Morrison v. Clarksburg Coal & Coke Co.

MoWiiorter, Judge: Arthur Cowan was the owner of three tracts of land in Harrison County, one containing three hundred and ten acres, another sixteen acres, another sixty acres, aggregating three hundred and eighty-six acres. On the 16th day of February, 1860, he conveyed to Gideon D. Camden, Edgar C. Wilson and Delia M. Allen, executrix of Guy R. C. Allen, deceased, in consideration of one thousand dollars cash “All the one full half of all tho stone coal in and upon the following tracts of land,” describing the three hundred and ten acres and the sixteen acres of land, granting in the same deed to the .said party of the second part the right to enter upon tho said lands to dig, mine and remove the said coal with all necessary rights of way, but providing that before the vendees should proceed to dig, mine and remove the coal they were to pay to the vendor five hundred dollars, for which a lien was retained on the said coal; but the vendor had no right to demand tho said five hundred dollars until the vendees should proceed'to mine and remove the said coal. This deed was not recorded until January 2, 1885. By deed dated the 18th day of January, 1866, the said Arthur Cowan'in consideration of the sum of five hundred dollars to bo paid as thereinafter provided, without referring to the said deed of February 16, 1860, conveyed to Gideon Draper Camden — 333 — “One equal undivided lialf or moiety of the stone coal in and upon tbc tract of land herein particularly described.” Then describing the three tracts constituting the said three hundred and eiglity-six acres, and further granting to the said Camden iirrhe right to enter upon and occupy such parts and parcels of the tracts herein described as may become necessary from time to time for roads and buildings, required for the mining and transferring the coal to the railroad and for the use of the lands so required for road as aforesaid, the said party of the second part is to pay to the party of the first part the sum of five hundred dollars when he proceeds to remove the coal as aforesaid, but not before, for which sum a vendor’s lien is hereby retained upon the property herein granted, and the said Arthur Cowan doth hereby covenant with the said party of the second part that lie will warrant generally the property hereby conveyed.” Which deed was acknowledged by Cowan on the 36th of September, 1877, and a declaration of trust under seal, by G-. D. Camden, dated December 13, 1877, that the said property was held by himself as trustee for Edger C. Wilson, Guy R. C. Allen and himself, and the deed and declaration of trust wore recorded December 13, 1877. On the 31st day of January, 1878, Arthur Cowan, by deed, conveyed to Nathan Goif, Jr., trustee, the three said tracts of land aggregating three hundred and eighty-six acres to secure a debt of three thousand and one dollars to Nathan Goff, the closing paragraph of which deed of trust is as follows: “The said land'herein conveyed is also particularly described in a deed made by said Arthur Cowan to Gideon Draper Camden, on the 18th day of January, 1866, convoying to said Camden certain interest in the stone coal underlying the surface of said land, which said deed is recorded in said above clerk’s office in deed book No. 60, folio 313, to which deed and said recordation thereof special reference is here made for a further description of the land herein conveyed. Except as to the said conveyance to said Camden, said Cowan warrants the property above described and hereby conveyed, generally.” On the 19th day of April, 1879, the said Arthur Cowan executed his last will and testament, the fifth and sixth clauses of which whereby he disposes of the said three hundred and eighty-six acres of land known as “The Homo farm,” are as follows: — 334 — “5th. I give to my said son. James P., in trust for the rise of his two daughters, Mary Bell and Joanna and his son Robert 0., throe-fourths of my home farm near Wilsonburg in said county, but I require him to pay to Nathan Gof£ the residue of a debt I owe Mm which was originally about three thousand and one hundred dollars, and for which ho has a lien on the same farm, and to enable my said son, James P., to pay the Goff debt, I release to him the payments of this note to me for 8.66 dollars,and also give to him the benefit of two notes given to me by my son, John T., but I only release to him his note aforesaid and give him the benefit of his brother John’s two notes in the event he pays the Golf debt. “6th. The remaining fourth of my said home farm I give to my two grandchildren, Michael E. Cowan and Ida Westwood, his sister.” James P. Cowan failing to pay the Golf debt proceedings were had in the circuit court of Harrison County, instituted by Michael E. Cowan, Ida Westwood, &t al., against James P. Cowan, et oil., wherein James II. Morrison became the purchaser of an undivided three-fourths interest of said three hundred and eighty-six acres of land at commissioner’s sale under decree of the court, at the price of five thousand and five hundred dollars; and by deed dated the fth day of December, 1881, N. Golf, Jr., commissioner, conveyed the said three-fourths interest to said James II. Morrison, purchaser. Said Morrison also obtained the title from said Michael E. Cowan and Ida Westwood for the other one-fourth interest in said land. James II. Morrison filed his bill in the circuit court of Harrison County against the Clarksburg Coal and Coke Co., a corporation, X. T. McCann and James P. Cowan, surviving executors of Arthur Cowan, deceased, setting out the various conveyances mentioned and other conveyances of all the said coal in said tract to said X. T. McCann, and from him to the said corporation defendant, alleging that the said five hundred dollars had never been paid to the said Arthur Cowan or to his executors, and that by virtue of the conveyances to him he became the owner and was entitled to the same with interest from the 10th day of July, 1900, when the defendant, the