Matlack v. Kline

• Decision Date: 14 October 1919
• Docket Number: No. 20260.,20260.
• Citation: 280 Mo. 139,216 S.W. 323
• Parties: MATLACK v. KLINE et al.
• Court: Missouri Supreme Court

216 S.W. 323

280 Mo. 139

MATLACK v. KLINE et al.

No. 20260.

Supreme Court of Missouri, Division No. 2.

October 14, 1919.

Motion for Rehearing Denied December 4, 1919.

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

Action in the nature of an interpleader by Sarah B. Matlack against Rowena Kline and Mary E. Smith. From a judgment in favor of the defendant Mary E. Smith, the defendant Kline appealed to the Springfield Court of Appeals, which reversed and remanded the judgment of the trial court, but for want of jurisdiction transferred case to this court. 190 S. W. 408. Judgment of the trial court reversed and remanded.

George Hubbert, of Neosho, and W. Cloud and Thos. Carlin, both of Pierce City, for appellant.

White, Hackney & Lyons, of Kansas City, for respondent Matlack.

Jas. T. Neville, of Springfield, and Norman A. Cox, and Hugh Dabbs, both of Joplin, for respondent Smith.

WALKER, J.

This action, so far as its facts will admit of its classification, is in the nature of a bill of interpleader, in that the Plaintiff (respondent here) seeks to have the defendants interplead, that it may be determined to whom plaintiff shall be required to pay rent or royalty on a tract of mining land, leased by the latter. A decree therein was rendered below, in favor of one of the defendants, Mary E. Smith. From this judgment the other defendant, Rowena Kline, appealed to the Springfield Court of Appeals, which reversed the judgment of the trial court, and directed that payment of the rent or royalty be made by the plaintiff to Rowena Kline. Farrington, J., dissented on the question of jurisdiction, and the case was transferred to this court. Matlack v. Kline et al., 190 S. W. 408.

Pleadings.

Petition.—The petition alleges that the plaintiff is the owner by assignment of a mining lease on certain land in Lawrence county, describing it; that this lease was executed by Fred D. Smith and Mary E., his wife, to one A. B. Bowen, and was ratified by certain persons (naming them), among others the defendant, Rowena Kline; that said lease was for a term ending January 31, 1927, and under its conditions the lessee, or his assigns, was required to pay Fred D. Smith, or his heirs, 10 per cent, of the gross value of all minerals removed from said land by the lessee or his assigns during the lease; that said A. B. Bowen has assigned and transferred all of his right, title, and interest in said lease to plaintiff, and that she is now the legal owner and holder of same; that she has since exercised all of the rights of ownership to said land under said lease; and that the defendant Rowena Kline ratified said lease so made by Fred D. Smith to A. B. Bowen.

Plaintiff further states: That on the 7th day of September, 1910, Fred D. Smith and Mary E., his wife, by their written contract with plaintiff, agreed, in lieu of the 10 per cent, royalty provided for in the lease to A. B. Bowen, that plaintiff would pay Fred D. Smith $1,000 in cash and a monthly rental of $130 during the term of said lease. That in consideration of said cash payment then made, and the agreement as to the monthly Payments to be made by plaintiff, Fred D. and Mary E. Smith conveyed and assigned to plaintiff their claim for a royalty on a 10 per cent. basis. That the payment of the substituted or monthly rental was to commence November 3, 1910, and be made on the 3d day of each month thereafter during the term, so long as plaintiff or her successors or assigns should hold and enjoy the benefits of said lease. This contract further provided, in the event of the death of Fred D. Smith during the lease, that the monthly payments should, for the remainder of the term, be paid to Mary E. Smith. That since the death of Fred D. Smith, who died June 20, 1915, the defendant Rowena Kline claims that she is the owner of said real estate, subject to said milling lease held and owned by plaintiff. That said Rowena Kline, under her alleged ownership, is claiming and demanding from plaintiff the payment of a royalty of 10 per cent. on all minerals taken from said land in lieu of the monthly payments subsequently agreed to be made by plaintiff to Fred D. Smith and wife. That upon the death of Fred D. Smith the said Mary E., his wife, claims that the plaintiff is required to pay her the monthly payments. That these conflicting claims are being made of plaintiff by said Rowena Kline and Mary E. Smith, respectively, and, unless determined, will vex and annoy plaintiff in the enjoyment of said lease. That plaintiff is ready and willing to pay the rental or royalty on said property, either on a royalty or monthly payment basis, as the court may direct, and to whomsoever may be found to be entitled to same.

