ÆäÀÌÁö À̹ÌÁö
PDF
ePub

requiring actions to sell or subject realty to be [ agrees and binds himself to pay said first party brought in such county.

2. VENUE 5(2) MINERALS PURCHASE

MONEY LIENS.

Where landowner gave 99-year lease of mineral lands, for part cash, the balance to be paid within six months after beginning of quarrying, mining, or drilling, and the lease contained language appropriate to a realty conveyance, there was a sale of real property, and the owner's suit to enforce lien on minerals for purchase price was local.

3. MINES AND MINERALS 70(6)-PURCHASEMONEY LIENS-ENFORCEMENT PARTIES.

In vendor's suit in the county where the land lay to enforce purchase-money lien on minerals, against the vendee's assignee, the vendee, though resident in another county, was a necessary party, and was properly in court by summons served in the county of his residence. 4. MINES AND MINERALS 70(2)-GENERAL WARRANTY DEED-RECORDS.

Where a mineral lease, amounting to a conveyance of the minerals as land, with reservation of purchase-money lien, is of record, a subsequent conveyance by the lessors of the land, without reservation of any kind, by general warranty deed, does not convey to the vendees any right in the minerals not owned by vendors. 5. MINES AND MINERALS 54(2)-MINERAL AND OIL LEASE-CONSTRUCTION-PAYMENTWHEN DUE.

Where 99 year mineral and oil lease provided for payment when the lessee began removing stone, the balance became due at such time, whether or not the lessee acquired the right to remove stone as being covered by the terms "minerals and oils."

Appeal from Circuit Court, Hardin County. Action by Joe Hicks and wife against Will C. Kennedy and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Wm. McKee Duncan, of Louisville, and G. K. Holbert, of Elizabethtown, for appellants. H. L. James, of Elizabethtown, for appellees.

CLARKE, J. In 1903, appellees, Joe Hicks and wife, who were plaintiffs below, executed, acknowledged, and delivered to defendant Will C. Kennedy the following instrument, the description of the land omitted:

the further sum of $300.00 within six months
after any party, company or corporation begins
quarrying, mining or drilling for minerals, oils
or other things in the neighborhood of said first
party, said party of the first part to fully use
and enjoy the said land for farming purpos-
es except such part as shall be necessary for
the purpose of drilling, quarrying, etc., and a
right of way to and from place or places of
operation. Said second party shall have the
right to move or place all necessary buildings
to assist in moving stones, etc. The unpaid
and machinery and to lay tracks on said land
$300 is payable at any time second party sees
fit to begin work on said land to remove stone
and said second party is to have the right to re-
move all machinery, buildings, etc., placed on
said land by said second party.
"Given under our hands the day and date
above written."

In 1907, Hicks and wife conveyed the same land, without reservation of any kind, by general warranty deed, to W. H. Oliver and others. April 13, 1913, Kennedy assigned whatever rights he had under the above contract to the Stephensburg Stone Company, and it began to quarry stone on the land. Thereafter Hicks and wife filed this action in the Hardin circuit court against Kennedy and the Stephensburg Stone Company, seeking a personal judgment against Kennedy for the unpaid $300 mentioned in the contract, and that they be adjudged a lien upon the mineral rights in the land sold to Hicks and assigned by him to the stone company, and that same be sold to satisfy their claim.

Kennedy, a resident of Jefferson county, was served with summons in that county, and, before answering, made and saved the question of the court's jurisdiction of his person; and his first insistence here is that the court erred in ruling adversely to him on that question, a decision which disposes of all questions, save one, raised by both defendants, because all, with the single exception, depend upon whether the written instrument executed by Hicks to Kennedy was simply a rental contract, as insisted by defendants, or a conveyance of real property as maintained by plaintiffs and held by the court.

