McIntosh. v. McIntosh., (No. 9720)

• Decision Date: 30 October 1945
• Docket Number: (No. 9720),(No. 9721)
• Citation: 128 W.Va. 74
• Parties: F. F. McIntosh et al. v. j. B. Vail et al.F. F. McIntosh et al. v. j. B. Vail et al.
• Court: West Virginia Supreme Court

128 W.Va. 74

F. F. McIntosh et al.

v.j. B. Vail et al.

F. F. McIntosh et al.

v.j. B. Vail et al.

(No. 9720)

(No. 9721)

Supreme Court of Appeals of West Virginia.

Submitted September 11, 1945.

Decided October 30, 1945.

1. Mines and Minerals

Those deriving their title under a vendor's lien reserved in a deed conveying a tract of land, excepting the oil and gas, and containing a covenant that "if oil or gas is found in paying quantities * * * first party and her assigns shall yield and pay to parties of second part or their assigns, one full sixteenth (1/16) of the oil and gas produced and marketed from said lands" have no right or interest under the said covenant.

2. Mines and Minerals

Where the grantees in a deed conveying to them, a tract of land in which a vendor's lien is reserved and the oil and gas excepted, which deed contains a covenant that "if oil or gas is found in paying quantities * *: i' first party and her assigns shall yield and pay to parties of second part or their assigns, one full sixteenth (1/16) of the oil and gas produced and marketed from said lands", which covenant has been construed by this Court as a personal covenant in a former appeal in this cause, the grantor, or her heir, is not relieved from her obligation under said covenant by reason of the grantees' failure to pay the purchase price where the grantor, relying upon said deed, enforces a vendor's lien reserved therein and collects the purchase price in full.

3. Appeals and Error

"The decree of this Court, upon a question decided by the trial court is final, and the questions involved and adjudicated on a former appeal generally cannot be reviewed on the second appeal. An exception to this rule is stated in Syl. 7, Pennington v. Gillaspie, 66 W. Va. 643, 66 S. E. 1009." William C. Atwater & Co., Inc. v. Fall River Pocahontas Collieries Co., 119 W. Va. 549, Pt. 1 Syl.

Appeal from Circuit Court, Jackson County.

Interpleader suit by F. F. Mcintosh and another, partners doing business as Mcintosh & Grimm, against J. B. Vail and others to determine right to royalties, wherein Adele Clerc Gardner filed a crossbill. From the decree, Adele Clerc Gardner and the A. M. Carson Store Company and others separately appeal.

Affirmed.

Fox, Judge, and Lovins, President, dissenting.

Perry Emmet O'Brien and S. P. Bell, for appellants. Broivn, Jackson & Knight, W. Goodridge Sale, Jr., and C. W. Moxley, for appellees.

Riley, Judge:

This interpleader suit, brought in the Circuit Court of Jackson County by F. F. Mcintosh and E. W. Grimm, partners doing business as Mcintosh and Grimm, against J. B. Vail et al., was heretofore appealed to this Court by R. B. Stone, Administrator of J. M. Stone, deceased, and the heirs of said J. M. Stone (Appeal No. 9471, 126 W. Va. 395, 28 S. E. 2d 607), and by S. T. Starcher (Appeal No. 9472, 126 W. Va. 355, 28 S. E. 2d 95). In Appeal No. 9471 this Court reversed the decree of the trial court and remanded the cause to the circuit court. From a final decree entered on the remand, awarding to the administrator of J. M. Stone and to the heirs of C. T. Gates, their personal representatives, or assigns, the funds in controversy in Appeal No. 9471 and held by the interpleaders, F. F. Mcintosh and E. W. Grimm, partners as aforesaid, the appellee, Adele Clerc Gardner, and the appellees, The A. M. Carson Store Company, Waid E. Carson and Bessie E. Staats, appeal.

As stated in the former opinion in Appeal No. 9471, this suit involves two leaseholds, one of ninety-four acres and one of 102 1/2 acres, to each of which there are two sets of conflicting interests. The instant appeals are concerned only with the tract of ninety-four acres.

A partial statement of facts contained in the opinion rendered on the former Appeal No. 9471 will be stated substantially verbatim:

On November 2, 1899, Mary E. Clerc conveyed to J. M. Stone, C. T. Gates, and R. L. Rogers, a tract of land containing ninety-four acres, situate in Jackson County. The language of that deed, which furnishes the basis of the instant controversy is as follows:

"First party also expressly reserves from the sale herein made, the oil and gas in and under all the lands herein conveyed and. also the exclusive right of operating thereon for oil and gas, together with the rights of way necessary for such operations and the right to lay necessary pipes over and to erect tanks thereon and to take and use water from said premises, and also the right to erect and remove, at any time, all property placed thereon by said first party, or her assigns, in prospecting for or producing oil or gas. But if oil or gas is found in paying quantities on said lands, first party and her assigns shall yield and pay to parties of second part or their assigns, one full sixteenth (1/16) of the oil and gas produced and marketed from said lands."

