Miller v. Woodard

• Decision Date: 13 April 1922
• Docket Number: 6 Div. 545.
• Citation: 207 Ala. 318,93 So. 28
• Parties: MILLER ET AL. v. WOODARD.
• Court: Alabama Supreme Court

93 So. 28

207 Ala. 318

MILLER ET AL. v. WOODARD.

6 Div. 545.

Supreme Court of Alabama

April 13, 1922

Appeal from Circuit Court, Winston County; T. L. Sowell, Judge.

Bill by William M. Miller and another against H. G. Woodard, to declare forfeiture of leases and for other relief. From a decree sustaining demurrers to the bill, complainants appeal. Reversed and remanded.

Travis Williams, of Russellville, for appellants.

Bankhead & Bankhead, of Jasper, for appellee.

THOMAS J.

The instant bill was to declare that a forfeiture existed in leases, and to remove a cloud from title because of the fact of such forfeiture, and for injunctive relief.

It is averred that on May 14, 1910, W. N. Miller executed and delivered to Charles D. Pantaze the instrument made a part of the bill as Exhibit A; that on February 21, 1914, W. N Miller and W. M. Miller executed and delivered to H. G Woodard the instrument in writing made a part of the bill as Exhibit B; that said Woodard had theretofore in some manner "become the owner of the Pantaze lease (Exhibit A) and of all rights under and by virtue of said lease, if there were any rights thereunder; and that the said Charles D Pantaze has now no interest of any kind or character by virtue of said lease, or in the lands described" in the bill and lease. It is further averred that the portion of the lands particularly described in said exhibits "known as the W. N. Miller lots" is owned in fee simple by complainant, and was his at the time of the execution of Exhibit B; that he is in possession of the lands described, and there is no suit pending in any court to test the validity, strength or sufficiency of his title.

The necessary averment of a bill under the statute to quiet title to real estate was the subject of recent discussion in Davis v. Daniels, 204 Ala. 374, 85 So. 797; Burgin & Hicks v. Hodge (Ala. Sup.) 93 So. 27, and the averment that complainant is in possession of the lands described, etc., is not the equivalent of the averment that he was in peaceable possession of the lands, actual or constructive, at the time the bill was filed. The necessity for the averment and proof that complainant is in the peaceable possession of lands, actual or constructive, as distinguished from a disputed or "scrambling" possession, was considered in Foy v. Barr, 145 Ala. 244, 39 So. 578; Carr v. Moore, 203 Ala. 223, 82 So. 473; Burgin & Hicks v. Hodge, supra. No specific ground of demurrer challenged the bill for this failure of averment. Respondent, however, waived such defective averment, and challenged the bill on the grounds that it was without equity, stated no sufficient grounds for forfeiting the several lease contracts that were not subject to forfeiture, that the averments are such as to show the oil and gas sought to be disposed of by the written instruments were "vested in the respondent," and that the complainants are not "in the possession of the oil and gas in said lands." The subject of the title, right, and possession of limited or qualified interests in land has been frequently discussed by this court, as timber rights ( McMillan v. Aiken, 205 Ala. 35, 40, 88 So. 135; Irwin v. Shoemaker, 205 Ala. 13, 88 So. 129; Long v. Nadawah Lbr. Co., 202 Ala. 523, 81 So. 25; Christopher v Curtis-Attalla Lbr. Co., 175 Ala. 484, 57 So. 837; Shepard v. Mt. Vernon Lbr. Co., 192 Ala. 322, 68 So. 880, 15 A. L. R. 23; Chastang v Chastang, 141 Ala. 451, 37 So. 799, 109 Am. St. Rep. 45), mineral rights (Majestic Coal Co. v. Anderson, 203 Ala. 233, 82 So. 483; Hooper v. Bankhead, 171 Ala. 626, 634, 54 So. 549; Bruce Coal Co. v. Bibby, 201 Ala. 121, 77 So. 545; Collins v. Smith, 151 Ala. 133, 43 So. 838; Brooks v. Cook, 135 Ala. 219, 34 So. 960; B'ham Fuel Co. v. Boshell, 190 Ala. 597, 67 So. 403), and that of oil and gas (Shannon v. Long, 180 Ala. 128, 60 So. 273; Collins v. Abel, 151 Ala. 207, 44 So. 109, 125 Am. St. Rep. 24; Rechard v. Cowley, 202 Ala. 337, 80 So. 419; Majestic Coal Co. v. Anderson, supra).

It is averred of his failure of compliance with conditions subsequent contained in the lease that respondent Woodard has not entered into possession of said lands or any part thereof under the written instruments exhibited, "has not done or performed any of the things mentioned in said exhibit and that for a period of about 10 years he has completely ignored and abandoned prospecting or testing and developing and operating of oil wells or oil lands in the zone mentioned in said Exhibit B, and particularly on the lands in the section of the county where the lands described" in said exhibit "are located, and has completely abandoned all production or operation of oil or gas or minerals [in that] territory, and is making no efforts, and has made no efforts for a period of about 10 years, to produce either oil or gas, or other minerals." The nominal consideration mentioned in the exhibits is averred to have been returned to the said Woodard, with accumulated interest; that the main consideration leading to the execution of the contracts "was the development and production of oil and gas on the lands described therein, and putting same on the market and reaping an income by the parties to the contract"; that it was not agreed by and between the parties, and not their contemplation that "the said leases would be executed and delivered and a test well driven down and operations abandoned, and the oil and gas rights therein held indefinitely," by the said grantees; but that the moving consideration was "that active operations would be engaged in, until it was ascertained if oil or gas was contained in, on, or under said lands, in commercial quantities," and, in the event thereof, that the same would be developed and "put on the market, so that the owner of the land would reap the income mentioned in the lease."

The prayer of the bill was threefold, viz.: (1) That it be ascertained that Woodard had forfeited all rights, title, and interest to the lands described, and to the oils,

gases, and minerals mentioned therein; (2) that, the leases being of record, the register be directed by decree of court to write on the margin thereof the words "declared void by the decree of the chancery court"; (3) that respondent or other persons claiming by, through, or under him be enjoined from asserting any rights under the written instruments exhibited.

An inspection of said exhibits discloses that Exhibit A recites that, in consideration of $1 and the further consideration of the stipulations, rents, and covenants, parties of the first part "granted and leased" said lands to the parties of the second part, "for the purpose of mining for petroleum oil, gas, coal, iron, clay, zinc, stone, gold, or silver, and other mineral substances, and for the purpose of raising, pumping, mining, and transporting the same from and over the premises" described, to have and to hold the same premises [therein specifically described] for said purpose, "for and during the term of 20 years from the date hereof, and covenant to renew this lease, from time to time, for the terms allowed by law, and as long thereafter as oil, gas, or other mineral substances can be produced in paying quantities," stipulating the payment to parties of the first part of 5 per cent. of the petroleum or other...