al.
• Court: Court of Appeal of Missouri (US)

190 S.W. 408

MATLACK v. KLINE et al.

No. 1856.

Springfield Court of Appeals. Missouri.

December 16, 1916.

Rehearing Denied January 1, 1917.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Bill in the nature of a bill of interpleader by Sarah B. Matlack against Rowena Kline and Mary E. Smith. From the judgment rendered, defendant Kline appeals. Reversed and remanded, but for want of jurisdiction transferred to the Supreme Court.

George Hubbert, of Neosho, and W. Cloud and Thos. Carlin, both of Pierce City, for appellant. White, Hackney & Lyons, of Kansas City, for respondent. Jas. T. Neville, of Springfield, and Norman A. Cox and Hugh Dabbs, both of Joplin, for defendant Smith.

STURGIS, J.

The plaintiff, at the time of bringing this suit, was in possession of certain land in Lawrence county, conducting mining operations thereon on a large scale and with valuable machinery and appliances. She held such land under a mining lease executed by one F. D. Smith, a life tenant of the land, who had recently died, and the object of the suit is to have the court determine to whom and in what amount she shall pay royalty for the further use of the land. The one defendant is the remainderman Rowena Kline, who became the full owner of the land on the death of Smith, life tenant, and the other defendant is the wife of Smith, who by his will has succeeded to all his rights to any royalty under the lease. Each of said defendants filed answer setting up their respective claims to the royalty. The court found for defendant Mary E. Smith, wife of the life tenant lessor, and denied any right to the other defendant, landowner, to have royalty and she has appealed.

The lease in question was executed in January, 1909, for a period of 20 years to one Bowen, assignor of plaintiff, and gave him and his assignee the exclusive right to mine the land for lead, zinc, and other ores during that period under certain conditions, among them to pay Smith, the "lessor or his heirs," 10 per cent. of the value of the ores mined on said land. The will under which Smith was given a life estate in said land provided that, if he died leaving no living issue, said land should go to the other surviving named devisees. As Smith owned only a life estate in the land, when he first made the contract for leasing same, the persons who were likely to be the remaindermen, including the defendant Kline, who did become such, signed an agreement to the effect that they "consented to and ratified the provisions of the contract for the lease" and "would execute a lease to our interests in said land for mining purposes under its provisions." The mining lease, however, was in fact executed by Smith alone, reciting, however, the above consent of the remaindermen. Some three years later, when Bowen, the lessee, sold and assigned this lease to plaintiff, the same probable remaindermen, inclusive of defendant Kline, signed and indorsed on the lease this agreement:

"For and in consideration of the sum of one dollar and other valuable considerations the receipt of which we hereby acknowledge, we hereby consent to and ratify in full the foregoing mining lease."

Later in 1910, Smith, who up to that time had received as rent or royalty 10 per cent. of the ores mined, made an agreement by which plaintiff, as lessee, paid him $1,000 in cash and he was to receive thereafter the fixed sum of $130 per month in lieu of the 10 per cent. royalty. This agreement provided that the lessee would pay "unto Fred D. Smith, or in the event of his death to his wife, Mary E. Smith, the said sum of $130 per month on the third day of each calendar month thereafter" to the termination of the lease. The remaindermen had nothing to do with this last agreement. Thereafter the lessor and life tenant, Fred D. Smith, received the $130 per month till his death on June 20, 1915.

Plaintiff's petition states that, since the death of Smith, the lessor, the defendant Kline, as owner of the land subject to the mining lease in question, has demanded that plaintiff, as lessee, pay her 10 per cent. of the ores mined on said land since the death of the life tenant, and that defendant Mary E. Smith, wife of said lessor, is demanding the rent or royalty of $130 per month for the same time; avers that plaintiff ought to pay only the latter sum and is willing to pay same to whomsoever the court may determine is entitled to receive it.

It is admitted that defendant Kline, on the death of Smith, the lessor and life tenant, and by reason of the prior death of the other contingent remaindermen, became the owner of this land, and said defendant acquiesces in the validity and continuing force of the mining lease having some 14 years yet to run. She demands the 10 per cent. royalty as following the ownership of the land. It is also conceded that, if the right of Smith to receive the royalty to be paid under this lease continued after his death to any one claiming under him, then defendant Mary E. Smith, his wife, is entitled to the $130 per month.