Plaintiff also states that there is now on said land a large quantity of tailings or chats, to which she claims title, and that defendants are denying her title to same, and are harassing and annoying her in the sale and management of same. She therefore asks affirmative relief, in that she may be authorized to sell and dispose of said material now on hand and that may subsequently be produced during said lease; that she has no adequate remedy at law.

She therefore prays that the court determine the validity of her contract with said Fred D. and Mary E. Smith, and adjudge who is entitled to receive said monthly payments of $130 during the remainder of the term of said lease, and, if the court determine that said contract is invalid, and, since the death of Fred D. Smith, the royalty of 10 per cent, should be paid on all mineral obtained by plaintiff from said land, that the court adjudge and determine to whom the same shall be paid.

Plaintiff further alleges her willingness to comply with the court's judgment, and that defendants be restrained and enjoined from interfering with plaintiff's mining operations on said land under said lease, and for such other further orders, etc.

Answer of Mary E. Smith.—The defendant Mary E. Smith, so far as her answer is relevant to the matter at issue, alleges in substance, as stated in the petition, the execution of the mining lease by Fred D. Smith to A. B. Bowen; the ratification of same by several persons, among others, the defendant Rowena Kline; the assignment of said lease by Bowen to plaintiff; the subsequent contract of September 7, 1910, between plaintiff and Fred D. and Mary E. Smith, set forth as in plaintiff's petition; the death of Fred D. Smith and that he bequeathed the royalty provided for in said contract to the defendant Mary E. Smith. She then asks that if the latter contract between her husband and herself on the one part, and plaintiff on the other, be declared invalid, that she, and not Rowena Kline, is entitled to the royalty on a 10 per cent. basis on all minerals taken by plaintiff from said land. She also claims that she is entitled to the chats and tailings described in plaintiff's petition.

She therefore prays that the contract for the lease, the consent and ratification thereof, and the mining lease made thereunder, be declared to be valid and binding, and that same created a binding mining lease of said land; and that Fred D. Smith and his assigns were the owners of same for the full term, and that, since the death of Fred D. Smith, the defendant Mary E. Smith is the owner and entitled to said royalty or the monthly rental of $130, under the contract of assignment, and to the chats and tailings described; and for other and proper relief.

Answer of Rowena Kline.—The answer of the other defendant, Rowena Kline, states her sole ownership in fee of the land in question, and the devolution of her title thereto by descent from her ancestor, David Caldwell ; that Fred D. Smith was a life tenant of said land under the will of said Caldwell, with the provision that, upon Smith's death without issue, the land was to descend in fee to other devisees named in the will; that all of those so named predeceased Smith, except Rowena Kline, this defendant; that Smith died June 20, 1915, without issue, and that the land thereupon descended to this defendant in fee, and she has since been invested with same; that the defendant Mary E. Smith makes some claim to said land, and the rents and royalties therefrom, as defendant is informed, by reason of an alleged contract in relation thereto with the life tenant, Fred D. Smith; that plaintiff, who was allowed by Fred D. Smith to mine lead and zinc ores upon said premises during the lifetime of the latter, has continued and is continuing to remove minerals therefrom under said adverse claim of right, and for more than 10 days before this action was brought has appropriated, and continues to appropriate and convert to her own use, mineral in large quantities from said land, mining, up to the date of the commencement of this action, 200 tons of ore, of the value of $20,000, and has refused to pay this defendant the royalty thereon as stipulated in the lease. This lease, as made between Fred D. Smith and A. B. Bowen, is then described as in plaintiff's petition. It is further alleged that Bowen and plaintiff entered on said land under said lease and mined same during the lifetime of Smith, and that plaintiff, since the death of Smith, has continued mining thereon, removing from the land minerals amounting in value to $20,000, to this defendant's damage in the sum of $2,000, and has paid part of same to the defendant Mary E. Smith, who claims some interest in said premises under her deceased husband, Fred D. Smith.

Defendant prays that the court adjudge and determine the rights, interests, and demands of the parties hereto, and that an inquiry and accounting be adjudged to this defendant, and for damages to the date of this action, in the sum of $2,000, and for such other and additional damages as may accrue to this defendant from plaintiff's operations in mining said land. This is followed with a description of the land by government subdivisions, as in plaintiff's...