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

the further sum of $300.00 within six months 2. VENUE O 5(2) MINERALS PURCHASE

after any party, company or corporation begins MONEY LIENS.

quarrying, mining or drilling for minerals, oils Where landowner gave 99-year lease of min- or other things in the neighborhood of said first eral lands, for part cash, the balance to be paid party, said party of the first part to fully use within six months after beginning of quarrying, and enjoy the said land for farming purposmining, or drilling, and the lease contained lanes except such part as shall be necessary for guage appropriate to a realty conveyance, there the purpose of drilling, quarrying, etc., and a was a sale of real property, and the owner's right of way to and from place or places of suit to enforce lien on minerals for purchase operation. Said second party shall have the price was local.

right to move or place all necessary buildings 3. MINES AND MINERALS 70(6)—PURCHASE-to assist in moving stones, etc. The unpaid

and machinery and to lay tracks on said land MONEY LIENS-ENFORCEMENT-PARTIES. In vendor's suit in the county where the fit to begin work on said land to remove stone

$300 is payable at any time second party sees land lay to enforce purchase-money lien on and said second party is to have the right to reminerals, against the vendee's assignee, the ven- move all machinery, buildings, etc., placed on dee, though resident in another county, was a said land by said second party. necessary party, and was properly in court by

"Given under our hands the day and date summons served in the county of his residence. above written." 4. MINES AND MINERALS Om70(2)-GENERAL WARRANTY DEED-RECORDS.

In 1907, Hicks and wife conveyed the same Where a mineral lease, amounting to a con- land, without reservation of any kind, by veyance of the minerals as land, with reserva- general warranty deed, to W. H. Oliver and tion of purchase-money lien, is of record, a sub

others. sequent conveyance by the lessors of the land,

April 13, 1913, Kennedy assigned without reservation of any kind, by general war whatever rights he had under the above conranty deed, does not convey to the vendees any tract to the Stephensburg Stone Company, right in the minerals not owned by vendors.

and it began to quarry stone on the land. 5. MINES AND MINERALS O 54(2)—MINERAL Thereafter Hicks and wife filed this action

AND OIL LEASE-CONSTRUCTION-PAYMENT-
WHEN DUE.

in the Hardin circuit court against Kennedy Where 99 year mineral and oil lease pro- and the Stephensburg Stone Company, seekvided for payment when the lessee began re-ing a personal judgment against Kennedy moving stone, the balance became due at such for the unpaid $300 mentioned in the contime, whether or not the lessee acquired the right to remove stone as being covered by the tract, and that they be adjudged a lien upon terms "minerals and oils."

the mineral rights in the land sold to Hicks

and assigned by him to the stone company, Appeal from Circuit Court, Hardin County, and that same be sold to satisfy their claim. Action by Joe Hicks and wife against Will

Kennedy, a resident of Jefferson county, C. Kennedy and others. Judgment for plain- was served with summons in that county, tiffs, and defendants appeal. Affirmed.

and, before answering, made and saved the Wm. McKee Duncan, of Louisville, and G. question of the court's jurisdiction of his K. Holbert, of Elizabethtown, for appellants. person; and his first insistence here is that H. L. James, of Elizabethtown, for appel- the court erred in ruling adversely to him lees.

on that question, a decision which disposes

of all questions, save one, raised by both deCLARKE, J. In 1903, appellees, Joe fendants, because all, with the single exHicks and wife, who were plaintiffs below, ception, depend upon whether the written executed, acknowledged, and delivered to de- instrument executed by Hicks to Kennedy fendant Will C. Kennedy the following in- was simply a rental contract, as insisted by strument, the description of the land omit, defendants, or a conveyance of real properted:

ty as maintained by plaintiffs and held by "This lease was made this 20th day of Oc- the court. tober, 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 therein- have not favored us with any brief, which after contained on the part of the said party 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 miner-itative precedent, a burden of research that als and oils of any kind, the exclusive right to all ought to be borne or attempted at least by that certain tract of land situated near Ste- counsel, and that interferes materially with

in , and bounded and described as follows: [Two 'tracts our efforts to relieve the congested condition containing 125 and 3 acres, respectively.]

