Adverse possession-mineral

rights.

A. 456, 239 Fed. 626. We are here concerned only with those rights (coal, oil, and gas) in the lands on the west side of the fork (aside from the Carter tract), and in the minerals other than coal in the Carter tract. The assertion of title by adverse possession to the minerals in lands other than the Carter tract is but feebly made, if at all. We think it clear that such right is not established. The ownership of the minerals having been severed from the ownership of the surface, the possession of the latter did not necessarily carry with it possession of the minerals. The statute thus did not begin to run against plaintiff's title to the minerals until adverse possession thereof by defendants (Ray v. Sweeney, 14 Bush, 1, 29 Am. Rep. 388); and the bar would not be complete unless the adverse possession was continued for the full statutory period (Wickliffe v. Ensor, 9 B. Mon. 253; Pond Creek Coal Co. v. Hatfield, supra). The Sebastians parted with the Carter tract in 1875, only ten years after plaintiffs' title accrued. As to the remainder of the Sebastian tract, it is not established, if indeed it is claimed, that there was ever any mining of coal thereon for domestic purposes. There was no commercial mining of coal on any part of the tract before 1901, and no oil mining before 1912; although Sebastian appears to have given, in 1889, a ten year oil lease, we are cited to no evidence of operation thereunder, and this suit was begun in 1913. We content ourselves with saying that we find no persuasive evidence of open, notorious, continuous, and hostile possession, for the statutory period, of plaintiff's mineral rights outside of the Carter tract.

As to the latter tract the situation is not the same. There was more or less mining for coal thereon, both before and after 1875, not only for domestic purposes, but to some extent for purposes of sale, and leases for coal mining were given as early

as 1888 and some prospecting done thereunder. The district court has found such adverse possession of coal in place as to bar plaintiff's title thereto, and his conclusion is not appealed from. We think the record such as fairly to require us to accept it as correct, apart from the effect of plaintiff's failure to appeal. peal. There is, however, no proof of actual adverse possession, for the

gas.

statutory period, of Same-adverse the oil and gas. In- claim to coaldeed, it is asserted effect on oil and in defendants' brief. that, "until about 1906, the only mineral that was known or supposed to exist upon this land was the coal;" appellant's contention is that, as Carter and his predecessors in title were in possession of the land under color of title, claiming it and all interests therein, general and adverse possession, for the statutory period, of a mineral known to exist, viz., the coal, cut off the real owner's title to all other mineral interests, although known to exist. But this contention, we think, loses sight of the fact that adverse possession must, in order to devest title, be so open and notorious as to afford to the owner of the right affected actual or constructive notice of such adverse claim. Were the respective minerals held by different owners, the title of the oil and gas owner thereto surely would not be cut off by an adverse possession of the coal interests; and it can, to our minds, make no difference in principle that the rights to the various minerals are held by one person and under one title, for an assertion of a claimed right to mine coal by no means necessarily carried with it an assertion of right to bore for oil and gas, especially in view of the radically different means employed in mining coal and in boring for oil and gas. The method employed in recovering coal is not an open assertion of a right to bore for oil or gas. Interests in these different minerals are not so generally held together as to justify

a presumption of that nature. This record is replete with claims of interests in coal and of interests in oil and gas, wholly separate and distinct from each other.

As to laches.-In suits in equity in the Federal courts relief is not barred by lapse of time, except as it amounts to laches or works an estoppel; and while, for the sake of uniformity, the Federal courts accept state Statutes of Limitation whenever by so doing they are not required to abrogate their own principles, the ultimate question is whether, under all the circumstances of the particular case, the plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did. The defense being an equitable one, the lapse of time and the relations of the defendants to the rights must be such that it would be inequitable to permit plaintiffs to assert their rights. Estep v. Kentland Coal & Coke Co. (C. C. A. 6th C.) 152 C. C. A. 451, 239 Fed. 617; Pond Creek Coal Co. v. Hatfield, supra, where the subject of laches was considered and discussed.

