Warren S. v. Boggs S.

• Decision Date: 15 November 1918
• Citation: 83 W.Va. 89
• Court: West Virginia Supreme Court
• Parties: Agnes R. Warren et als. v. J. 0. Boggs et als.

83 W.Va. 89

Agnes R. Warren et als.

v.J. 0. Boggs et als.

Supreme Court of Appeals of West Virginia.

Submitted October 15, 1918.

Decided November 15, 1918.

1. Compromise and Settlement Suit for Share of royalty Stip-

vlations Conditions Precedent to Suit.

Although the parties may agree in writing compromising their claims to real estate that, should it thereafter be ascertained that any well producing oil has theretofore been drilled on a certain parcel of land, part of the royalty reserved in the lease and paid to one of them shall be refunded to the other, the stipulation does not, in the absence of terms expressly indicating or necessarily implying an intention to create a condition precedent to the maintenance of a suit or action to recover such share of the oil royalty or to require an accounting therefor, inhibit such proceeding until the well is located definitely, either by the joint action of the parties or by judicial inquiry instituted solely for that purpose. (p. 95).

2. Partition Equity Jurisdiction Agreement of Parties Loca-

tion of Well.

Where by such compromise agreement and pleadings the parties have definitely determined the title and boundaries of the land involved, equity is not deprived of its jurisdiction in a partition suit to determine the location of a well in another tract outside of such boundaries, as the location may readily be ascertained by a competent surveyor. (p. 95).

3. Same Location of Well Determination.

In such case the correctness of the ex parte location may be put in issue by the adversary party and the issue determined in the equitable proceeding. (p. 95).

4. Same Equitahle Jurisdiction Tenancy.

Equity alone has jurisdiction to partition personal as well as real property held by cotenants under a common ownership. (p. 96).

5. Same Oil Royalty "Personal Property."

Royalty in oil brought to the surface is personal property and as such is susceptible of partition among its co-owners. (p. 96).

6. Discovery Necessity Equity.

A bill alleging a cause cognizable in equity and praying also for discovery in aid of the relief sought need not show the discovery to be indispensable for lack of other proof, though the converse is true where the discovery is the sole ground of equitable cognizance of the cause pleaded0. (p. 98).

7. EQUITY Jurisdiction Remedy at Law.

To deny equity jurisdiction because of a remedy at law, the legal remedy must be adequate to the demands of the particular case, and as full, complete and efficacious as that given in equity, and must not leave open for future litigation matters really and substantially involved. (p. 98).

Appeal from Circuit Court, Roane County.

Bill by Agnes R. warren, who sues, etc., and others, against J. 0. Boggs and others. From a final decree dismissing upon demurrer the original, amended, and supplemental bills, plaintiffs appeal, and move to reverse decree.

Reversed, and remanded.

Harper & Baker and Pendleion, Mathews & Bell for appellants.

Y. B. Archer, C. N. Matheny and Geo. F. Cunningham, for appellees.

Lynch, Judge:

This case is before us upon appeal from a final decree dismissing upon demurrer the original, amended and supplemental bills, and upon a motion to reverse made pursuant to amended section 26, ch. 135, Barnes' Code 1918. Among the objects sought through the instrumentalities of the pleadings is the specific performance of a written compromise contract dated May 12, 1913, in relation to a controversy in respect of the ownership of a tract of 94 acres of land located in Roane County, formerly claimed to be owned by George B. Warren, who died intestate October 7, 1899. Surviving him were Margaret B. Warren, his widow, and Thomas B. Warren, Myrtle Leatherberry, Walter Warren, Lizzie Warren, Eula I. Warren, Harry H. Warren, Mary A. Warren and George Foster Warren, his only children and heirs at law, some of whom then were mere infants. Thomas B. Warren died intestate December 21, 1899, and surviving him were Maude Warren, his widow, who also died soon thereafter, and Agnes R. Warren, their only child, an infant.

The land involved, originally two tracts, was sold November 27, 1902, for the nonpayment of taxes assessed in the name of George B. Warren, and purchased by H. F. Goff who obtained a tax deed therefor on January 29, 1906, and on the same date Goff conveyed the title to the defendant J. O. Boggs, who, together with his wife M. M. Boggs, leased to the Carter Oil Company for oil and gas purposes the 94 acres, together with other lands owned by the husband, covering in all 190 acres. In April, 1913, Mary A. "Warren and George Foster Warren, claiming the right to redeem their interest in the land from the tax sale, within one year after arriving at 21 years of age conveyed their interests to A. G. Mathews, who, together with Agnes R. Warren, the infant plaintiff, by Walter Pendleton, her next friend, immediately notified the lessors and lessee in the oil and gas lease of their claim of right to redeem the land from the delinquency under the provisions of sec. 30, ch. 31, Barnes' Code 1918.

