Millar v. Mauney
| Decision Date | 17 October 1921 |
| Docket Number | 162 |
| Citation | 234 S.W. 498,150 Ark. 161 |
| Parties | MILLAR v. MAUNEY |
| Court | Arkansas Supreme Court |
Appeal from Pike Circuit Court; James S. Steel, Judge; affirmed.
Judgment affirmed.
Tompkins McRae & Tompkins and Fordyce, Holiday & White, for appellants.
The court erred in refusing to transfer the cause to chancery. Cancellation of instruments is a recognized ground of equity jurisdiction. 96 Ark. 251.
The lease contained no clause for forfeiture. It was error to overrule defendant's demurrer. A law court cannot order a forfeiture. 41 Ark. 532; 24 Cyc. 1349, citing cases; Wood Landlord & T. p. 453; 1 Underhill, Landlord & T. p. 625; Tiffany, Landlord & T. p. 1366.
Forfeitures are regarded with disfavor. Ordinarily where forfeitures are desired they are expressed in the contract. 100 Ark. 568; 125 Ark. 110.
Rose Hemingway, Cantrell & Loughborough, and W. C. Rodgers, for appellees.
This was not an action to cancel an instrument. It was an action to recover land. The cause should not have been transferred. When the tenant's term expires from any cause, the landlord may bring ejectment. Wood, Landlord & T. § 571.
While forfeitures are not favored, equity will cancel a contract where there is an abandonment of performance. 100 Ark. 568.
This action was instituted by the appellees against the appellants in the Pike Circuit Court April 20, 1920, to recover the possession of certain lands alleged to contain diamonds. The appellees alleged in substance that the appellee Bettie L. Mauney is the widow, and that the other appellants are the children and sole heirs at law of M. M. Mauney, deceased, who leased the lands in controversy in 1912 to the appellants; that the lease was for a period of fifty years, beginning January 1, 1912. There was a condition in the lease that the lessee, his associates and assigns, undertake "to diligently and faithfully" prosecute the work of development of the property as outlined in the lease in a scientific and practical manner * * * by taking such preliminary steps toward the preparation of plans and purchases of machinery necessary to carry on the work in contemplation, and to erect and install a modern washing and concentrating plant of African type within one year from April 10, 1912, and in good faith and with diligence to treat and wash for the recovery of diamonds and other precious stones a minimum of 10,000 loads of material from the first-described tract of land known as the Mauney diamond property during each and every year of this lease, and as much more as can reasonably be done, a load being a unit of measure and sixteen cubic feet. The lease also provided that the lessor should have one-fourth of all diamonds and other precious stones and valuable minerals recovered from the land. The lessees were to have the management and sale of the diamonds, and every three months the lessees should fix a price for the product of the mine, and the lessor was given the right to buy the diamonds by paying to the lessees three-fourths of the price thus fixed. If no price was fixed, the output was to be sold to the lessee, and one-fourth of the proceeds of the sale was to be paid to the lessor.
The complaint further alleged that the lessees "covenanted and agreed with the lessor that the operation undertaken shall be prosecuted and carried on in good faith and with loyalty and fidelity to all the parties to the lease, and agreed to furnish the lessor an accurate statement of the number, character, quality and weight of all diamonds and other valuable minerals taken from said mine, together with quarterly statements of sales made, with payment in full for all royalties due to the lessors under the lease contract;" that since the 27th of April, 1918, no reports of the recovery of diamonds had been made nor an opportunity given the lessors to purchase the output, nor had the lessees washed and treated as much as 10,000 loads of material; that the property had been in possession and under the control of the appellants before and since April 27, 1918; that appellants were holding the same under and by virtue of the lease mentioned, and upon no other ground whatever. The concluding portion of the complaint is as follows:
The lease was made an exhibit to the complaint. The appellants answered and set up that, subsequent to the lease, there was an agreement by which the written reports required in the lease were dispensed with and it was agreed that the diamonds should be divided in kind. They allege that the diamonds already recovered had, by order of the chancery court in a former suit, been brought into court and held there until May, 1920, when they were delivered back to the appellants, and that appellants had been trying to divide the diamonds ever since, and had tendered them in a suit pending between the parties in federal court. The answer alleged that, under the terms of the supplemental lease, the parties were authorized, when it became necessary to make a change to underground system in mining, to have such time as was necessary for so doing without forfeiting the lease; that in 1917 appellants determined that it was necessary to resort to underground mining, but that by reason of the war with Germany they could not secure the necessary labor for doing the necessary excavation and running the washing machine until the 13th of January, 1919, when the plant was destroyed by fire of incendiary origin. They admitted that since April, 1918, they had not washed as much as 10,000 loads of dirt, and alleged that they were not required to do so. They alleged that, ever since the making of the lease, the appellees had persistently and without right constantly engaged them in litigation, having filed against them more than thirty separate suits, all of which have been decided adversely to the appellees; that, notwithstanding the annoyance and harassments, appellants had expended more than $ 150,000 in undertaking to develop the mine; that the product of the mine for the last three years has been tied up by the court at the instance of appellees, who had refused to fix a price upon them or to divide them as provided by the verbal agreement made in 1916; that it will cost a quarter of a million dollars to reconstruct the plant, and that, by reason of the annoyance and harassments caused by the appellees, the appellants had been hampered in making their necessary financial arrangements; that their labor had been disorganized, and that one of the appellees sought to assassinate two of the appellants on the public highway; that diamond-bearing dirt had been uncovered on about five acres of the mine, and that appellees had wrongfully engaged the appellants in litigation for the purpose of fraudulently undertaking to secure a cancellation of the lease for the purpose of appropriating to the use of the appellees the labor and expenditures of appellants; that appellants during the last seven years had not had as much as three months free from litigation in which to undertake the development of the mine; that the mine is in the shape of a V with the point extending toward the south, and the northern part of the mine is covered by non-diamond bearing rock, the extent of which is not known, and cannot be known, until the appellants are permitted to sink a shaft to determine how far down this rock extends. The answer concluded with a prayer that it be taken as a cross-bill, and that the court fix a reasonable time within which the appellants may peacefully pursue the prosecution of the work, and that until that time expires appellees be restrained from further proceedings.
Embodied in the answer was a general demurrer which challenged the sufficiency of the complaint to state a cause of action, and also the jurisdiction of the court. There was also a motion to transfer the cause to the chancery court. The d...
To continue reading
Request your trial