McConnell v. Pierce

• Court: Illinois Supreme Court
• Writing for the Court: MAGRUDER
• Citation: McConnell v. Pierce, 210 Ill. 627, 71 N.E. 622 (Ill. 1904)
• Decision Date: 23 June 1904
• Parties: McCONNELL et al. v. PIERCE.

210 Ill. 627

71 N.E. 622

McCONNELL et al.

v.PIERCE.

Supreme Court of Illinois.

June 23, 1904.

Error to Circuit Court, Pope County; W. W. Duncan, Judge.

Suit for partition and for the removal of a cloud on title by Henry B. Pierce against Niven McConnell and another. From a decree in favor of complainant, defendant McConnell brings error. Reversed.M. S. Whitley (Whiteside & Durfee and Milliken & Craumer, of counsel), for plaintiff in error.

D. G. Thompson and W. D. Beames, for defendant in error.

This is a bill for partition filed in the circuit court of Pope county on April 2, 1903, by the defendant in error, Henry B. Pierce, against the plaintiff in error, Niven McConnell, and one Frank Staubitz, asking for the partition of the minerals on, in and under the lands therein described. The defendant Staubitz filed no answer, and default and decree pro confesso were entered against him. The plaintiff in error, McConnell, filed an answer denying the material averments of the bill, and setting up a claim under the lease hereinafter referred to. The court below rendered a decree sustaining the prayer of the bill, and canceling the lease as a cloud upon complainant's title; the bill being not only a bill for partition, but also a bill for the removal of the lease in question as a cloud upon complainant's title. The present appeal is prosecuted from the decree so entered by the circuit court.

The bill alleges that the complainant therein, Henry B. Pierce, is the owner in fee simple of an undivided one-half interest in all the minerals, such as lead, spar, zinc, iron, and oil, and all other minerals of whatsoever kind, upon and under certain lands, amounting altogether to about 120 acres, in Pope county; that Frank Staubitz is the owner in fee of the other undivided onehalf interest in said minerals; that on December 29, 1899, one F. H. Haley obtained from Hosea Potts a written agreement or lease purporting to lease the minerals in said lands to the said Haley, which lease contained a condition for the development of the same within a period of three years; that the condition was never complied with, and not made in good faith, and the agreement was forfeited on account of the failure so to comply; that the owner, Hosea Potts, declared the lease forfeited and retook possession of the land before the conveyance to Pierce, the complainant; that the lease was recorded in the recorder's office of Pope county, and, although forfeited and void, is yet a cloud upon complainant's title, and he therefore asks that the same be canceled, a copy being filed and made a part of the bill; that one Niven McConnell claims to have some interest in the said real estate, as assignee of said lease, but that, the lease being forfeited and void, his interest is only pretended; that neither F. H. Haley, nor his assignees, took possession of said land at any time, nor did anything of account to comply with the conditions of the lease; that Haley abandoned the leased premises, so far as Potts knew, and has since wholly failed, either by himself or his assignees, to make any development, and by reason thereof Potts and the complainant, as his grantee, have suffered the loss of royalties for a space of three years; that said paper lease has been used only for speculative purposes, by reason of which Haley and his assigns have forfeited any rights they have had under the same; and that the same ought to be canceled. The prayer of the bill is that partition be made of the premises between Pierce and Staubitz, and that commissioners be appointed to make partition, and, in case the premises cannot be divided, that they be valued by the commissioners, and be sold and the proceeds divided; that the lease be set aside and canceled of record, etc., as a cloud upon complainant's title, and be required to be delivered up.

