POTEET v. IMBODEN et al

• Decision Date: 08 February 1916
• Docket Number: No. 2920.,2920.
• Citation: 77 W.Va. 570
• Court: West Virginia Supreme Court
• Parties: POTEET v. IMBODEN et al

77 W.Va. 570

POTEET

v.IMBODEN et al

No. 2920.

Supreme Court of Appeals of West Virginia.

Submitted February 1, 1916.

Decided February 8, 1916.

1. Contracts Discharge by New ContractNovation.

When the parties to a contract enter:-to an entirely new one with reference to the same subject matter, and the terms of which are co-extensive with but repugnant to those of the original contract, the old will be regarded as having been discharged by the new contract, (p. 577).

2. Appeal and Error-Presentation BelowAdmission of Evidence.

Evidence which is wholly incompetent may be taken advantage of in an appellate court, whether objected to in the lower court or not. (p. 579).

3. Witnesses Waiver of Objection-ross Examination Depositions.

When timely objection has been interposed to the deposition of an incompetent witness, the objecting party does not waive such objection by a cross-examination, limited to the subject matter of the evidence given in chief, (p. 580),

Appeal from Circuit Court, Fayette County. Suit by L. E Poteet against G. W. Imboden and others, executors, etc. From decree for defendants, plaintiff appeals.

Affirmed.

Maynard F. Stiles, for appellant. Dillon & Nuckolls, for appellees.

Miller, Judge:

A former decree in this case, in favor of plaintiif, was reversed upon appeal, upon demurrer, for want of parties, and the cause remanded for amendment of the bill and for further proceedings. 73 W. Va. 567, 80 S. E. 958.

The present appeal is by plaintiff from the final decree of January 25, 1915, on his original and amended bills, with answers of defendants thereto, report of the master commissioners, etc., dissolving the preliminary injunction, dismissing both bills, and adjudging plaintiff to pay defendants their costs.

The purposes of the suit were, first, to obtain a settlement by the defendants, G. W. Imboden and Rosa M. Harvey, executors of the last will and testament of Morris Harvey, deceased, for one fourth of certain royalties collected or that should have been collected, on coal mined or that should have been mined from a tract of two hundred acres of land in Fayette County, under two several leases by Harvey and another, the first of the Sewell seam, to the Harvey Coal and Coke Company, of May 25, 1893; the second, of the Fire Creek seam, to J. A. McGuffin, of October 17, 1901; also to enjoin said executors, defendants, from instituting a threatened suit at law against plaintiff to collect from him five several notes, dated October 1, 1908, for two thousand dollars each, at one, two, three, four, and five years, respectively, alleged to have been executed by him to the executors of said Harvey in settlement of transactions with Harvey in the latter's life time, and also to enjoin the sale and disposal of said notes, and of certain stock of the Horse Creek Land and Mining Company, pledged as collateral thereto, and also to enjoin said executors from disposing of certain other assets of said estate, liable to the payment of any balance that might be found due plaintiff in the settlement of said royalty accounts prayed for.

As the basis for the relief prayed for plaintiff alleged in his original and amended bills that he is owner in his own right, as legatee under the will of his father, the late John Poteet, deceased, and by assignment, first from his mother, Frances J. Pegram, formerly Poteet, now also deceased, and second, from his brother George A. Poteet, also legatees under said will, of the contract for said royalties and of the balance or balances which may be found due from said executors on such settlement,

The assignment of Frances J. Pegram, plaintiff's mother, is dated October 15, 1910; this suit was begun a few days later, on November 17, 1910; while the assignment of George A. Poteet purports to have been made on July 20, 1914, after the death of Mrs. Pegram, the mother, pending this suit, and after the decision of this court on the former appeal, and is one of the subjects of the amended bill.

By a provision in his will the said John Poteet, among other things, bequeathed to his wife, Frances J. Poteet, during her natural life, all his personal property, consisting of all stock, household and kitchen furniture, bonds, notes, money and all other personal property of whatever description of which he might die seized, after payment of his debts, to be held and enjoyed by her during her life, and at her death the remainder to go to and be divided between his two sons, the said George A. and Lucien E. Poteet, And said testator also named said George A. and Lucien E. Poteet executors and empowered them to sell his lands and to manage and control his personal estate so given to his wife.