There can be no question but that the life tenant, without the consent or concurrence of the remaindermen, had no power to lease or otherwise incumber this land beyond the period of his life, and that any such lease or incumbrance would ipso facto terminate on and by his death. 16 Cyc. 640; Edghill v. Mankey, 79 Neb. 347, 112 N. W. 570, 11 L. R. A. (N. S.) 688; Guthmann v. Vallery, 51 Neb. 824, 71 N. W. 734, 66 Am. St. Rep. 475; Hinton v. Bogart, 78 Misc. Rep. 46, 137 N. Y. Supp. 697; Hoagland v. Crum, 113 Ill. 365, 55 Am. Rep. 424; Foote v. Sanders, 72 Mo. 616, 621; Missouri Central Building & Loan Ass'n v. Eveler, 237 Mo. 679, 141 S. W. 877, Ann. Cas. 1913A, 486. Section 7871, R. S. 1909, recognizes this principle.

The mere giving consent by the remaindermen to the making of a lease by the life tenant for a term which may extend beyond the life tenancy, or ratifying such a lease before the death of the life tenant, would not, without more, have any greater effect than to prevent the remaindermen from terminating the lease on the death of the life tenant. In such case the lease would continue in force, but the rent would go to the remaindermen after such death, since the right to the rent follows the ownership of the land. Vantage Mining Co. v. Baker, 170 Mo. App. 457, 466, 155 S. W. 466; 16 Cyc. 652; Hill v. Reno, 112 Ill. 154, 54 Am. Rep. 222; Stevenson v. Hancock, 72 Mo. 612, 615. In the note to Deffenbaugh v. Hess (Pa.) 74 Atl. 608, 36 L. R. A. (N. S.) 1099, 1106, the law is stated thus:

"Doubtless, where new mines are opened or mining rights sold after the inception of the life estate, by agreement between the life tenant and the remaindermen, they may make such provision as they choose for sharing the proceeds between themselves. But, in the absence of a stipulation on that subject, the proceeds from the sale or from mining operations belong to the corpus, and the life tenant will be entitled, not to the proceeds themselves, but merely to the income from these proceeds during the continuance of the life estate."

We have been speaking of such leases or incumbrances as a life tenant has a right to place on the land, but it is also true that, since the life tenant can do nothing to destroy or diminish the value of the inheritance, he cannot, where no mines have already been opened, either in person or by tenant, open such mines or extract minerals from the land. Hill v. Ground, 114 Mo. App. 80, 85, 89 S. W. 343, and cases cited. A list of cases supporting this proposition will be found in the note to Deffenbaugh v. Hess, 36 L. R. A. (N. S.) at page 1100. In Hill v. Ground, supra, this court said:

"Neither the life tenant nor the remaindermen before the contract was made had any right to conduct mining operations upon the land; the former for the reasons shown, and the latter for the reason that during the life term — a freehold estate — the remaindermen had no right to enter the land at or below the surface for any purpose."

The remaindermen could, of course, have given or withheld consent to having the land mined by the life tenant, and could also consent to the making of a lease by the life tenant for a term which might extend beyond the life tenancy. But in such case, unless stipulated otherwise, the rent or royalty would follow the ownership of the land and would go to the remaindermen when the estate of the life tenant became extinct. The life tenant and remaindermen could, of course, in consenting to have this land mined, agree on a division of the rent or royalty, either as to the proportional amount to be paid to each during the entire term, or as to what portion of the term each should enjoy the rent. This principle was applied in Mining Co. v. Baker, 170 Mo. App. 457, 155 S. W. 466, where this court held that two persons jointly interested in land could, in making a mining lease thereon, expressly stipulate and agree that a certain portion of the rent should go to each during the entire term of the lease, and in such case the rent due one party would, on his death, continue for the benefit of his estate, though his interest in the land terminated with such death. This same principle is recognized in Higgins v. California Petroleum Co., 109 Cal. 304, 41 Pac. 1087; Lenfers v. Henke, 73 Ill. 405, 24 Am. Rep. 263.

With these principles in view, we must interpret and determine the force and effect of the lease in question and the consent thereto given by the remaindermen. We would have no trouble in holding that the remaindermen have consented to the making of a lease permitting the removal of mineral ores from the land detrimental to the inheritance, and that such consent was given for the full term of the lease in question, though same extended beyond the termination of the lessor's life estate; but this, however, the remainderman concedes. It is also apparent that the remainderman, instead of demanding, as she might, that a portion...