"This lease was made this 20th day of October, 1903, by and between Joe Hicks and We cannot refrain from stating here that Rosie Hicks, his wife, of Hardin county, Kentucky, parties of the first part, and Will C. upon this interesting question counsel for apKennedy of the county of Jefferson and state of pellants in their brief have presented neither Kentucky, party of the second part, witnesseth: argument nor authority, other than their "That the parties of the first part in consider- own assertion; and counsel for appellees ation of the stipulations and covenants thereinafter contained on the part of the said party have not favored us with any brief, which of the second part, to be kept and performed places upon the court, if the question is to has leased, demised and let unto the party of be discussed in the opinion in a manner the second part, his heirs, executors, adminis-justifying its recognition hereafter as authortrators and assigns for the sole and only purpose of quarrying, drilling and digging for minerals and oils of any kind, the exclusive right to all that certain tract of land situated near Stephensburg in Hardin county, Kentucky, and bounded and described as follows: [Two tracts containing 125 and 3 acres, respectively.]

"Said second party to have and to hold said premises for said purposes only for the term of 99 years from this date. In the consideration of said lease, the said second party hereby pays to the first party the sum of $200.00 cash in hand, the receipt is here acknowledged, and

itative precedent, a burden of research that ought to be borne or attempted at least by counsel, and that interferes materially with our efforts to relieve the congested condition of our docket. That the question is an interesting one and not free from difficulty may be illustrated, and the question clarified somewhat at the same time, by the following quotation from the opinion of the United States Circuit Court of Appeals in the case

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

of Halla v. Rogers, 176 Fed. 709, 100 C. C. A. 263, also reported in 34 L. R. A. (N. S.) 120:

of conveyance, was held by the Pennsylvania Supreme Court in Barnsdall v. Bradford Gas Co., 225 Pa. 338, 74 Atl. 207, 26 L. R. A. (N. S.) 614, to pass the title to the minerals as real estate, a corporeal hereditament. In that case the term was but 10 years, and the consideration was a royalty. In the lease before us the term is 99 years, and the consideration was not dependent upon the quantity of minerals produced, or whether, in fact, any were ever severed; and, while the length of term is probably immaterial, the manner of payment for the minerals in the lease involved here is such as to fix its character as a conveyance of real estate, much more certainly than the manner of payment in the lease in the Barnsdall Case.

"In an endeavor to ascertain what property, if any, is conveyed, and what rights, if any, are granted, by an instrument, whether it be called a lease or something else, affecting mining claims or minerals, some important distinctions must be observed. Minerals are land (Castillero v. United States, 2 Black, 1, 17 L. Ed. 360) so long as they are undisturbed, and must be conveyed with the same formalities as other lands are conveyed. The owner of both the minerals and the other land may convey the minerals, in which case the corpus, the corporeal hereditament, passes. Thereby a severance is effected, the vendor remaining the owner of that part of the land which does not consist of minerals, and the vendee owning the land which consists of minerals. The owner may, on the other hand, convey the minerals upon condition that the vendee extract them by a specific time, or in a stipulated mode, or that title shall pass only when certain royalties be paid; in these instances there is no pres-tor of controlling weight, viz. the manner of And this suggests it seems to us, one fac

ent consummated sale."

payment of the consideration, in the con[1] The view above expressed that the struction of a mining contract for a term of owner may convey the minerals upon condiyears. Whenever the contract employs the tion that the vendee extract them by a speci- language and observes the formalities refied time, in which case there is no present quired for a conveyance of realty, and the consummated sale, is hardly accurate, but it consideration is paid or made payable beis true that the owner may convey minerals fore severance, as here, the contract is a upon condition that the vendee extract them sale of real property; but, when the considby a specified time in such a manner that eration is not payable until after severance, there is no present consummated sale or in the contract may be a sale or an agreement such a manner that there is a present con- to sell realty or personalty, dependent upon summated sale, depending upon whether the the language employed. In this lease, the title to the minerals vests in the vendee be- language employed is sufficient, and purports fore or after separation; and so royalties to convey title to real estate; all of the forusually, if not always, become due and are a malities of execution and recordation were lien upon the minerals after separation, and observed; a part of the consideration was consequently as chattels. Whereas if, un-paid in cash, the balance payable upon the der the conveyance, the title vests with a lien reserved for unpaid purchase money payable before separation, then the lien attaches to the minerals as real estate. There