In part overlapping and in part outside of the 94 acres is an 18-acre parcel of land also covered by the lease to the Carter Oil Company. In a compromise agreement entered into May 12, 1913, the infant plaintiiff by her guardian, Walter Pendleton, and his coplaintiff, A. G. Mathews, through whom Pendleton, Mathews & Bell, a partnership, and Harper & Baker, a partnership, acquired interests in the royalty oil and gas rentals reserved in the lease, concede the superiority of Boggs' title to the 18 acres. And therein Boggs and wife release to the infant plaintiff and to A. G. Mathews an undivided seven-eighths of the oil royalty and gas rentals so reserved "which shall hereafter (thereafter) arise or accrue or be produced from" the 94 acres exclusive of the area thereof within the exterior boundaries of the 18-acre tract, the geometrical courses, distances and monuments demarking the 18 acres being clearly defined and set forth, but not the courses, distances and monuments of the actual interference. And thereby A. G. Mathews and his wife Mattie and Agnes R. warren, by her guardian, release to J. 0. Boggs all claim to any part of the surface of the 94 acres, and ratify the Boggs' lease to the Carter Oil Company, provided that company shall on that part of the 94 acres not embraced Avithin the boundary of the interlock drill the proper number of wells to offset the Avells drilled by the same company on other lands leased to it by Boggs and wife. The parties to the contract mntually agree to execute and deliver proper and necessary deeds to effeetuate the object and purposes of the agreement, and Pendleton as such guardian to institute and prosecute in the circuit court of Roane County to finality such proceeding as will procure authority to grant, and when procured to grant, to J. O. Boggs the surface rights of Agnes R. Warren in and to the 94-acre tract.

The bills assert complete compliance by the plaintiffs with these provisions and conditions, the only provisions and conditions of the contract essential to an accurate understanding of the issues involved, except those contained in the seventh and eighth paragraphs, which we quote at length:

"Seventh: It is further understood that should it hereafter be ascertained that any well producing oil has heretofore been drilled on said tract of 94 acres of land, outside of the interlock of said 18-acre tract of land, the royalty of which has been paid to the said J. 0. Boggs, then the said J. 0. Boggs agrees and binds himself to account to the said A. G. Mathews and Walter Pendleton, Guardian, for the seven-eighths of said royalty oil which may have been received by him."

"Eighth: It is understood that this agreement is a full settlement and compromise of all the matters in difference between the parties hereto on account of the said 94-acre tract of land, and of all questions connected therewith or arising therefrom, and that the parties hereto shall sign all proper and necessary division orders and transfer orders to the end that the royalty oil produced from said tract of land may be sold by the parties hereto, according to their respective interests as hereinbefore set out."

Another object to be achieved through this litigation, in addition to the specific enforcement of the compromise agreement, and as a foundation for such relief, is a discovery and disclosure by the defendants Carter Oil Company and Eureka Pipe Line Company of the quantity of oil produced from well No. 5 and delivered into the pipe line to the credit of J. 0. Boggs as and for the one-eighth royalty reserved in the lease made by him, the date and the price thereof, and for partition thereof in kind if the same has not yet been sold, and, if Boggs has received, sold and disposed of the royalty, that he be required to account to the plaintiffs for seven-eighths thereof with interest; and as a further purpose that the court fix the rights and interests of the parties entitled to share in the oil hereafter to be produced from said well, in order, it is claimed, to prevent a multiplicity of suits in the future.

The foundation and necessity for this information rests first upon that provision of the contract which requires Boggs to account to the infant plaintiff and to Pendleton, Mathews & Bell and Harper & Baker for a stipulated seveneighths of the oil royalty from any well drilled on that part of the 94 acres not within the admitted interlock, such being the location of well No. 5 according to the allegations of the pleadings. The defendants Carter Oil Company and Eureka Pipe Line Company answered the original bill and undertook to comply with its demand for discovery as to the production of the well, but plaintiffs by an amendment virtually expressed a measure of dissatisfaction with the disclosure, which the respondents conceded was only approximately correct because of the admixture of the oils from other wells on...