It is alleged also that in 1880, plaintiff's father, the said John Poteet, and George Poteet, being the owners of a tract of two hundred acres of land, containing two valuable seams of coal, the Sewell seam and the Fire Creek seam, sold and conveyed the said coal in the Sewell seam to said Morris Harvey, granting also certain mining rights, but reserving coal for domestic purposes for three families; and that afterwards by deed of August 25, 1893, said John Poteet, having in the meantime acquired the interest of said George Poteet, granted to said Harvey enlarged mining privileges, and in addition conveyed to him all such coal as had been reserved in the former deed; and that a part of the consideration for said grants was the agreement made between Harvey and Poteet, subsequently evidenced by a writing under seal, that Harvey should lease said coal upon royalty and cause the same to be mined, and should pay to Poteet, or to his successors in interest, one fourth of the royalty to be derived from the coal, and that Poteet should have a one fourth interest in such royalty.

The alleged writing, witnessing the alleged royalty agreement was cotemporaneous with the deed of August 25, 1893, and a part of the same transaction. At that time, as the bill shows, Harvey had already leased the Sewell seam of coal to the Harvey Coal and Coke Company, on May 29, 1893, at ten cents per ton royalty, and a minimum royalty of five thousand dollars per year, with certain mining rights also granted, and without reservation of coal for domestic purposes reserved in the deed of May 27, 1880. The lease to McGuffln of the alleged Fire Creek seam was not made until October 17, 1901, at five cents per ton, minimum royalty two thousand dollars for 1903, three thousand dollars for 1904, and four thousand dollars per annum thereafter, but subsequently by deed the payment of royalties was made to begin in 1905. The deed of August 25, 1893, and royalty agreement of the same date, are not very well pleaded, either in the original or in the amended bill; but they appear in the evidence, and no exception or objection was made to their introduction in evidence because of insufficient pleading or other ground.

It is conceded that the primary rights of the parties in respect to the royalty on the coal from the Sewell seam and from the Fire Creek seam, depend upon the proper construction of these instruments. What the original agreement of 1880, between Poteet and Harvey, as to royalty, may have been, is in no other way evidenced, except by the contract between them in 1893, and the deed of the same date, which must be read and construed together. It is recited in the deed: "That whereas the said parties of the first part are now the owners of the surface of the hereinafter described two tracts of land and the said Morris Harvey is the owner of the minerals and coal in and upon all of the said two tracts of land as will fully appear from certain deeds of record in said Fayette County executed by the said parties of the first part and others to him, and in order and for the purpose of more clearly defining and setting forth the rights and interests and to hereafter prevent any complications between them this deed is executed.'' And this deed then witnesseth: '' That for and in consideration of Five Dollars cash in hand paid the receipt of which is hereby acknowledged, and other valuable considerations, The said parties of the first part do grant bargain and sell assign release and confirm unto the said Morris Harvey his heirs and assigns, or those claiming under by or from him either by deed or lease, heretofore or hereafter made, all of their interest in the minerals including the coal in and upon the hereinafter described two tracts of land known as the Poteet tract of land of two hundred acres and the Hill tract of land of one hundred and forty eight acres, including in this grant all privileges necessary and convenient for the successful mining and raising and shipping of the coal on and from the said two tracts of land as well as also the right and privilege of constructing all necessary tramways for the hauling of the said coal over and under said land, as also the use and privileges of hauling the coal over said roads from all the contiguous lands of the said Harvey or those claiming under him, the said two tracts of land are described as follows."

The said royalty agreement provides: '' That Whereas, in the Original contract of purchase by the said Harvey of the said John Poteet's half interest in the minerals and coal of the two hundred acres tract purchased by the said Harvey from John and George Poteet, it was understood and agreed that the said John Poteet was to have a one-fourth interest in the coal royalty received by said Harvey when the coal was mined, and whereas the said Harvey has executed a deed of lease to the Harvey Coal and Coke Company, of the said land, Now, Therefore, this Contract further Witnesseth: That for and in consideration of Five Dollars, cash in hand paid, the receipt of which is hereby acknowledged by the said Harvey, the said Morris Harvey hereby agrees and binds himself to pay to the said John Poteet, the one-fourth of all royalty received by him from the said 'Harvey Coal and Coke Company', for coal...