Cummings v. United Fuel Gas Co.

Maxwell, Judge: This certified case of Sherman G. Cummings, Alma Campbell, Webster Cummings, Henry F. Cummings and Mabel Cummings Murphy against the United Fuel Gas Company involves the question of the sufficiency of an amended declaration. The trial court sustained the defendant’s demurrer thereto but did not dismiss the action. On the first of December, 1909, Linnie Cummings, mother and legal guardian of the plaintiffs and their two brothers, now deceased, all of whom were then infants, executed to the defendant, under authority of court, a lease for oil and gas purposes on a tract of fifty-seven and nine-tenths acres of land in Roane County. The lease provided for a one-eighth oil royalty to be delivered in tank or pipe line to the credit of the lessor; also for $300.00 per year for each gas well, and delay .rental of $58.00 per year payable quarterly, both the *601 gas royalty and the delay rental to be paid to the guardian. The lease contains this covenant: “Lessee agrees * * * to protect the lines from drainage and to develop the said territory as fully as developments on surrounding land and on this land shall show to be advisable.” The action is based on that covenant. It is alleged that soon after the acquisition of the lease the lessee entered upon the property and drilled one well which is still producing both oil and gas. The lease remains in effect and in the ownership of the defendant. Upon proferí made and oyer claimed, the lease was produced and was considered by the court on the demurrer. Was this procedure proper in the absence of averment that the instrument was under seal (a question not raised in the trial court or here, but of which we take note) ? “Proferí can not be made or oyer demanded, unless the declaration avers a sealed instrument.” Riley v. Yost, 58 W. Va. 213, 52 S. E. 40. However, since such was declared to be the rule of the common law, applicable in this jurisdiction, there has been a very material change in our law in this, that by act of the Legislature of 1921, chapter 71, section 2, Code 1931, 36-3-1, the affixing of a seal to a deed or other conveyance of an estate of inheritance or freehold is no longer requisite to its full validity and efficacy. This necessitates a relaxing of the above rule in respect of deeds and like instruments, inasmuch as it would be an anomalous situation if profert could not be made or oyer claimed of a deed or lease in suit because, it not being under seal, averment could not be made in the declaration that it was a sealed instrument. We think that the procedure employed in this case was proper. At the time of filing the amended declaration, June 13, 1934, the plaintiffs had attained the following ages, respectively: Alma Campbell 42, Sherman G. Cummings 36, Webster Cummings 31, Mabel Cummings Murphy 27, Henry F. Cummings 26. Basing their action on alleged failure of the defendant to protect the land from' oil and gas drainage through other wells on adjoining lands, and for failure sufficiently to develop the property, the plaintiffs claim $100,-000.00 damages for the ten-year period next preceding the filing of the amended declaration. *602 In support of its demurrer to the said declaration, the defendant urges that the covenant sued on was not made with the plaintiffs, or any of them, but was made with Linnie Cummings, guardian, and, therefore, the plaintiffs are not entitled to maintain this action in their names to recover damages for the alleged breach of said covenant. The covenant for protection of lines and development of the property is a covenant running with the land. It was not a mere promise to the guardian, but it was a covenant for the benefit of the owners of the land, and would pass with a grant of the land. Harbert v. Gas Co., 76 W. Va. 207, 84 S. E. 770, L. R. A. 1915E, 570. Consult: Hurxthal v. Boom Co., 53 W. Va. 87, 44 S. E. 520, 97 Am. St. Rep. 954; 7 Ruling Case Law, page 1106; Annotations, Oil Lease, 79 American Law Reports, page 500. The covenant was for the protection of the infants, owners of the land, and not for the guardian. “The title to the property of the ward does not pass to the guardian. He has its care and management only. His position is that of an agent or attorney, not that of an assignee or trustee.” Lombard v. Morse, 155 Mass. 136, 29 N. E. 205, 14 L. R. A. 273; Campbell v. Fichter, 168 Ind. 645, 81 N. E. 661, 11 Ann. Cas. 1089. Of like import: Woerner’s American Law of Guardianship, page 173; 28 Corpus Juris, page 1128; 12 Ruling Case Law, page 1123. Although by the terms of the lease the lessee was specifically required to pay gas well royalty and delay rental to the guardian, the covenant with respect to protection of lines and development of the property is in more general terms. The undertaking is abstractly stated. In terms, the “lessee