The lease was executed on December 29, 1899, and recorded in the recorder's office of Pope county on April 12, 1902. By its terms, Hosea Potts, of Pope county, in consideration of $1 and one-twentieth of all the hereinafter described products, to be paid by F. H. Haley, his successors or assigns, ‘shall mine and carry away from the premises hereinafter described, which payment shall be made in cash if so agreed, do hereby grant, bargain, sell and convey unto the said F. H. Haley, his successors or assigns, all the coal, iron ore, clay, oil, stone, gas and all other minerals, for the space of fifty years from the date hereof, which may be taken and removed during said period, which may be found in and upon the tract or parcel of land situated in the county of Pope’ aforesaid (describing the lands, consisting of 120 acres). ‘If no developments are made within three years from this date the lease is void. It is also agreed that $40.00 per acre shall be paid for every acre used in farming, the surface of which is destroyed in mining. And the said Hosea Potts for himself, heirs and assigns, hereby covenants with the said F. H. Haley, his legal representatives and assigns, that, until all the minerals above mentioned are mined out of said premises, the said F. H. Haley, his legal representatives and assigns, shall have the right of way over and under said premises, for the purpose of mining the same; also the right to use and occupy so much of said premises for ways, passages, rail or other roads, as may be necessary in caring for and conveying said minerals to market. And it is further agreed that the said F. H. Haley shall have the option of purchasing the fee of the above-described premises at any time within one year from this date at $20.00 per acre.’

The answer of McConnell did not admit that Pierce and Staubitz had any interest in the minerals upon the premises in question, but alleged that whatever interest they had, if any, was subject to that of McConnell. The manner of acquiring of title, if any, and the time of acquiring the same, as set up in the bill, were not admitted in the answer. The answer of McConnell admitted that Haley obtained the lease from Potts, and alleged that he (McConnell) was unacquainted with Haley, and never knew him or Potts either, and knows nothing of the lease except what appears on the face of it; that he (McConnell) knows nothing of any representation made by Haley to Potts at, before, or since the execution and delivery of the lease; that he (McConnell) claims an interest in the mineral in the real estate as assignee; and denies that his interest is forfeited or void or only pretended, but avers that it is real, and that he took an assignment of said lease on or about December 1, 1902, for a valuable consideration; and alleges that immediately thereafter he entered into possession of the premises, and has continued in such possession from that time; that on or about December 16, 1902, under his lease, he commenced the work of development on said property with a large force of men, and has continued the same since, and is still engaged in the work, complying with the terms and conditions of the lease, and has no intention, and never had any intention, of abandoning said work since he began the same. The answer denies that the lease is a cloud, but asserts that it is a legal, valid, and subsisting contract, and was at the time Pierce and Staubitz claim to have become the owners of said minerals.

Upon the hearing of the cause a large amount of oral testimony was introduced, but the testimony of the plaintiff in error, McConnell, was in the form of a deposition, which deposition was read upon the hearing. The defendant in error (complainant below) introduced in evidence a quitclaim deed from Hosea Potts and wife to Henry B. Pierce and Frank Staubitz, dated March 26, 1903, selling, conveying, and quitclaiming to Henry B. Pierce and Frank Staubitz, of Golconda Pope county, Ill., ‘all minerals of whatsoever kind, such as lead, zinc, spar, iron and oil, and any and all mineral of whatever kind or character; also the right and privilege to mine any and all of said minerals, and oil, and the privilege to erect any and all necessary machinery and tramways, for the purpose of said mining and all incidents necessary thereto; also the right of free ingress and egress in, upon and under the following described land.’ (Here follows description of the land.) The deed recites that ‘this deed is made to correct former deed, dated December 20, 1902,’ and was recorded in the recorder's office of Pope county on March 27, 1903.

Upon the hearing, plaintiff in error (the defendant below) introduced in evidence a quitclaim deed dated December 20, 1902, executed by Hosea Potts and Mary Potts, his wife, to Henry B. Pierce, of Golconda, Pope county, Ill., in and by which the grantors, for the consideration of $550, convey and quitclaim to said Pierce ‘all interest in the mineral on the following described land, such as lead, zinc, spar, iron and also oil, or any kind of mineral whatsoever, and the right to mine the same, also haul, and if any damage is done to the present buildings on the land reasonable compensation shall be allowed said Hosea Potts for the same; also any damage done to the present orchard, reasonable pay will be paid to said Hosea Potts, to wit:’ (describing the land). The deed contained the following words: ‘This deed made subject to the F. H. Haley lease.’ This deed, dated December 20, 1902, was acknowledged on that day, and appears to have been recorded in the recorder's office of Pope county, though the date of its record is not shown.

MAGRUDER,...