Steinman v. Vicars

• Decision Date: 04 July 1901
• Citation: 99 Va. 595,39 S.E. 227
• Parties: STEINMAN . v. VICARS.
• Court: Virginia Supreme Court

39 S.E. 227

99 Va. 595

STEINMAN .

v.VICARS.

Supreme Court of Appeals of Virginia.

July 4, 1901.

EQUITY JURISDICTION—REMOVAL OF CLOUD ON TITLE — POSSESSION OF PLAINTIFF — EJECTMENT—JUDICIAL SALES—UNDERLYING MINERALS.

1. The holder of the legal title, in actual possession of the surface of land underlain by undeveloped minerals, —no mines having, been opened, —has a sufficient possession to enable him to sue to remove a cloud on his title, consisting of a deed purporting to convey the underlying minerals.

2. Code, § 2726, originally provided that, where premises were actually occupied, ejectment was confined to such occupant, but, where vacant, the action might be maintained against one merely claiming title. Acts 1895—96, p. 514, amending such section, permits a plaintiff, where premises are occupied, in his discretion, to join as defendants any persons claiming any interest therein adversely to the plaintiff. Held not to enable a person in possession of land to maintain ejectment against one claiming adversely to him.

3. Code, c. 2, § 5, subsec. 10, declares land to include lands, tenements, and hereditaments, and all rights thereto and interest therein, other than a chattel interest. A person owning land in its entirety contracted to sell it, giving a title bond therefor. The purchaser having defaulted, on the vendor's death his administrator prayed a specific performance, and the land was sold under a decree to satisfy the unpaid purchase money. A subpurchaser alleged his purchase of the underlying minerals, and prayed that the sale be set aside, and the land be first offered for sale with the minerals reserved, which should not be sold unless a sale of the surface failed to produce an amount sufficient to discharge the lien. No action was taken on this petition, and the sale was confirmed, and a conveyance made of the tract without reservation, and a final decree pronounced, from which no appeal was taken. Held, that the purchaser took title to the whole of the land, including the underlying minerals.

Appeal from circuit court, Wise county. Suit to remove a cloud on title by one Vicars against one Steinman. From a de-cree in favor of plaintiff, defendant appeals. Affirmed.

R. T. Irvine, for appellant.

Pulton & McDowell, for appellee.

WHITTLE, J. The appeal in this cause is from a decree of the circuit court of Wise county in a suit in equity instituted by the appellee, Vicars, against the appellant, Steinman, to remove a cloud cast upon Vicars' title to 158 acres of land by a deed from Skeen conveying to Steinman the coal and minerals underlying the land.

The record discloses the following facts: In the year 1874, Dale Carter contracted to sell 356 acres of land situated in Wise county, Va., to Skeen, at the price of $1 per acre, and executed a title bond therefor.

Skeen having failed to pay the purchase price, and Dale Carter having died, in the year 1882 his administrators filed a bill in the circuit court of that county against the heirs at law and widow of Dale Carter, Skeen, and subpurchasers from him, including Steinman, praying for a specific performance of the contract of sale. Accordingly the court decreed a sale of the whole land to satisfy the unpaid purchase money, and the 158-aere tract, the subject of this litigation, was purchased by Counts.

At this stage of the proceedings, Steinman filed a petition in the cause in which he set forth his purchase of the coal and minerals from Skeen, the sale of the land to satisfy the vendor's lien due to Carter's estate, and prayed that the sale be set aside, that the land be first offered for sale with the coal and minerals reserved, and that the coal and minerals be not sold unless a sale of the surface failed to produce a sufficient amount to discharge the lien. Subsequently to the filing of this petition, upon which no direct action was taken, Counts paid the purchase money, and the 158 acres were conveyed to him by decree of the court, and a final decree was pronounced in the cause, from which no appeal was taken.

The land was afterwards sold at the suit of lien creditors of Counts, and purchased by E. C. Greear and J. L. Greear, who sold and conveyed the same to Vicars. It appears that Counts, the Greears, and Vicars took actual possession of the land under their respective purchases, which possession has been continuous and uninterrupted to the present time.

In his answer to Vicars' bill, Steinman set up his purchase and conveyance of the coal and minerals from Skeen; that he had been regularly assessed with and had paid taxes thereon from the date of his purchase hitherto. He avers that Vicars never had possession of the coal and minerals, that they were not sold in the suit of Carter's administrator against Skeen and others, and that the deed to Counts passed no title in them to him.

The cause was finally heard at the Sep tember term, 1900, the relief prayed for was granted, and from that decree this appeal was taken.

The first error assigned is that the trial court erred in not dismissing plaintiff's bill, being without jurisdiction in the premises. The theory upon which this contention rests is that the matter in controversy was the coal and minerals underlying the land, and that complainant's actual possession of the surface gave constructive possession merely of the coal and minerals; that, to be in a position to invoke the aid of a court of equity in such case, the plaintiff must have the legal title and be in actual possession of the interest in land from which it is sought to remove the cloud. In other words, that he must have either mined the coal and minerals, or done some act of...