fore an action to enforce a lien for royalties upon minerals after separation is transitory (Central Ky. Natural Gas Co. v. Stevens, 134 Ky. 306, 120 S. W. 282), but if the conveyance vests the title to the minerals in the vendee and retains a lien for unpaid purchase money, due and payable before the severance, then the action to enforce that lien by sale of the minerals while a part of the land would manifestly be local to the county where the land is located, under section 62, Civil Code, which requires an action to sell, recover, or subject or subject real property to be brought in that county. Bramlett v. Couch, 105 S. W. 460, 32 Ky. Law Rep. 311. Whether a lease such as the instant one "is merely a lease of the land with the privilege of removing the minerals during a certain period, or is in reality a sale of the land, is a question which is determined by the facts of each individual case and the laws of the particular jurisdiction." 18 R. C. L. 1186. See, also, 27 Cyc. 690; Kincaid v. McGowan, 88 Ky. 91, 4 S. W. 802, 13 L. R. A. 289; note to 18 L. R. A. 492; 26 L. R. A. (N. S.) 614; 9 Ann. Cas. 524; 140 Am. St. Rep. 9.

happening of a contingency other than the removal of the minerals and regardless of whether the minerals were ever removed;

and there are no provisions for further payments of any kind either as rent or royalties.

[3, 4] We therefore think it is clear the instrument conveyed to Kennedy the minerals as land; and it follows that this is an action to subject real property to a lien retained in the deed of conveyance for unpaid purchase money, and therefore not transitory but local to Hardin county, where the land is located; that there was no misjoinder; that Kennedy was a necessary party and was properly in court; that, the conveyance to Kennedy being of record, the conveyance to Oliver et al. conveyed to them only what Hicks then owned, which they understood as is proven by the so-called waiver they executed to Kennedy; and that the Stephensburg Stone Company purchased the minerals from Kennedy subject to the unpaid purchase-money lien due Hicks.

[5] The only other question is whether the $300 matured when the stone company began quarrying rock, appellants contending that the lease covered only minerals and oil; that stone was neither; and that therefore the condition providing for the payment of

"The unpaid $300.00 is payable at any time second party sees fit to begin work on said land to remove stone."

it was the intention of both parties that this clause should be a prohibition against Mrs. Vanover leasing her adjacent property to any That the stone company, under its pur-person for the purpose of conducting a store chase from Kennedy, was quarrying and re- in competition with Justice, and it is further moving rock from the land is admitted, and admitted by Justice that his sole purpose whether the lease gave them that right or in entering into the May contract was in ornot, a question not here, it certainly pro- der that he might have inserted therein this vides for the payment of the $300 upon that prohibitive clause to prevent competition in contingency. the business he proposed to engage in.

Judgment affirmed.

(180 Ky. 632)

Shortly after this, and in violation of this clause in her contract, Mrs. Vanover leased for a term of years to one Wright a lot adjacent to the lot leased to Justice for the purpose of enabling Wright to erect a building 117(3)-VALIDITY-RESTRAINT on the lot and conduct a store therein in

VANOVER v. JUSTICE. (Court of Appeals of Kentucky. May 21, 1918.) CONTRACTS

OF TRADE.

The owner's stipulation in the lease that he would not, during the term, let any adjacent property to any other person who might set up a store thereon in opposition to the tenant, was not invalid as against public policy, as being a contract in restraint of trade; the feature objected to being merely incidental to a contract otherwise valid.

Appeal from Circuit Court, Pike County.. Action by J. F. Justice against Eliza Vanover. From a judgment for plaintiff, defendant appeals. Affirmed.

Koscoe Vanover, E. J. Picklesimer, and Cline & Steele, all of Pikeville, for appellee.

competition with Justice. Nor is there any dispute about the fact that Wright, soon after this lease was entered into, did erect a building on the leased lot and conduct therein a store in competition with Justice. After this Justice brought this suit against Mrs. Vanover to recover damages and for various breaches of her contracts made in

January and May, including the breach committed in leasing the lot to Wright. Waiving preliminary matters, there was an answer controverting the petition and asking, in a counterclaim, damages in the sum of $2,000. On a trial of the issues there was a verdict and judgment, accordingly, in favor of Justice for $350, and Mrs. Vanover appeals.

