Waits v. Bailey

Opinion by Mb. Justice McCollum, The plaintiff claims title to the half acre of land .described in the writ, and the defendants claim that lfis interest in it is limited to “ the fee simple in all the coal and other minerals contained therein.” The half acre is a part of the seventy-five acres in the possession of Joseph Simcox in 1841, and of which he died seized in 1869. It seems that in 1854 Simcox, on the request of the school board, consented to the use of the half acre for school purposes. In pursuance of the consent thus secured a building was erected in which a school was maintained until 1878, when the location of the school was changed and the building was disposed of at public sale. The right of [569] the school district to the possession of the lot for school purposes was terminated by the sale, and all that the purchaser acquired by it was the right to the building on his removal of it from the half acre within a reasonable time. As the school district made no claim to the land, and expressly restricted the sale to the building upon it, there is no ground for assuming that the purchaser or his successors acquired by the sale any title to or interest in the lot. In this connection we may add that the undisputed evidence shows that the school district never claimed title to the land, or a right to occupy it for other than school purposes. It is not shown by the defendants that they have any title to or lawful interest in the land in question. They have no deed or deeds from parties having a title to or interest in it, and they have no valid warrant or claim on which to base their possession of it. The right of the parties under whom they claim is not the right which Joseph Simcox conceded to the school district, but the right acquired by the purchaser of the school building at a public sale of it. As we have already seen the right of the school district was terminated by its abandonment of the lot and its sale of the building upon it, and the right of the purchaser was limited to the building, and enforceable only by a prompt removal of it from the land on which it was erected. On the trial of the case in the court below, the defendants disclaimed title to all the land described in the writ, except the surface, the gas and petroleum. As already stated, they have not shown any warrant for their possession of the land or any right to any of the minerals underlying it. Their sole defense to the plaintiff’s claim is that the surface of the lot, and the gas and petroleum beneath it, did not pass to the purchaser at the sale on the Irwin mortgage. The defense is therefore based on the construction of said mortgage which they allege does not include matters excepted in their disclaimer. It will readily be seen that their construction of the mortgage leaves to the mortgagors the right to the surface of the half acre lot, and the right to the gas and petroleum oil which may be obtained therefrom, while the mortgagors have made no claim to either, and never intimated to any one that they had any right in the lot. after the sale upon the mortgage. That the mortgagors, prior to the execution of the mortgage, had a valid title [570] to the lot, subject only to the privilege conceded by Joseph Simcox to the school district, is a fact which cannot be denied, and that they intended by the mortgage to pledge all their right- and interest in the property as security for the sum of $10,600,. which they owed to McCalmont, is clearly shown hy the circumstances referred to in the preceding sentence. The mortgagors conveyed to McCalmont as security aforesaid all their right, title, interest and claim .... of, in, to or out of the-seventy-five acres which the heirs of Joseph Simcox conveyed to Mason and Holmes, and the latter conveyed to Irwin, who-with Angelí joined in the execution of the mortgage to McCalmont. It will be observed that the half acre lot was expressly reserved by Irwin in his deed to Robinson. Is it a reasonable construction of the parenthetical clause that the mortgagors-reserved to themselves the surface of the half acre and the gas and petroleum oil beneath it, while mortgaging the coal and other minerals underlying it as security for the debt they owed toMcCalmont? It seems to us that the defendants’ construction of the clause in question is directly opposed to the plain intention of the mortgagors and to the general terms of that part of the mortgage which includes it. We conclude therefore that the facts and circumstances we have referred to are sufficient to defeat the defendants’ contention and to entitle the plaintiff to a judgment in accordance with his claim. We may add also-that, independent of the facts and circumstances to which we have referred, the conclusion arrived at by the learned judge of the court below is sufficiently sustained by the reasons given and the cases cited in his opinion discharging the rule for new trial. Judgment affirmed.