We agree with the conclusion of the district judge that the defense of laches has not been established. The delay has been great, but in view of the well-known fact that there was, until within comparatively few years, no general or substantial development of mineral lands situated as were these in question, that commercial mining of coal was not begun there before 1901, nor boring for oil and gas before 1912, that plaintiffs did not live in the neighborhood, and

Limitation of actions-effect of laches.

that their testimony (presumably

believed by the district judge, who heard it) was that they had no knowledge of such development until about a year before this suit was begun, we cannot say that they are chargeable with such want of diligence in failing to earlier institute proceedings as to equitably deprive them of relief. The fact that they paid no taxes on their mineral rights, in the absence of a policy of separate assessment and taxation, is not, alone, enough to bar them.

5. The assignment addressed to the holding that the alleged adjudication of defendants' title by the decree of the Kentucky state court was binding on but one of the plaintiffs is not presented or argued in appellants' brief. It is enough to say that, regardless of any question of waiver, reference to the record, including the opinion of the district judge, suggests no error in this respect. The same considerations apply to the defense of champerty asserted below.

It results from these views that the decree of the District Court was right, and should be affirmed so far as it adjudged appellants A. W. Sewell and Hattie F. Sewell to be the owners of two thirds of the one-half interest held by Harriet Sewell in the minerals which are the subject of this appeal, but that the decree is erroneous, and should be reversed, so far as it extended such adjudication of ownership to the one-half interest originally held by John W. Sewell.

The record is accordingly remanded to the District Court, with directions to enter a decree as modified by this opinion. The costs of this court will be divided.

ficial, it cannot, as such, take or hold the legal title to real estate1

1 See, in addition to the cases elsewhere cited throughout this note: Stambaugh v. Smith (1873) 23 Ohio

And, while all are agreed that a deed naming a partnership as grantee is effective to give the firm an equitable title, some courts have held that the legal title does not pass at all,3 St. 584, 15 Mor. Min. Rep. 82; Riddle v. Whitehill (1890) 135 U. S. 621, 34 L. ed. 282, 10 Sup. Ct. Rep. 924; Powers v. Robinson (1890) 90 Ala. 225, 8 So. 10; Shirran v. Dallas (1913) 21 Cal. App. 405, 132 Pac. 454; Adams v. Church (1902) 42 Or. 270, 59 L.R.A. 782, 95 Am. St. Rep. 740. 70 Pac. 1037; Trexler v. Africa (1910) 42 Pa. Super. Ct. 542.

A partnership is not a person, either natural or artificial, and it cannot, at law, be the grantee in a deed or hold real estate. Legal title must vest in some person; but, if the title be made to all the partners by name, they hold the legal title as tenants in common. Woodward v. McAdam (1894) 101 Cal. 438, 35 Pac. 1016.

In Shields v. Shields (1881) 1 Chester Co. Rep. (Pa.) 430, the court, in holding that judgments against the firm took precedence over those against the individual partners as against lands purchased in the name of a firm with partnership assets, said that "the title to the real estate in question was in the firm. The deeds identify it as property belonging to the partnership." The decision, however, is in no way at variance with the general rule.

2 See, in addition to the other cases elsewhere cited throughout this note, Dunlap v. Green (1894) 8 C. C. A. 600, 23 U. S. App. 154, 60 Fed. 242; Grabbs v. Farmers' Mut. F. Ins. Asso. (1899) 125 N. C. 389, 34 S. E. 503; Daniels v. Roanoke R. & Lumber Co. (1912) 158 N. C. 418, 74 S. E. 331; Hunter v. Martin (1845) 2 Rich. L. (S. C.) 541; Stith v. Moore (1906) 42 Tex. Civ. App. 528, 95 S. W. 587.

3 Silverman v. Kristufek (1896) 162 Ill. 222, 44 N. E. 430; Tidd v. Rines (1879) 26 Minn. 201, 2 N. W. 497; Frost v. Wolf (1890) 77 Tex. 455, 19 Am. St. Rep. 761, 14 S. W. 440; Harris v. Bryson (1904) 34 Tex. Civ. App. 532, 80 S. W. 105; and see Sutton v. Kelliher (1902) 115 Iowa, 632, 89 N. W. 26, in which the question was raised, but not decided.

