Phillips v. Sipsey Coal Mining Co.
Decision Date | 10 May 1928 |
Docket Number | 6 Div. 823 |
Citation | 118 So. 513,218 Ala. 296 |
Parties | PHILLIPS et al. v. SIPSEY COAL MINING CO. et al. |
Court | Alabama Supreme Court |
Rehearing Denied Nov. 1, 1928
Appeal from Circuit Court, Walker County; Ernest Lacy, Judge.
Bill in equity by the Sipsey Coal Mining Company against E.J Phillips, Ola Phillips, C.L. Phillips, and Mary Wood, and cross-bill by E.J. Ola, and C.L. Phillips against complainant and respondent Wood. From a decree establishing the lease and its ownership by complainant, that there had been no forfeiture thereof, that respondents Phillips were not entitled to damages for injury or waste, fixing the minimum to be paid thereunder, denying the right of the lessee to use tenant houses, except for employees engaged in mining on the leased premises, that there was no binding transfer by the lessor to his children, that the deed from the lessor to Mary Wood was of force and effect to convey the interest of the lessor alone (and not of Ola Phillips), but not operating to divest the lessor of his right to receive royalties, and that the excess amount of royalties paid by complainant be repaid to complainant, respondents Phillips appeal. Affirmed in part, and in part reversed and remanded.
Cross-bill must be construed with antecedent pleading, and not departure therefrom.
The contract involved in the suit and established by the court is as follows:
L.D. Gray and J.B. Powell, both of Jasper, for appellants.
Curtis, Pennington & Pou, of Jasper, for appellees.
The bill was in the nature of an interpleader, and sought affirmative relief against some of the respondents. As originally filed September 9, 1922, it sought to have the court take jurisdiction of the subject-matter, to require respondents to propound their claims to royalties for coal mined in the month of August, 1922, and thereafter to adjudge the respective interests owned in said lease of date of July 10, 1914. Thus the purpose of this pleading was (1) to have the lease exhibited, established, and construed, and (2) to determine complainant's liability to E.J. Phillips or his two children, C.L. Phillips and Mary Wood.
Respondent Catts answered, admitted the allegations of the bill, set up his broker's or agency agreement with the lessor Phillips, and claimed a per ton compensation or indebtedness for his alleged services in procuring the lease. In response to appropriate demurrer, Catts was stricken from the bill as an improper party. Phillips et al. v. Catts, 206 Ala. 594, 91 So. 579; Catts v. Sipsey Coal Min. Co., 212 Ala. 421, 102 So. 895.
In 1914, E.J. Phillips and wife, being the owners of the land described as about 339 acres, were, and are now, domiciled thereon, entered into the lease with "J.E. Dilworth trustee," gave right to the latter to mine the coal from the land on terms and conditions expressly stated in the lease that was transferred to complainant. The latter opened a coal mine, established its entry and mining plant, commissary and employees' houses on these lands near Phillips' dwelling. From this operation of the same, certain controversies arose regarding the royalties that eventuated in a suit at law and one in equity. In the suit in equity, E.J. Phillips exhibited his lease in form and substance as that now exhibited by complainant, and materially different from that which is set up in the Phillips answer and...
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