On the trial of the case the court instructed the jury that:

"Under the contract, of date May 16, 1912, the defendant agreed to not permit any person other than plaintiff to put up or engage in business in opposition to plaintiff on defendant's lands during the term of said lease; and if the jury should believe and find from the evidence that the defendant in violation of this provision of the contract leased a portion of her said premises to other persons who engaged in the mercantile business on defendant's premises and in opposition to plaintiff, and carried the should find for plaintiff on this item such a sum same line of goods as plaintiff carried, they in damages as they may believe from the evidence will fairly compensate him for the loss sustained, if anything, by reason of said breach of the contract."

CARROLL, J. In January, 1912, J. F. Justice, the appellee, entered into a written contract with Eliza Vanover, the appellant, by which he leased from her for a period of three years, with the privilege of extending the lease for three years, a vacant lot and a store building; his purpose being to conduct a general merchandise store in the leased building, and a building that he contemplated putting on the vacant lot. After this it appears that Justice learned that Mrs. Vanover was about to lease some adjacent property to parties who intended to conduct in it a general store in competition with him, and in May, 1912, he leased from Mrs. Vanover a vacant lot adjoining the lot he had leased in January for the purpose of erecting a building on the lot. The lease of this lot ran for five years, with the privilege of And the only question on this appeal to two more years. At the expiration of the which our attention is directed by counsel January lease and the May lease any build- for Mrs. Vanover is the correctness of this ings erected on the leased premises were instruction. On the trial of the case, apto revert to Mrs. Vanover. In the May lease it was stipulated that: "First party, Mrs. Vanover, agrees to not let any other person put up in opposition to second party, J. F. Justice." The purpose of inserting this clause in the lease was to prevent Mrs. Vanover from leasing other adjacent lots that she owned to persons for the purpose of operating a store in competition with the store that Justice intended to conduct in the buildings on the lots leased by him. It will be observed that the quoted language is not ac- Restating briefly the point at issue, so that curately expressed, but it is conceded that it may be clearly understood, Justice, for a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-21

propriate exceptions and objections were saved to all the evidence tending to show that Justice had suffered any damage by reason of this breach of the contract, and the instruction was likewise excepted to upon the ground that the prohibitive clause was in restraint of trade and void, and therefore even if it were breached there could be no recovery by Justice. So that the only question we need consider on this appeal is this contention of counsel for Mrs. Vanover.

to the principal contract of sale. And that being true, the case falls within the general rule as above announced, and must be upheld. In so holding, we think the circuit judge was right."

short term of years, was induced to, and did, I territory adjacent thereto was merely ancillary lease some property from Mrs. Vanover on her agreement that she would not, during the term of the lease, let any adjacent property to any other person who might set up a store thereon in opposition to Justice. Now the question is, Was that agreement on the part of Mrs. Vanover such restraint of trade as to make it void as against public policy?

We have had occasion in a number of cases

to consider the question of the validity of conLracts in restraint of trade, and statements of the ruling we have set down in respect to this question will be helpful in disposing of In Clemons v. Meadows, 123 Ky. 178, 94 S. W. 13, 29 Ky. Law Rep. 619, 6 L. R. A. (N. S.) 847, 124 Am. St. Rep. 339, Meadows, who operated a hotel, agreed with Clemons, who was conducting a competing hotel in a small town, in consideration of a stipulated sum, to close his hotel for a term of years. Clemons brought suit against Meadows to recover damages for a breach of the contract, and the court, after recognizing the general rule that contracts in partial restraint of trade would be upheld, said that this contract was void as against public policy, upon the ground that the sole consideration was the agreement to pay a sum of money to Meadows in consideration of his agreement to close his hotel. In that case, as will be seen, the agreement to close the hotel was not incidental to, or a part of, any other contract; it was simply a naked agreement for a stipulated consideration not to engage in business. In Barrone v. Moseley Bros., 144 Ky. 698, 139 S. W. 869, the court, in upholding a contract by which Barrone sold to Moseley Bros. a laundry business and agreed to not again engage in that business in a specified period, said:

