Newton v. Kemper

66 S.E. 102, 66 W. Va. 130, 1909 W. Va. LEXIS 133

• Court: West Virginia Supreme Court
• Decided: November 2, 1909
• Status: Published

Opinions

Miller, President:

The decree appealed from dissolved the preliminary injunction stopping drilling for oil and gas by defendants under a lease from plaintiff, and dismissed her bill.

The plaintiff sought cancellation and removal of said lease as a cloud, on her alleged title; charging the lease to be void for want of consideration, want of mutuality in the covenants, and for uncertainty in the description of the land; and because by its terms the lease, if otherwise valid, had become forfeited for failure of the lessee to drill a well on the premises as soon as the well, then being drilled on another tract, should be completed.

The lease recites a consideration of one dollar, acknowledgment of payment thereof, and that it was upon the further consideration of the covenants and agreements of the lessee therein. ■ The lease appearing on its face to be valid and not void for-want of mutuality as alleged, and plaintiff failing in her proof to show the lease void for uncertainty in or want of description of the property leased, the bill stood alone as a bill to enforce an alleged technical forfeiture of the lease for failure to complete a well in sixty days, or to drill a well on the land as soon as the well should be completed on the other tract.

It is unnecessary, and, in view of the disposition we shall make of the case, it would perhaps be improper to express any opinion on the questions of the alleged forfeiture of the lease, or in respect to the rights of the parties in relation thereto.

It is familiar law, many times affirmed by this Court, that, .while a court of equity will, in a proper case, sometimes give relief against, it will never lend its aid in the enforcement of, a forfeiture. Headley v. Hoopengarner. 60 W. Va. 626, 646; citing Craig v. Hukill, 37 W. Va. 523, and the text writers 033 Equity Jurisprudence.

On the hearing on bill, answer of defendant Kemper, and of H. A. and Annie L. Fry, the latter of whom intervened by petition and were made defendants thereto, the bill was dismissed. Besides asserting his rights and denying the invalidity or forfeiture of plaintiff’s lease to him, Kemper denied plaintiff’s title and asserted right to the oil and gas, and to continue drilling therefor under a prior lease from said Fry and wife; and both he and they in their answers denied that the reservation of “all the coal and other minerals underlying the surface of said land with the right to mine and carj^r the same away” in the deed from plaintiff’s father to their predecessor in title, relied on by her, covered the oil and gas, and that plaintiff was without right to said oil or gas.

In view of the matter thus disclosed by these answers, the question is ' presented whether the court below, if requested, should have permitted plaintiff to amend and convert her bill into a bill to settle the conflicting claims of the Frys, and of Kemper under his lease from them, and to remove said lease as a cloud upon her title ? and if not, whether the court erred in dismissing plaintiff’s bill, without saving to the parties any rights they may have to prosecute or defend any other suits in respect 'to the matters complained of or asserted in bill or answers? The object of the bill was to stop defendant from drilling under plaintiff’s lease, and to remove it as a cloud. Failing in that purpose, 'to have permitted her to amend and convert the bill into one against Kemper and the Frys to remove the Fry lease to Kem-per as a cloud on her title, would have been to wholly change the object and the relief sought by the original bill, a practice not permitted by our decisions, and the rules of equity practice. Piercy v. Beckett, 15 W. Va. 444; Burlew v. Quarrier, 16 W. Va. 108; Christian v. Vance, 41 W. Va. 754; Edgell v. Smith, 50 W. Va. 349, 353.

While great liberality is permitted in amendments, so long as the identity of the cause of action is preserved, we do not understand that any authority goes so far as to hold that the whole object of the bill may be changed thereby, and a new cause of action, wholly disconnected with the original, substituted for it. 1 Hogg’s Eq. Proc., sections 326, 327; 1 Barton Ch. Pr. 346-7; 4 Minor’s Inst. 1376. The case which has perhaps gone farthest in this direction is Belton v. Apperson, 26 Grat. 207, a case, however, not binding on us. But even in that case the identity of the cause of action was maintained; though the plaintiff was permitted to amend so as to obtain different relief, but with respect to the same cause of action. We conclude, therefore, that an amendment of the original bill, as suggested, could not properly have been permitted.

But we are of opinion that the court erred in dismissing the bill without inserting in the decree a clause saving to the plaintiff and defendants the right to prosecute or defend any other proper suit or suits at law or in equity in respect to the matters complained of in the bill or answers, or showing that the cause had not been decided on its merits, as such a decree, without such a clause, would be a bar to any subsequent suit or suits predicated on the same facts. Frye v. Miley, 54 W. Va. 324; Teter v. Teter, 65 W. Va 167 (63 S. E. 967, 968). The decree, appealed from will therefore be amended by inserting such saving clause, and, as amended, affirmed.

As, however, the appellant superinduced said error, and was in fault in not.asking the court, at the time of the decree, to dismiss the bill without prejudice, following the practice in Frye v. Miley, supra, and the cases cited therein, the modification and affirmance of the decree must be without costs to appellant in this Court, but costs will be adjudged to appellees here and in the court below.