Swearingen" v. Petitioner

• Decision Date: 23 March 1901
• Citation: 49 W.Va. 312
• Court: West Virginia Supreme Court
• Parties: swearingen" et al v. steers et al.

49 W.Va. 312

swearingen" et al

v.steers et al.

Supreme Court of Appeals of West Virginia.

Decided March 23, 1901.

1. Equity Jurisdiction Mining LeaseAccounting.

If the rent or royalty reserved in the leasing of mineral property is dependent upon the amount of mineral taken, a bill in equity will lie to compel an accounting by the operators or lessees of the mines, (p. 314).

2. Parties to Actions at Law Equity.

A person, though acting in different capacities, cannot be both plaintiff and defendant in an action at law, though joined with others. The rule is otherwise in. equity, which alone can afford a remedy in such cases, (p. 315).

Appeal from Circuit Court, Wood County. Bill by C. A. Swearengen and J. W. Vandervort against Thomas J. Steers and others. Decree for defendants. Plaintiffs

J. W. Yandervort, for appellants.

Y. B. Archer and William Beard, for appellees.

Dent, Judge:

C. A. Swearingen and J. W. Yandervort filed a bill in chancery against Thomas J. Steers and others in the circuit court of Wood County. The bill was dismissed on demurrer and plaintiffs appeal.

The facts necessary for determination of this controversy as set out in the bill and admitted by the demurrer are as follows: About the 1st day of October, 1895, plaintiffs C. A. Swearingen and defendants F. E. Waterman, L. B. Dellicker, Edward Nelly, William Boswell, A. B. White and Thomas J. Steers entered into a mining co-partnership to secure leases and operate for lead and zinc near Joplin, Mo. Thomas J. Steers was to secure the leases and operate the same, and the other partners were to furnish money to the amount of two thousand dollars, to be divided into shares at the rate of fifty dollars per share. F. E. Waterman sub-scribed for five shares, L. B. Dellicker, ten, Edward Nelly, five, C. A. Swearingen ten, William Boswell five, and A. B. White five shares. C. A. Swearingen sold two and one-half shares to the plaintiff J. W. Vandervort. Thomas J. Steers secured a fortyacre lease, which proving non-productive, was temporarily abandoned. In the mean time he acquired a thirty-eight acre lease at the rate of twenty per cent, royalty, ten per cent, to go to the landowners, and ten per cent, to original lessee, George W. Lear, the one-half of the last ten per cent, royalty or five per cent, said Steers represented was, acquired for the mining company or syndicate. Said Steers in partnership with said L. B. Dellicker entered into an arrangement by which they undertook to operate said thirty-eight acre lease and pay the twenty per cent, royalty, to which the same was subject according to the terms of the original lease, and thus agreeing to pay ten per cent, royalty to the land owner, five per cent, royalty to George W. Lear, and five per cent, royalty to the syndicate of which they were members. Thomas J. Steers had charge of and managed all the operations, kept the accounts and received the funds. The plaintiffs in behalf of themselves and other members of the syndicate demanded an account of the five per cent, royalty secured to them. Steers furnished an account for the year 1896, showing the gross production of the lease to have been about fifteen thousand five hundred and seventy-seven dollars and twenty-seven cents, that the royalty coming to the residue of the syndicate other than himself and Dellicker was only about one hundred and ninetyone dollars and sixty-five cents, while there was due them for pumping seven hundred and sixty dollars, leaving a balance due them after deducting royalties five hundred and sixty-eight dollars and sixty-five cents for the other members of the syndicate. For the time since elapsed Steers has rendered no account of the royalties, but at the same rate the other members of the syndicate have probably doublted their indebtedness to Steers and Dellicker. So that it would seem from the...