Pithole Creek Petroleum Co. v. Rittenhouse et al

• Decision Date: 15 December 1877
• Citation: 12 W.Va. 313
• Court: West Virginia Supreme Court
• Parties: Pithole Creek Petroleum Co. v. Rittenhouse et al (*Absent, Johnson, Judge).

12 W.Va. 313

Pithole Creek Petroleum Co.

v.Rittenhouse et al

(*Absent, Johnson, Judge).

Supreme Court of Appeals of West Virginia.

Decided December 15, 1877.

1. Where the answer of the defendant plainly and directly denies,

that R. or plaintiff, or any one for it ever presented a written request from H. and the other alleged stockholders, asking him to convey, or transfer certain stock, as alleged in the bill, the onus is cast upon the plaintiff to prove the allegation of its bill. Hayzlett v. McMillan et al. approved.

2. Until the plaintiff shows his title or interest in the subject of

the suit, the defendant can not be required to show his title or interest to or in the property in controversy.

3. It has been repeatedly held as a general rule, that a motion to

dissolve an injunction will not be continued, unless from some very great necessity. Arbuckle v. McClanalian} 6 W. Va. 107 J Horn v. Perry et al. 11 W. Va. approved.

4. Where the plaintiff has had from the riling of its original bill in

July 1870, up to the 1st of September 1873, to prove the allegations of its bill, the motion to dissolve the injunction will not be continued, because of the insanity of a person by whom it expected to show its interest in the subject of the suit, when it had ample time before the insanity of said person to have obtained his testimony.

An appeal with supersedeas, to two orders made, one in term time, on 8th May 1873, and the other in chambers, on 1st day of September 1873, dissolving injunctions awarded to the plaintiff in a cause in chancery, pending in the circuit court of the county of Wirt, "wherein the Pithole Greek Petroleum Company was plaintiff, and William Ritteiihouse and others were de-

Hon. J. Monroe Jackson, judge of the fifth judicial circuit, entered the orders complained of.

John A. Hutchinson, for appellant. Walter S. Sands, for appellees.

Moore, Judge, who delivered the opinion of the Court, furnishes the following statement of the case:

The Pithole Creek Petroleum Company filed its bill in equity against William Rittenhouse and others, in the circuit court of Wirt county, alleging that Norman ' Peck made a deed of trust, dated December 15, 1866, exhibited with the bill, whereby he conveyed a lease of land of about four acres, at Burning Springs, in said county, to William Rittenhouse, in trust for the use and benefit of a certain stock company, the members of which and their respective shares or interests in said lease are named in said deed of trust, and thereby it appears that said Rittenhouse was the owner of 8-10 of said lease; C. D. Morrill 4-40, O. Hannah 4-40, D. Dustman 4-40, Benjamin Flint 4-10, B. P. Flint 2-40, T. A. Minshall 2-40, Thompson' & Sherman, 2-40, J. M. Snyder 2-40, S. L. Wolfe 2-40, A. Pierson 4-40, E. L. Buckwarter 1-40, L. M. Sifford 1-40, J. J. Throckmorton 1-40, S. L. Wallace 1-40 and L. M. Clark 1-40; and that by said deed of trust said trustee was required to convey and assign to such persons, as said parties or either of them should order or direct, such shares or interests in said leasehold property, as likewise should be ordered or directed; that one George Rice, (president of the Pithole Creek Petroleum Co.) purchased from said Harman Minshall, Thompson and Sherman, Pierson, Wallace and Clark, for valuable consideration, all their right, title and interest in and to the said leasehold estate, and obtained from them an order, or instrument of writing under their hands, in compliance with said deed of trust, directing and requiring Rittenhouse to convey, assign and transfer to said Rice their separate and respective interests in and to said property, (the bill professes to exhibit a copy of said order as part of said bill). Complainant further charges, that about the 1st or 12th day of July, 1870, Rice presented to Rittenhouse said order, who plainly and expressly refused to comply with the same, or in any wise to perform and fulfill his duties as such trustee as aforesaid, and wholly failed and refused to convey and assign to Rice the shares; that Rittenhouse claimed that he had other interests in said property besides his 8-10 aforesaid, and that he had attached certain interests of said lease, and intended to subject them to sale to satisfy his presumed claims. Complainant further charges, that Rice has transferred his equitable claims to said 11-40 in said leasehold property to complainant, and that it now owns and controls the same, and is substituted to all the rights of said Rice in and to said shares, and is entitled to a conveyance of the same from the trustee; that it obtained a temporary or uncertain possession of said property to the extent of its interest, 11-40, in the same, and has received and collected rents from the tenants occupying said lease, on which there are five buildings, suitable for dwellings and shops; and that complainant has, by and through said Rice, collected and still claims the right to collect said rents for the purpose of saving its rights and interests in said lease; that Rittenhouse, well knowing the premises, but disregarding his duty as trustee, has instituted suits against each of the said persons occupying said lease, claiming rent from them, as and for himself and the other beneficiaries named in said trust, notwithstanding complainant has received and collected said rents, and is ready and willing to account for the same, whenever properly called upon by the court so to do; that the amount claimed by said Rittenhouse from John Schaffer, one of said tenants, is $50.00; from M. J. O'Brien & Bro., $31.25; from J. W. Ball $12.00, and from Reason Cain $12.00; that D. A. Roberts, Esq., Justice of Burning Springs Township, has rendered judgment against said parties for said several sums of money with costs (copies of which are made part of the bill); that Rittenhouse and said justice threaten to issue executions for said several sums of money; that when it collected said rents by and through said Rice, it agreed to indemnify said parties from whom it collected the same, and therefore has an interest in the matters arising upon said rents and judgments for rents, and especially so, as complainant is tenant in common with the other shareholders in said lease, and that the tenants placed by it on said premises should be fully protected; but Rittenhouse claims not to be acting as trustee under said deed of trust, and declines to act as such, so far as the transfer of said stock is concerned in the matters herein set forth, and is threatening to harrass said tenants of the common property with executions and other process &c. Complainant prays that Rittenhouse be compelled to execute his duty as trustee, as aforesaid, by conveying, by proper and apt conveyance, the interest in said lease transferred to complainant as aforesaid, and that he be restrained and enjoined from all further proceedings on said judgments for rents, that an account may be taken of the same; and for general relief. Injunction was granted July 20, 1870, and the subpoena in chancery was returned executed July 23, 1870, on Rittenhouse Cain, Ball, Shaffer and O'Brien.