of our docket. That the question is an in"Said second party to have and to hold said teresting one and not free from difficulty may premises for said purposes only for the term of be illustrated, and the question clarified 99 years from this date. In the consideration of said lease, the said second party hereby pays somewhat at the same time, by the followto the first party the sum of $200.00 cash in ing quotation from the opinion of the United hand, the receipt is here acknowledged, and States Circuit Court of Appeals in the case

Om 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., of conveyance, was held by the Pennsyl263, also reported in 34 L. R. A. (N. S.) 120 : vania Supreme Court in Barnsdall v. Brad

"In an endeavor to ascertain what property, ford Gas Co., 225 Pa. 338,74 Atl. 207, 26 if any, is conveyed, and what rights, if any, are L. R. A. (N. S.) 614, to pass the title to the granted, by an instrument, whether it be called minerals as real estate, a corporeal hereditaa lease or something else, affecting mining claims or minerals, some important distinctions ment. In that case the term was but 10 must be observed. Minerals are land (Castil- years, and the consideration was a royalty. lero v. United States, 2 Black, 1, 17 L. Ed. 360) In the lease before us the term is 99 years, so long as they are undisturbed, and must be conveyed with the same formalities as other and the consideration was not dependent uplands are conveyed. The owner of both the on the quantity of minerals produced, or minerals and the other land may convey the whether, in fact, any were ever severed ; minerals, in which case the corpus, the cor and, while the length of term is probably imporeal hereditament, passes. Thereby a severance is effected, the vendor remaining the own- material, the manner of payment for the miner of that part of the land which does not con- erals in the lease involved here is such as to sist of minerals, and the vendee owning the fix its character as a conveyance of real esland which consists of minerals. The owner may, on the other hand, convey the minerals tate, much more certainly than the manner upon condition that the vendee extract them by of payment in the lease in the Barnsdall a specific time, or in a stipulated mode, or Case. 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 facent 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 condi- years. 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 happening of a contingency other than the lien reserved for unpaid purchase money removal of the minerals and regardless of payable before separation, then the lien at

whether the minerals were ever removed ; taches to the minerals as real estate. Therefore an action to enforce a lien for royalties and there are no provisions for further payupon minerals after separation is transitory ments of any kind either as rent or royalties. (Central Ky. Natural Gas Co. v. Stevens, 134

[3, 4] We therefore think it is clear the inKy. 306, 120 S. W. 282), but if the conveyance strument conveyed to Kennedy the minerals vests the title to the minerals in the vendee as land; and it follows that this is an acand retains a lien for unpaid purchase mon- tion to subject real property to a lien reey, due and payable before the severance, tained in the deed of conveyance for unpaid then the action to enforce that lien by salé purchase money, and therefore not transiof the minerals while a part of the land tory but local to Hardin county, where the would manifestly be local to the county land is located; that there was no misjoinwhere the land is located, under section 62, der; that Kennedy was a necessary party Civil Code, which requires an action to sell, and was properly in court; that, the conveyrecover, or subject real property to be ance to Kennedy being of record, the conveybrought in that county. Bramlett v. Couch, ance to Oliver et al. conveyed to them only 105 S. W. 460, 32 Ky. Law Rep. 311. Wheth- what Hicks then owned, which they underer a lease such as the instant one “is merely stood as is proven by the so-called waiver a lease of the land with the privilege of re they executed to Kennedy; and that the moving the minerals during a certain period, Stephensburg Stone Company purchased the or is in reality a sale of the land, is a ques- minerals from Kennedy subject to the untion which is determined by the facts of each paid purchase-money lien due Hicks. individual case and the laws of the particu- [5] The only other question is whether the lar jurisdiction.” 18 R. C. L. 1186. See, al- $300 matured when the stone company began so, 27 Cyc. 690; Kincaid v. McGowan, 88 quarrying rock, appellants contending that Ky. 91, 4 S. W. 802, 13 L. R. A. 289; note the lease covered only minerals and oil; to 18 L. R. A. 492; 26 L. R. A. (N. S.) 614; that stone was neither; and that therefore 9 Ann. Cas. 524; 140 Am. St. Rep. 9.