The grantees paid the sum of five hundred dollars cash, and the grantor reserved a "vendor's lien on the lands herein conveyed" to secure the unpaid purchase money. Thereafter Rogers granted to Stone and Gates his undivided one-third interest reserving "the oil and gas and privileges mentioned and reserved in * * * [Mary E. Gere's conveyance], but hereby conveys to second parties all of the interest therein that may accrue to said" Rogers. On November 20, 1900, Stone and Gates and their respective wives conveyed the ninety-four-acre tract to W. E. Parish under a general warranty; and under date of June 29, 1903, W. E. Parish conveyed a portion of that tract to one Annie M. Miller. Neither of the two last deeds mentioned any oil, gas or mineral exception or reservation.

In October, 1903, Stone and Gates as individuals and partners were adjudged bankrupts in the District Court of the United States for the Northern District of West Virginia. During the following month Mary E. Clerc applied to the referee in bankruptcy for permission to institute a suit in the Circuit Court of Jackson County, to enforce her rights under the vendor's lien retained by her in the deed to Stone, Gates and Rogers. The answer of The A. M. Carson Store Company, Waid E. Carson and Bessie E. Staats avers that the trustee in bankruptcy for each of the adjudicated bankrupts declined to accept any right, benefit or interest of said J. M. Stone in said covenant and that said property was abandoned and reverted to said J. M. Stone. Mary E. Clerc thereafter instituted a vendor's lien suit and Stone, Gates and Rogers, as well as the trustees of the respective estates of Stone and Gates as bankrupts, were made parties defendant, but Stone and Gates were dismissed from said suit prior to any adjudication of their interests arising by reason of the covenant herein under consideration. According to the answers of The A. M. Carson Store Company, Waid E. Carson and Bessie E. Staats, Mary E. Clerc was authorized by an order of the referee in bankruptcy "to institute such actions at law or suits in equity as she may deem necessary to protect her rights and interests in the" ninety-four-acre tract of land. The answer of the administrator and heirs of J. M. Stone avers that in the vendor's lien suit the decrees ordering sale provided as follows: "But in such sale the oil and gas rights reserved by the plaintiff in said deed shall be reserved and preserved to her to the same extent"; that the commissioners in reporting the sale of the ninety-four-acre tract reported that it was "subject to the oil and gas rights of the plaintiff and rights of way reserved to her"; that the decree of August 3, 1904, directing the execution of the deed provided: "but there shall be reserved in said deed the oil and gas rights to plaintiff reserved to her by said decree of sale"; and that the deed from the special commissioners to The A. M. Carson Store Company, purchaser of the property at the judicial sale in the vendor's lien suit, provided that: "The same reservation as to certain roads or rights of ways and of oil and gas in or under said land and the developments theretofore contained and reserved in said deed of Mary E. Clerc to said Stone, Gates and Rogers dated November 2, 1899, are hereby expressly reserved."

Mary E. Clerc died intestate in 1923 leaving surviving her as her only heir at law her daughter, Adele Clerc Gardner. On June 1, 1937, Adele Clerc Gardner leased the ninety-four-acre tract for oil and gas purposes to the interpleading plaintiffs, F. F. Mcintosh and E. W. Grimm, partners. On March 25, 1941, before this suit was brought and any drilling was begun, plaintiffs and some of the claimants in both appeals entered into an agreement consolidating the ninety-four-acre tract in controversy, and the one hundred and two and one-halfacre tract, as a unit aggregating one hundred ninety-six and one-half acres for the purpose of the more economical operation for oil and gas, which agreement provided, in effect, that the royalties be shared proportionate to the ownership interests in both tracts upon production of oil and gas in paying quantities.

Upon the former Appeal No. 9471, this Court held that the circuit court erred in holding that the grantor's covenant to "yield and pay to the parties of second part or their assigns, one full sixteenth (1/16) of the oil and gas produced and marketed from said lands" ran with the land; that the Mary E. Clerc deed to Stone, Gates and Rogers effected eo instante a severance of the oil and gas from the surface; and that the covenant in question wras personal and not real.

On this appeal, the appellants, The A. M. Carson Store Company, a corporation, Waid E. Carson, and Bessie E. Staats predicate their claim to the funds in issue upon the title which The A. M. Carson Store Company obtained at the judicial sale in the vendor's lien suit. The appellant, Adele Clerc Gardner, the only heir of Mary E. Clerc, takes the position on this appeal that The A. M. Carson Store Company, Waid E. Carson and Bessie E. Staats, are precluded by the holding of this Court on the former appeal...