Rittenhouse answered the bill at August rules, 1870, by which he admits that Peck conveyed by the deed of December 15, 1866, to respondent, in his own right and as trustee for other parties mentioned in the bill, the said lease, excepting M. L. Sifford, (which should be Mary Sif- ford); that each of said parties held an undivided interest, and were never organized into a company; he denies, that by the provisions of said deed of trust he was to convey or assign, as trustee, to such person or persons, as said parties or either of them should direct; but on the contrary, he, "as trustee, was to assign or transfer said interest of said owners only upon the written request of the said cestui que trust signed by them, as will fully appear from said deed of trust;" that he knows nothing of the purchase by Rice of the interest in said lease of Harman, Minshall, Thompson & Sherman, Wallace and Clark, or his subsequent assignment to complainant," except what Rice told him," and denies that Rice, or complainant, or any one for it, ever presented a written request asking him to assign said interest, or either of them, but at the time he requested the said transfer to be made by respondent, Rice did not present any written authority authorizing a transfer to be made from Harman and the others aforesaid; and before that time respondent, Morrill, Benj. Flint and B. P. Flint, to-wit: January 2, 1869, instituted suit, in said circuit court, and had attached the interests of all the other owners of said lease for a claim amounting to $1,162.00, which attachment was levied and suit instituted before Rice purchased said interest; he denies, that complainant obtained a temporary possession of said lease, but that the only possession it ever claimed or had was through Rice, who was acting as respondent's agent under a power of attorney authorizing him to collect rents tor this respondent from the tenants on said property for the year 1869, and he never accounted for the rents he collected, excepting for the shares of respondent, Morrill, Benjamin Flint and B. P. Flint; he denies the right of complainant or Rice to the possession of said property, or to collect the rents from the tenants thereon, which tenants were placed there by respondent, acting in his own right and as trustee under said deed of trust; he admits, that Rice collected rents from tenants, but that he forced said rents by having their money in his hands and retaining it against their protest, they having refused to pay him, as respondent notified them not to pay him rent after the expiration of the year 1869; he denies, that complainant ever placed tenants on said property, but that all tenants were placed there by respondent, before Rice or complainant claimed any interest in said lease; and Rice as agent of complainant has thrust himself in between res...