the condition providing for the payment of

“The unpaid $300.00 is payable at any time, it was the intention of both parties that this second party sees fit to begin work on said land clause should be a prohibition against Mrs. to remove stone."

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. Judgment affirmed.

the business he proposed to engage in.

Shortly after this, and in violation of this

clause in her contract, Mrs. Vanover leased (180 Ky. 632)

for a term of years to one Wright a lot adjaVANOVER V. JUSTICE.

cent to the lot leased to Justice for the pur(Court of Appeals of Kentucky. May 21, 1918.) pose of enabling Wright to erect a building CONTRACTS Ow117(3)—VALIDITY-RESTRAINT on the lot and conduct a store therein in OF TRADE.

competition with Justice. Nor is there any The owner's stipulation in the lease that dispute about the fact that Wright, soon afhe would not, during the term, let any adjacent ter this lease was entered into, did erect up a store thereon in opposition to the tenant, a building on the leased lot and conduct was not invalid as against public policy, as be- therein a store in competition with Justice. ing a contract in restraint of trade; the feature After this Justice brought this suit against objected to being merely incidental to a contract Mrs. Vanover to recover damages and for otherwise valid.

various breaches of her contracts made in Appeal from Circuit Court, Pike County.. January and May, including the breach

Action by J. F. Justice against Eliza Van- committed in leasing the lot to Wright. over. From a judgment for plaintiff, defend- Waiving preliminary matters, there was an

a ant appeals. Affirmed.

answer controverting the petition and askKoscoe Vanover, E. J. Picklesimer, and ing, in a counterclaim, damages in the sum Cline & Steele, all of Pikeville, for appellee. of $2,000. On a trial of the issues there was

a verdict and judgment, accordingly, in faCARROLL, J. In January, 1912, J. F. Jus- vor of Justice for $350, and Mrs. Vanover tice, the appellee, entered into a written appeals. contract with Eliza Vanover, the appellant, On the trial of the case the court instructed by which he leased from her for a period of the jury that: three years, with the privilege of extending “Under the contract, of date May 16, 1912, the lease for three years, a vacant lot and the defendant agreed to not permit any person a store building; his purpose being to con- other than plaintiff to put up or engage in busiduct a general merchandise store in the lands during the term of said lease; and if the

ness in opposition to plaintiff on defendant's leased building, and a building that he con- jury should believe and find from the evidence templated putting on the vacant lot. After that the defendant in violation of this provision this it appears that Justice learned that of the contract leased a portion of her said

premises to other persons who engaged in the Mrs. Vanover was about to lease some adja- mercantile business on defendant's premises cent property to parties who intended to con- and in opposition to plaintiff, and carried the duct in it a general store in competition with same line of goods as plaintiff carried, they

should find for plaintiff on this item such a sum him, and in May, 1912, he leased from Mrs. in damages as they may believe from the eviVanover a vacant lot adjoining the lot he had dence will fairly compensate him for the loss leased in January for the purpose of erect- sustained, if anything, by reason of said breach

of the contract." ing 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 propriate exceptions and objections were lease it was stipulated that: “First party, saved to all the evidence tending to show Mrs. Vanover, agrees to not let any other that Justice had suffered any damage by reaperson put up in opposition to second party, son of this breach of the contract, and the inJ. F. Justice.” The purpose of inserting this struction was likewise excepted to upon the clause in the lease was to prevent Mrs. Van- ground that the prohibitive clause was in reover from leasing other adjacent lots that straint of trade and void, and therefore even she owned to persons for the purpose of op- if it were breached there could be no recoverating a store in competition with the store ery by Justice. So that the only question we that Justice intended to conduct in the build- need consider on this appeal is this contenings on the lots leased by him. It will be tion of counsel for Mrs. Vanover. 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