agrees” to do the thing undertaken, but the guardian is not mentioned in that connection. Therefore, this not being a direct promise to or covenant with the guardian, but being for the benefit of the infants, it will be treated as made directly with them. An action for the breach of said covenant, within the period of the infancy of the owners of the property, could have been prosecuted by them by nest friend. Infants may sue. by next friend on a promise made to them. Lawson v. Kirchner, 50 W. Va. 344, 347, 40 S. E. 344. On the other hand, an action on behalf of the infants for gas well royalty or delay *603 rental would have had to be by the guardian because the promise was to the guardian. The case of Truss v. Old, (Va.) 6 Rand. 556, 18 Am. Dec. 748, relied on by the defendant, we think is not in point. There a guardian, without court authority, sold certain timber trees from the ward’s land and received from the purchaser thereof the agreed price. Upon reaching majority, the ward sued the purchaser of the trees to recover the value of the property. In reversing a judgment for the plaintiff, the appellate court said: “If the Defendant in this ease had entered and cut and carried away the trees without the license of the Guardian, the Ward could not have maintained the action of Trespass. That would have belonged to the Guardian, who must have accounted to the Ward for the damages recovered. But, being done by the permission of the person legally in possession, there was no trespass whatever. * * * The wrong, if any, done to the Plaintiff, must be compensated by the Guardian.” It will be noted that that ease deals with trespass to an infant’s real estate and in no wise pertains to a written covenant for the protection of such real estate. The contrast is between trespass quare clausum fregit and breach of covenant. The case of Ross v. Gill, (Va.) 1 Wash. 87, is forcefully illustrative of the principle here involved. A female infant’s guardian leased the ward’s real estate to a third person at a stated annual rent until such time as the ward should marry or attain the age of twenty-one years, whichever should first happen. The lessee’s written covenant to pay rent as set forth in the opinion did not specify whether payment should be made to the guardian or the ward. The ward married before attaining majority, and she and her husband united in an action against the lessee for unpaid rent. The court, however, treated the covenant as a reservation of rent to the infant as alleged in the declaration, and held that the action was properly brought, stating: “The inheritance being-in the ward, there is a privity between her and the lessee, and therefore there is no douht of her right to maintain an action of debt, to recover the arrears of rent.” The court then contrasts such situation with one wherein the guardian *604 by lease in writing reserves rent to himself “to cover advances which he may make for the use of the ward,” and says that in such case the action must be brought in the name of the guardian, for, in such circumstances, if the ward would sue there would be a variance between the allegations and the proof. The law is settled that co-tenants may unite as plaintiffs in an action affecting their joint property rights. 62 Corpus Juris, page 567; Talley v. Drumheller, 135 Va. 186, 115 S. E. 517; 33 Corpus Juris, page 915; Lefever v. Thomas, 69 W. Va. 88, 70 S. E. 1095; Hunt v. Mounts, 101 W. Va. 205, 133 S. E. 323; 7 Ruling Case Law, page 905; 24 Eney. of Proc., page 941; 15 Corpus Juris, page 1300; 20 Ruling Case Law, page 673; Blondeau v. Sheridan, 81 Mo. 545; 67 Corpus Juris, page 633. It will be observed from the stated ages of the plaintiffs, respectively, that when the amended declaration was filed only the three elder ones had been of legal age for the entire ten years for which damages are claimed. The two younger ones had been of legal age only five and six years, respectively. The ten-year period therefore extends back into the infancy of the two younger plaintiffs. Have they the right to sue for alleged damages arising partly before they attained majority and partly since? We answer in the affirmative, because, as stated, we are of opinion that within the infancy period they could have sued by next friend, and, not having sued by next friend within that period they have the right now, as adults, to sue for damages which they claim they suffered before they reach their majority because of breach of the covenant involved; and, there is no reason why they should not join that claim with their claim for damages suffered since they attained majority. We are therefore of opinion that the amended declaration is sufficient as a matter of law, and that the demurrer should have been overruled. The action of the trial court is reversed and the case remanded. Reversed and remanded.