Clarks-burg Coal and Coke Co., began to remove the coal from the premises; that the same was a lien upon the undivided half of — 335 — the coal which was liable to bo sold to satisfy the lien, and that said defendant, McCann was also liable to pay said five hundred dollars as agreed by him in the deeds from the heirs of Edgar C. Wilson and Guy E. C. Allen, and that said five hundred dollars never having been paid was due to plaintiff, and praying for a decree requiring said Coal and Coke Co. to pay the same, and also for a decree against McCann for the same and for the sale of the undivided half of said coal to satisfy the lien. The cause was heard on the 16th day of January, 1901, upon the bill and exhibits and upon the several demurrers of X. Y. McCann and Clarksburg Coal and Coke Co. rejoinders therein by the plaintiff, when the court sustained the demurrers and plaintiff not desiring to amend his bill'the same was dismissed and a decree for costs given the defendants; from which decree the plaintiff appealed and assigned the following errors: “1. The record clearly shows, that when Arthur Cowan conveyed the land in trust and by his will, that he conveyed the whole of the three hundred and eighty-six acres, which after-wards became vested in the petitioner, without any exception or reservation, including the coal, the five hundred dollars, for which a lien was retained on the one-half of the coal, to be paid for the use of the land, and that petitioner was entitled to the said five hundred dollars and the court erred in not so holding.” “2. The record further shows, that the' five hundred dollars to be paid by Camden was for the use of the land for roads, etc., and was a covenant running with the land. And when the entire land, including the coal and everything else without exception or reservation, was conveyed by Cowan and after-wards conveyed to petitioner, every interest belonging to Cowan, including the five hundred dollars, became vested in petitioner; and the court erred in not so holding.” “3. The court erred in sustaining' the demurrer to the bill.” “4. The court erred in dismissing the bill.” It is insisted by appellant that the grantor, Arthur Cowan, in his deed of trust to Nathan Goff, and by his will executed afterwards, intended to, and did convey and devise all his right, title and interest to. the said home farm of three hundred and eighty-six acres, including his right to the five hundred dollars to be paid when the purchaser of the one undivided one336 half interest in the coal should begin to mine and remove the «ame. Section 5, chapter 71, Code, provides among other things, “Any interest in, or claim to real estate may be disposed of by deed of will.” And section 8 of the same chapter provides that “Where any real estate is conveyed, devised, or granted to any person without any words of limitation, such devise, conveyance, or grant shall be construed to pass the fee-simple or the whole estate or interest which the testator or grantor had power to dispose of in such real estate, unless a contrary intention shall appear by the will, conveyance, or grant.” Seetionl of' chapter 72, gives the general form of a deed for conveying property; and section two of the same chapter provides that “Every such deed, conveying lands, shall, unless an exception be made therein, be construed to include all the estate, right, title and interest whatever, both at law and in equity, of the grantor, in or to such lands.” In his conveyance to Gideon Draper Camden of the 18th of January, 1866, of the one undivided half of the coal in said three hundred and eighty-six acres of land Arthur Cowan conveyed the said coal and also the right to the grantee “To enter upon 'and occupy such parts or parcels of the tracts herein described as may become necessary from time tó time, for road and buildings required in the mining and transferring the coal to the railroad and for the use of the lands.so required for road as aforesaid, the said party of the second part is to pay to the party of the first part the sum of five hundred dollars ($500.00) when he proceeds to remove the coal as aforesaid, but not before, for which sum a vendor’s lien is hereby retained upon the property herein granted, and the said Arthur Cowan doth hereby covenant with the said party of the second part that he will warrant generally the property hereby conveyed.” Thus it appears that the lien reserved attaches as well to the casement in the land for road and buildings as to the coal conveyed. It is insisted by counsel for appellees that the lien of five hundred dollars reserved to said Cowan is on an entirely distinct portion of land from that owned and claimed by appellant, and then illustrate their position as follows: “Suppose that Cowan, being the owner of ten acres of land, had sold to Camden, by title bond as in the latter case, a two acre lot, or had conveyed to him the legal title thereto and retained a vendor’s lien, as in — 337 — tbe former case, and bad thereafter sold and conveyed to Morrison the remaining eight acres, by what possible right could Morrison have claimed the right to collect from Camden the unpaid purchase money for the two acres ? Such is the contention of the appellant as viewed by the appellees.” This is not an apt illustration, the supposed conveyance is of the whole of two acres of a tract of ten acres severed completely, and as a whole making it an- independent tract with no interest remaining by easement or otherwise to connect it with the remaining eight acres of the tract, and the supposed sale of the eight acres to Morrison is wholly independent' of the two acres, and of course, Morrison could under no circumstances of such supposed conveyance, have had any interest in the lien reserved on the two acres. The conveyance from Cowan to Goff grants the whole tract of three hundred and eighty-six acres without reservation or exception as to the coal or any part of it, or any part of the land or interest in the land. True it refers to the deed for the coal