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

203 S.W.-21

short term of years, was induced to, and did, territory adjacent thereto was merely ancillary lease some property from Mrs. Vanover on to the principal contract of sale. And that beher agreement that she would not, during the ing true, the case falls within the general rule

as above announced, and must be upheld. In term of the lease, let any adjacent property so holding, we think the circuit judge was right.” to any other person who might set up a store

To the same effect is Breeding v. Tandy, thereon in opposition to Justice. Now the 148 Ky. 345, 146 S. W. 742; Fields v. Holland question is, Was that agreement on the part & Son, 158 Ky. 544, 165 S. W. 699, L. R. A. of Mrs. Vanover such restraint of trade as to 1915C, 865; Nickell v. Johnson, 162 Ky. 520, make it void as against public policy?

172 S. W. 938. We have had occasion in a number of cases

Applying, now, the law as laid down in lo consider the question of the validity of con- these cases to the facts of the case before us, Lracts in restraint of trade, and statements we find that Mrs. Vanover, as a part of, and of the ruling we have set down in respect to incidental to, a contract that she entered into this question will be helpful in disposing of with Justice for a term of years, agreed not the case.

In Clemons v. Meadows, 123 Ky to rent any of her adjacent property to any 178, 94 S. W. 13, 29 Ky. Law Rep. 619, 6 L. other person to set up a store in competition R. A. (N. S.) 847, 124 Am. St. Rep. 339, Mead- with Justice. Now, under all the cases, if ows, who operated a hotel, agreed with Clem- Mrs. Vanover had obligated herself not to ons, who was conducting a competing hotel in set up in business for a term of years in a a small town, in consideration of a stipulated building adjacent to the property she had sum, to close his hotel for a term of years. leased to Justice, the contract would have Clemons brought suit against Meadows to re- been binding upon her, and we can see no discover damages for a breach of the contract, tinction between a contract like this and a and the court, after recognizing the general contract by which she agreed not to rent her rule that contracts in partial restraint of property to another to set up a store in comtrade would be upheld, said that this con- petition with Justice.

, tract was void as against public policy, upon

It is true that this contract was intended the ground that the sole consideration was to prevent competition in trade, but it was the agreement to pay a sum of money to only a partial restraint of trade, and did not Meadows in consideration of his agreement to bind any person except Mrs. Vanover, and close his hotel. In that case, as will be seen, , only her for a short term of years. It did the agreement to close the hotel was not in- not prevent any other person from entering cidental to, or a part of, any other contract; into competition with Justice, or interfere it was simply a naked agreement for a stipu- with the establishment of stores on property lated consideration not to engage in business. owned by any other person. There can be no In Barrone v. Moseley Bros., 144 Ky. 698, 139 doubt about the validity of so much of the S. W. 869, the court, in upholding a contract contract as related to the leasing of the lot by which Barrone sold to Moseley Bros. a to Justice, or the agreement of Justice to laundry business and agreed to not again en- build a house thereon, and the vice that gage in that business in a specified period, would have been in the stipulation prohibitsaid:

ing Mrs. Vanover from leasing her property "It is, however, a very general rule that all to any other person to conduct a store in opcontracts of this character must be incident to and in support of another contract, or sale, position to Justice, if this stipulation had in which the covenantor has an interest which contained the whole contract between them, is in need of protection. In other words, no conventional restraint of trade will be enforced of and incidental to another valid contract. cillary to the main purpose of a lawful trade, Wherefore the judgment is affirmed. 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

(180 Ky. 587) an unjust use of those fruits by the other party."