"It is, however, a very general rule that all contracts of this character must be incident to and in support of another contract, or sale, in which the covenantor has an interest which is in need of protection. In other words, no conventional restraint of trade will be enforced

unless the covenant embodying it is merely ancillary to the main purpose of a lawful trade, and is necessary to protect the covenantee in the enjoyment of the legitimate fruits of the contract, or to protect him from the dangers of an unjust use of those fruits by the other party."

The court then proceeded to refer to the Clemons and other cases holding that where a party for a mere money consideration agreed to quit business, or not to engage in business, the contract would be void, and fur

ther said:

To the same effect is Breeding v. Tandy, 148 Ky. 345, 146 S. W. 742; Fields v. Holland & Son, 158 Ky. 544, 165 S. W. 699, L. R. A. 1915C, 865; Nickell v. Johnson, 162 Ky. 520, 172 S. W. 938.

Applying, now, the law as laid down in these cases to the facts of the case before us, we find that Mrs. Vanover, as a part of, and incidental to, a contract that she entered into with Justice for a term of years, agreed not to rent any of her adjacent property to any other person to set up a store in competition with Justice. Now, under all the cases, if Mrs. Vanover had obligated herself not to set up in business for a term of years in a building adjacent to the property she had leased to Justice, the contract would have been binding upon her, and we can see no distinction between a contract like this and a contract by which she agreed not to rent her property to another to set up a store in competition with Justice.

It is true that this contract was intended to prevent competition in trade, but it was only a partial restraint of trade, and did not bind any person except Mrs. Vanover, and only her for a short term of years. It did not prevent any other person from entering into competition with Justice, or interfere with the establishment of stores on property owned by any other person. There can be no doubt about the validity of so much of the contract as related to the leasing of the lot to Justice, or the agreement of Justice to build a house thereon, and the vice that would have been in the stipulation prohibiting Mrs. Vanover from leasing her property to any other person to conduct a store in opposition to Justice, if this stipulation had contained the whole contract between them, was eliminated by the fact that it was a part of and incidental to another valid contract. Wherefore the judgment is affirmed.

(180 Ky. 587)

AMBERSON v. FOWLER et al. (Court of Appeals of Kentucky. May 17, 1918., OFFICERS 87-TITLE TO OFFICE-USURPATION-ACTION-PLAINTIFF.

Since Civ. Code Prac. §§ 483-485, confine the right to bring action for usurpation of a county office to the person entitled to the office or the commonwealth, a stranger cannot bring such action, although no one is entitled to the office and the commonwealth's attorney has refused to do so.

"But the facts of the case at bar do not oring this contract within the distinction above laid down. It is true that the contract, in words, requires the appellants to abandon a certain line of laundry business; but when the contract, as a whole, is read, it is reasonably plain that the appellants sold this business to the appellees for $1,600, a valuable consideration, and that the agreement to abandon that business in the city of Bowling Green and the Affirmed.

Appeal from Circuit Court, Union County. Petition by James H. Amberson against Earl L. Fowler and others. From judgment for defendants, petitioners appeal.

Truman Drury, of Morganfield, for appellant. Earl L. Fowler, of Morganfield, Ruby Laffoon, of Madisonville, and N. Powell Taylor, of Henderson, for appellees.

county attorney, there was no other person entitled to the office who could bring the suit; and, as the commonwealth's attorney refused to proceed in direct violation of the statute, any citizen had the right to bring the action, and the circuit court had jurisdiction of this action. This, however, by no means follows. The fact that a public officer declines to sue under authority expressly conferred upon him does not transfer that right or duty to some one, or every one, who is not an officer.