to Camden and makes exception in his warranty, of said conveyance to Camden; but it is not excepted nor reserved in the grant. Cowan in his devise of said land afterwards on the 18th of April, 1879, makes no reservation or exception. Neither the conveyance to Goff nor devise by will can in any way affect the coal interest of Camden, but the same being without limitation shows the purpose of the grantor and testator to be to dispose of all his right, title, interest and estate in or to said property. In the fourth clause of his will the testator says: “I have heretofore advanced to my sons, Eobert E. and John T. their full shares of my estate,” and after requesting that his executors purchase and present to his son, Epbert E., a suitable gold headed cane with appropriate inscription, he says: “After complying with the above request I desire that the residue of my estate shall be divided into four equal parts and to be given to the children of my four sons, Eobert E., Michael M., (who is now dead), James P. and John T.” The children of the four sons are thus made the sole residuary legatees. Taking the whole will together there can be no question that the testator intended the three children named, of James P., who were given three-fourths of the said home farm, held in trust for them by James P., their father, and testator’s other grandchildren, Michael E. Cowan and Ida Westwood, his sister, the remaining — 338 — one-fourth; and that they should have the benefit of the lien reserved for the five hundred dollars. The purpose of the same was to make good the damage to the land devised, by the use of the same for road and buildings, and by the mining and removal of the coal. In the devise as well as in the conveyance to Gofii there was no exception or reservation, either as to the coal or as to the lien retained in the deed to Camden. In Turk v. Skiles, 45 W. Va. 82, (¡áyl. pt. 1), it is held: “Tire holder of a vendor’s lien joins with the owner of the land charged with such lien in a deed of trust granting the land by the words, ‘grant, bargain, sell’ and confirm/ to a trustee in trust to secure a debt to a third party, and to pay the balance of proceeds of sale under it to the owner of the land owing the vendor’s lien. Such deed of trust will discharge the vendor’s lion as to both the debt secured by the' deed of trust and the owner of the land. Sush deed of trust is as to the owner of the land a grant, and as to the holder of the lien a confirmation.” Also in Building and Loan Association v. Page, 46 W. Va. 302, (Syl. pt. 1), it is held: “A general warranty deed, Avithout limitation, reservation, or exception conveys all the grantor’s right, title and interest, both legal and equitable, in and to the property embraced therein, including the right of retention of the title to secure the unpaid purchase money due and owing from a prior recorded title-bond purchaser of an undivided interest in such property, and operates as a transfer of such unpaid purchase money to the grantee; and after due recordation of such deed, and notice thereof, such title-bond purchaser cannot pay such unpaid purchase money to his vendor, the grantor in such absolute deed, except at his own risk and peril, but must pay same to the grantee before he can demand conveyance of the retained legal title.” Counsel for appellees contend that the cases just cited do not apply to case at bar, because the conveyance by Cowan to Goff and his devise in his will are of an entirely distinct portion of the land and no part of the lien-subject. The conveyance to Goff as well as the devise covers and includes the whole property without exception, reservation or limitation, and is effective as to the surface of the land to be used and damaged by the mining and removal of the coal, and as to any interest the grantor might have therein of any character whatever. It is — 339 — true the conveyance and devise are inoperative as to the interest in the coal, but it.shows that the grantor intended to dispose of every interest he had in the property, legal or equitable. “Any deed that transfers the title passes to the grantee the benefit of a covenant that runs with the land, such is the effect of a quit claim deed, or a deed or release without covenants.” 1 Jones on Real Property, section 933 and section 935. “Covenants that run with the mortgage land inure to the covenantees mortgagee and his grantees, in proportion to their shares and interest. They inure to the benefit of a purchaser at the foreclosure sale.” Appellant in his brief has well said: “This is a vendor’s lien of a peculiar nature, it being in the nature of a covenant running with the land.” It appears that the purchase money of the coal being one thousand dollars was paid in hand as set forth in deed from Arthur Cowan to Camden, d al., dated February 16, 1860, which deed was lost or mislaid, and not recorded until 1885; the loss of which deed was the occasion of the deed of the 18th of January, 1866, being made; and the lien of five hundred dollars retained was not for the coal conveyed but for the use of the land and damages that might be done to it in the removal of the coal and for road, buildings, etc., and was not to be paid, until the purchaser of the coal should begin to remove the same; and as the five hundred dollars was intended to make good the damages to the land and for the use of the same in removing 1he coal it becomes very clear that Cowan intended that his devisees should have the benefit of the five hundred dollars, and his devise as well as the conveyance to Goff being without any words of limitation, must, under scetion 8, chapter 71, be construed to pass the whole estate and interest which Cowan had power to dispose of in such property, no contrary intention appearing either by the grant or the will of said Cowan. The demurrer to plaintiff’s bill should have been overruled. The decree is therefore reversed and the cause remanded to the circuit court of Harrison County for further proceedings to be had therein. Reversed.