AMBERSON v. FOWLER et al. The court then proceeded to refer to the Court of Appeals of Kentucky. May 17, 1918.) Clemons and other cases holding that where OFFICERS Ow87–TITLE TO OFFICE-USURPAa party for a mere money consideration TION-ACTION-PLAINTIFF. agreed to quit business, or not to engage in Since Civ. Code Prac. 88 483-485, confine business, the contract would be void, and fur- the right to bring action for usurpation of a

county office to the person entitled to the ofther said:

fice or the commonwealth, a stranger cannot "But the facts of the case at bar do not bring such action, although no one is entitled bring this contract within the distinction above to the office and the commonwealth's attorney laid down. It is true that the contract, in has refused to do so. words, requires the appellants to abandon a certain line of laundry business; but when the

Appeal from Circuit Court, Union County. contract, as a whole, is read, it is reasonably Petition by James H. Amberson against plain that the appellants sold this business to Earl L. Fowler and others. From judg. the appellees for $1,600, a valuable considera

appeal. tion, and that the agreement to abandon that ment for defendants, petitioners business in the city of Bowling Green and the Affirmed.

Truman Drury, of Morganfield, for appel-county attorney, there was no other person lant. Earl L. Fowler, of Morganfield, Ruby entitled to the office who could bring the Laffoon, of Madisonville, and N. Powell Tay- suit; and, as the commonwealth's attorney lor, of Henderson, for appellees.

refused to proceed in direct violation of the

statute, any citizen had the right to bring MILLER, J. Appellant J. H. Amberson, a the action, and the circuit court had jurisprivate citizen proceeding in his own right diction of this action. This, however, by no and for the use and benefit of the common- means follows. The fact that a public ofwealth, brought this action against the ap- ficer declines to sue under authority expresspellee Earl L. Fowler, charging him with ly conferred upon him does not transfer that having usurped the office of county attorney right or duty to some one, or every one, who of Union county. As a basis for the charge is not an officer.

a 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 com

If 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

v court of Vanderburgh county, Ind., showing v. 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. ted to practice at that bar on September 11, lant's

right to maintain this action was prop

The special demurrer putting in issue appel-, 1916. The circuit court sustained a special

erly sustained. demurrer to the petition, and Amberson ap

Judgment affirmed. peals.

Sections 483, 484, and 485 of the Civil Code of Practice read as follows: "483. If a person usurp an office or franchise,

(180 Ky. 580) the person entitled thereto, or the commonwealth, may prevent the usurpation by an ordi

CARPENTER v. JULIAN et al. nary action.

"484. It shall be the duty of the several com- (Court of Appeals of Kentucky. May 17, 1918.) monwealth attorneys to institute the actions 1. JUDGMENT 123(1) NONRESIDENT DEmentioned in this chapter against usurpers of

FENDANT-REFUNDING BOND. county offices or franchises, if no other person

Civ. Code Prac. $ 410, providing that a rebe entitled thereto, or if the person entitled fail funding bond shall be executed before the rento institute the same during three months after dition of judgment against a defendant conthe usurpation.

“483. For usurpation of other than county of structively served, requires no such bond, where fices or franchises, the action by the common

persons out of the state over 14 years of age wealth shall be instituted and prosecuted by the Code Prac. $ 56.

are personally served under provision of Civ. Attorney General."

SALE OF It would seem that these explicit provi- 2. GUARDIAN AND WARD O92

LAND-BOND BY GUARDIAN. sions of the Code necessarily require an af

Where land of an infant is sold to satisfy firmation of the judgment, since the right to debts of his ancestor, and because of its indiprevent the usurpation of a county office is visibility more land is sold than would have been there confined to the person entitled to the necessary to satisfy such debts, the guardian of office, or to the commonwealth's attorney ; Code Prac. $8 493, 497, as to excess of such a stranger cannot take that duty upon him- purchase price, or such excess shall not be paid self.

by purchaser, but shall remain a lien on land

until infant becomes of age, notwithstanding exAppellant argues however, that since the ception of cases mentioned in section 489, subds. petition alleges that Fowler was elected 1, 2.

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

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