MILLER, J. Appellant J. H. Amberson, a private citizen proceeding in his own right and for the use and benefit of the commonwealth, brought this action against the appellee Earl L. Fowler, charging him with having usurped the office of county attorney of Union county. As a basis for the charge of usurpation the petition alleges: (1) that Moreover, it is a well-recognized legal Fowler was born January 4, 1894, and was principle that suits of this character should less than 24 years of age when he was elect- be brought by some public officer, or by some ed; (2) that at the time of his election he one personally interested in the office; and, had not been a citizen and resident of Union when the Legislature names the public ofcounty for 2 years, and was not so at the ficer who may bring the action, it necessarily time the suit was filed on February 21, 1918; excludes, by implication, the right of any and (3) that he was not a practicing lawyer other person to bring the action. If it were of 2 years' standing when he was elected, otherwise, any office holder might be harand has never been legally admitted to prac-assed by innumerable suits at the hands of tice law in Kentucky. It is further alleged some disappointed person, probably wholly that plaintiff, before the institution of this irresponsible. suit, requested N. Powell Taylor, the comIf the suit is brought by a private citizen, monwealth's attorney for the judicial dis- he must show specifically his right to the trict embracing Union county, to institute an office; otherwise he cannot maintain the action in the name of the commonwealth action. This principle is thoroughly estabagainst Fowler for usurping the office of lished in this jurisdiction. Wheeler v. Comcounty attorney, stating to the common-monwealth, 98 Ky. 59, 32 S. W. 259, 17 Ky. wealth's attorney the grounds of usurpation Law Rep. 636; Tillman v. Otter, 93 Ky. 600, as above stated, but that Taylor declined to 20 S. W. 1036, 14 Ky. Law Rep. 586, 29 L. R. bring the action; and for that reason he is A. 110; King v. Kahne, 87 S. W. 807, 27 Ky. made a party defendant to this action. The Law Rep. 1080; Wilson v. Tye, 126 Ky. 34, plaintiff also filed as a part of the petition 102 S. W. 856, 31 Ky. Law Rep. 491; Dorain a certified copy of an order of the circuit court of Vanderburgh county, Ind., showing. Walters, 132 Ky. 54, 116 S. W. 313; Franthat the defendant Fowler had been admit- cis v. Sturgill, 163 Ky. 664, 174 S. W. 753. that the defendant Fowler had been admit-The special demurrer putting in issue appel-. ted to practice at that bar on September 11, lant's right to maintain this action was prop

1916. The circuit court sustained a special demurrer to the petition, and Amberson appeals.

Sections 483, 484, and 485 of the Civil Code of Practice read as follows:

"483. If a person usurp an office or franchise, the person entitled thereto, or the commonwealth, may prevent the usurpation by an ordinary action.

"484. It shall be the duty of the several commonwealth attorneys to institute the actions mentioned in this chapter against usurpers of county offices or franchises, if no other person be entitled thereto, or if the person entitled fail to institute the same during three months after the usurpation.

"485. For usurpation of other than county of fices or franchises, the action by the commonwealth shall be instituted and prosecuted by the Attorney General."

It would seem that these explicit provisions of the Code necessarily require an affirmation of the judgment, since the right to prevent the usurpation of a county office is there confined to the person entitled to the office, or to the commonwealth's attorney; a stranger cannot take that duty upon himself.

erly sustained.

Judgment affirmed.

[blocks in formation]

FENDANT-REFUNDING BOND.

Civ. Code Prac. § 410, providing that a refunding bond shall be executed before the rendition of judgment against a defendant constructively served, requires no such bond, where persons out of the state over 14 years of age Code Prac. § 56. are personally served under provision of Civ.

2. GUARDIAN AND WARD 92

SALE OF

LAND-BOND BY GUARDIAN. Where land of an infant is sold to satisfy debts of his ancestor, and because of its indivisibility more land is sold than would have been such infant must file a bond, as required by Civ. necessary to satisfy such debts, the guardian of Code Prac. §§ 493, 497, as to excess of such purchase price, or such excess shall not be paid by purchaser, but shall remain a lien on land until infant becomes of age, notwithstanding exception of cases mentioned in section 489, subds.

Appellant argues however, that since the petition alleges that Fowler was elected | 1, 2.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« ÀÌÀü°è¼Ó »