Vantage Mining Co. v. Baker
| Decision Date | 07 April 1913 |
| Citation | 155 S.W. 466,170 Mo. App. 457 |
| Parties | VANTAGE MINING CO. v. BAKER et al. |
| Court | Missouri Court of Appeals |
A mining lease executed jointly by husband and wife of real estate, in which the wife had only an inchoate dower right, stipulated for the payment of rent or royalty, a part to the husband and a part to the wife. The wife died, and pending administration of her estate the husband sold to a child of the parties all of his right and interest in and to the distributive share of the estate of the wife "as said estate is shown by the records of the probate court." Held, that the assignment passed the husband's interest in the part of the royalty payable to the wife; the quoted words only pointing out where the parties might obtain more definite information as to the amount and nature of the estate; an interest in which was being assigned.
Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.
Bill of interpleader by the Vantage Mining Company against Horace M. Baker, W. W. Baker, and others to determine the rights of the parties to royalties under a mining lease. From a judgment adjudging the rights of the parties, Horace M. Baker and W. W. Baker appeal. Reversed and remanded, with instructions.
McReynolds & Halliburton, of Carthage, for appellant W. W. Baker and respondents W. W. Baker, Clyde E. Baker, Bessie Baker Burchard, and H. Durand Baker. W. R. Robertson and S. W. Bates, both of Webb City, and R. M. Sheppard, of Joplin, for appellant and respondent H. M. Baker.
The plaintiff in this case is and has been mining certain land in Jasper county, Mo., under a mining lease of the usual form used in that district, except as to the clause providing for the payment of the rent or royalty, which is as follows: "The party of the second part, his successors and assigns, shall pay to the parties of the first part on Monday of each week as rent or royalty 5 per cent. to H. M. Baker and 3 per cent. to Sarah E. Baker, of the market value of all ores mined or sold during the preceding week." The beneficiaries of this rental clause, H. M. Baker and Sarah E. Baker, are the grantors in said lease and at the time of making same were husband and wife. H. M. Baker was the owner of the land demised, and his wife had no interest in the same at the time she joined in making the lease except her inchoate right of dower. For some years after making the lease the plaintiff Mining Company paid the royalty of 8 per cent. of the value of the ores mined and sold regularly and without any question as to the ownership of same to said H. M. Baker and Sarah E. Baker in the proportions specified in the above clause of the lease — five-eighths to H. M. Baker and three-eighths to Sarah E. Baker. Sarah E. Baker died in May, 1909, and until the final settlement of her estate in the probate court two years later the plaintiff, without any question being raised as to the ownership of the royalty, continued to pay the same in the same proportions to H. M. Baker and to the estate of Sarah E. Baker. In October, 1911, H. M. Baker first set up the claim that he was entitled to all the rent and royalty accruing under this lease and notified plaintiff to that effect and to pay all of such royalty to him and no part of the same to the heirs of his deceased wife. The wife's heirs — their common children — made claim of right to the three-eighths of the royalty payable under the lease to their mother. Thereupon the plaintiff filed its bill of interpleader, making said H. M. Baker and the four children of Sarah E. Baker parties defendant. The defendants appeared and by separate answer asserted their respective claims to the royalty accruing under the lease, and by consent plaintiff has been paying same into court as it accrued.
I. The main question to be determined in this case arises on the appeal of H. M. Baker, and is whether after the death of Sarah E. Baker the 3 per cent. rent and royalty, specified in the lease to be paid to her, belongs to her husband, H. M. Baker, as owner of the land, or to her children, the other defendants, as her heirs. The trial court held that such part of the royalty properly belonged to the children as heirs. H. M. Baker appealed and urges here that on the death of Sarah E. Baker, and settlement of her estate, that part of the royalty specified to be paid to her followed the ownership of the land and became payable to him as such owner. That question will now be examined.
It will be conceded, as contended by appellant, that the only interest Sarah E. Baker had in the land covered by the lease was her inchoate right of dower; and that such right does not rise to the dignity of an interest or estate in land and cannot while inchoate be valued in money, nor assigned, aliened, or transmitted except by joining in a conveyance with her husband. Brannock v. Magoon, 216 Mo. 722, 116 S. W. 500, and authorities there cited. Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S. W. 480, 14 Ann. Cas. 652.
It is, however, shown by these same authorities that the inchoate right of dower is an incumbrance on and affects the title to land. It is a substantial right, possessing in law many of the incidents of property, and even the courts cannot deprive the wife of this right or compel her to relinquish or assign it by joining her husband in any conveyance. Real Estate Co. v. Spelbrink, 211 Mo. 671, 111 S. W. 480, 14 Ann. Cas. 652. There can be no question therefore that her signing the mining lease in question, jointly with her husband, furnished a sufficient consideration for the provisions of the lease making a part of the rent or royalty payable to her. "A wife has no interest in her husband's lands which she can convey by separate deed, but she does have an interest which she can release by joining with her husband, and such release may be a valuable consideration." Murray v. Cazier, 23 Ind. App. 600, 53 N. E. 476, 477, 55 N. E. 880.
It is also true that rent generally follows the ownership of land, and any transfer of land by deed, will, or inheritance carries with it the right to collect and receive the rent. Stevenson v. Hancock, 72 Mo. 612, 615; Page v. Culver, 55 Mo. App. 606; 24 Cyc. 1172. "Rent is incident to the reversion, and whenever that is severed by the act of the parties or the act of the law, the rent will follow the reversion and be payable to the assignee thereof." Taylor, Landlord & Tenant, § 383.
But did the relation of landlord and tenant exist between Sarah E. Baker and the lessee? We cannot see how it could when she had neither possession nor estate in the land. She was not the landlord. 24 Cyc. 923; Connolly v. Giddings, 24 Neb. 131, 37 N. W. 939.
As we have seen, the wife, having only an inchoate right of dower, had no possession, title, or estate in the land at the time the lease was made, and she had no reversion therein after it was made. "Reversion is the residue of an estate left by operation of law in the grantor or his heirs or in the heirs of a testator commencing in possession on the determination of a particular estate granted or devised." Black's Law Dictionary, Reversion; 2 Blackstone's Comm. 175. At the death of the wife there was no reversion passing from her to the husband or any one else for the rent reserved to follow. Her right of inchoate dower perished with her. Learned counsel are entirely in error in assuming that, because she was one of the grantors, on her death the reversion passed from her to the husband and the rent payable to her would follow that reversion. Her death merely extinguished her inchoate right of dower, and nothing passed to any one any more than there would on the extinguishment of a mortgage on the land. For the purposes of this case the wife was a stranger to the...
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