Payne v. Fitzwater

• Decision Date: 18 January 1927
• Docket Number: (C. C. No. 393.)
• Court: West Virginia Supreme Court
• Parties: PAYNE, MALCOLM & GALLAHER. v. FITZWATER et al.

136 S.E. 509

PAYNE, MALCOLM & GALLAHER.

v.FITZWATER et al.

(C. C. No. 393.)

Supreme Court of Appeals of West Virginia.

Jan. 18, 1927.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Suit by Payne, Malcolm & Gallaher against B. F. Fitzwater and others to quiet title and for other relief. After sustaining a demurrer to the bill, the trial court certified its ruling. Ruling affirmed.

A. N. Breckenridge, of Summersville, and W. E. R. Byrne, of Charleston, for plaintiffs.

G. G. Duff and Emmett Horan, both of Summersville, for defendants.

WOODS, J. This cause involves the sufficiency of a bill on demurrer. The circuit court of Nicholas county sustained the demurrer and certified its ruling to this court for review.

The bill, in substance, alleges that Jefferson and John A. Grose, owners, in fee, of a tract of 1, 800 acres, of land in Jefferson district, Nicholas county, did convey to T. S. Robson, plaintiffs' predecessor in title, by deed bearing date of September 9, 1872, 1, 200 acres of said tract in fee, "together with the coal and mineral on all the lands which the said Jefferson and John A. Grose reserves and lives on, excepting 200 acres of which 100 acres is to be on the land owned and reserved by Jefferson Grose and 100 acres on the land of John A. Grose, " and providing in said deed that:

"It is also hereby understood and agreed upon that the 200 acres of minerals reserved by the said Jefferson and John A. Grose shall be laid off, beginning at the lower end of the said Jefferson Grose tract and extending up on each side of the said left hand fork of Line creek including the bottom and cleared land and back for quantity."

The bill further alleges that plaintiffs, or predecessors, have paid taxes on the 1, 200 acres, in fee, since 1S72, but that taxes on coal and minerals under the residue of the 1, 800 acres, as aforesaid, were not assessed to, or paid by, any of plaintiffs' predecessors, until 1895 and thereafter, setting out the further allegation that same was not forfeited to the state, since the properties under which said coal and minerals are located were, during all of said period, taxed in fee to the Groses and their successors. The bill then alleges that almost immediately after the deed to Robson, the Groses began disposing of said residue of 600 acres, in fee, by mesne conveyances, covering a period of about 12 years—1873 to 1886—wholly disregarding their said sale of 400 acres or more of the coal and minerals thereunder by said deed of 1872 to Robson. After setting outthe sundry conveyances under which the plaintiffs and the defendants hold, respectively, and the fact that neither Jefferson and John A. Grose, nor any of their grantees, have ever set off the said 200-acre reservation of coal and minerals, together with divers and sundry other kindred allegations, the bill ends with a prayer: (1) That the deed of 1872 be construed; (2) that the mining rights and privileges underlying the reserved land may be ascertained and decreed to plaintiffs; (3) that the reservation in the deed of 1872 be laid off; (4) that title of plaintiffs may be quieted as to minerals conveyed in said deed and subsequent deeds; (5) that subsequent deeds of the Groses and those holding under them may be set aside and held for naught; (6) that rights of the parties be definitely fixed and determined and proper decrees entered; and (7) for general relief.

Want of equity was the manifest reason for circuit court's sustaining of the demurrer to the bill. It was admitted in argument on the. hearing that the court below took the view that the bill was primarily one to remove cloud from title. At the time of the institution of this suit the plaintiff had no actual possession of any part of the minerals of the 600 acres, no pedis possessio, no actual foothold thereon. The bill does allege "constructive" possession. But such possession does not confer jurisdiction in equity to remove cloud from title. Mackey v. Maxim, 63 W. Va. 14, 59 S. E. 742. To a person claiming good...