In Gille v. Hunt (1886) 35 Minn. 357, 29 N. W. 2, it was said: "There are some authorities which seem to hold that such a conveyance would be

while others treat the partners whose surnames are embodied in the firm name as the legal grantees, taking as tenants in common, subject to the equities of the partnership; while

good to the persons so designated, and that it may be proved by parol who they are; but we think these cases go a great way towards holding that a conveyance of real estate may rest partly in parol; and when we consider the indefinite confusion in titles to real estate-in which there ought to be great definiteness and certaintysuch a rule might let in, we do not hesitate to decide that the proposition that such a designation is too indefinite and uncertain rests in better reason and authority."

Riddle v. Whitehill (1890) 135 U. S. 621, 34 L. ed. 282, 10 Sup. Ct. Rep. 924;. Anderson v. Tompkins (1820) 1 Brock. 456, Fed. Cas. No. 365; Schlichter Jute Cordage Co. v. Mulqueen (1906) 142 Fed. 583; Lindsay v. Hoke (1852) 21 Ala. 542 (obiter); Wood v. Montgomery (1877) 60 Ala. 500; Slaughter v. Doe (1880) 67 Ala. 494; Espy v. Comer (1884) 76 Ala. 501; Brunson v. Morgan (1884) 76 Ala. 593; Southern Cotton Oil Co. v. Henshaw (1889) 89 Ala. 448, 7 So. 760; Powers v. Robinson (1890) 90 Ala. 225, 8 So. 10; Blanchard v. Floyd (1890) 93 Ala. 53, 9 So. 418; Whisenant v. Hybart (1809) 160 Ala. 578, 49 So. 760; Gossett v. Kent (1858) 19 Ark. 602; Percifull v. Platt (1880) 36 Ark. 456; Spaulding Mfg. Co. v. Godbold (1909) 92 Ark. 63, 29 L.R.A. (N.S.) 282, 135 Am. St. Rep. 168, 121 S. W. 1063, 19 Ann. Cas. 947; Winter v. Stock (1866) 29 Cal. 407, 89 Am. Dec. 57; McCauley v. Fulton (1872) 44 Cal. 355; Ketchum v. Barber (1886) 2 Cal. Unrep. 698, 12 Pac. 251; Shirran v. Dallas (1913) 21 Cal. App. 405, 132 Pac. 454; Jackson v. Stanford (1855) 19 Ga. 14; McRae v. Stillwell (1900) 111 Ga. 65, 55 L.R.A. 513, 36 S. E. 604; Taylor v. McLaughlin (1904) 120 Ga. 703, 48 S. E. 203; Hartnett v. Stillwell (1904) 121 Ga. 386, 49 S. E. 276; Anderson v. Goodwin (1906) 125 Ga. 663, 54 S. E. 679; Close v. O'Brien & Co. (1907) 135 Iowa, 305, 112 N. W. 800; Western Securities Co. v. Atlee (1915) 168 Iowa, 650, 151 N. W. 56; McMurry v. Fletcher (1880) 24 Kan. 574; Taylor v. Danley (1911) 83 Kan. 646, 112 Pac. 595, 21 Ann. Cas. 1241; Galbraith v. Gedge (1855) 16 B. Mon.

still others hold that a conveyance to a partnership in the firm name vests (Ky.) 630; Carter v. Flexner (1891) 92 Ky. 400, 17 S. W. 851; Beaman v. Whitney (1841) 20 Me. 413; Gille v. Hunt (1886) 35 Minn. 357, 29 N. W. 2; A. J. Dwyer Pine Land Co. v. Whiteman (1904) 92 Minn. 55, 99 N. W. 362; Arthur v. Weston (1856) 22 Mo. 378; Riffel v. Ozark Land & Lumber Co. (1899) 81 Mo. App. 177; Adams v. Church (1902) 42 Or. 270,,59 L.R.A. 782, 95 Am. St. Rep. 740, 70 Pac. 1037; Moreau v. Saffarans (1856) 3 Sneed (Tenn.) 595, 67 Am. Dec. 582; Holmes v. Jarrett (1872) 7 Heisk. (Tenn.) 506; Gauss-Langenberg Hat Co. v. Allums (1916) Tex. Civ. App. - 184 S. W. 288; Jones v. Neale (1856) 2 Patton & H. (Va.) 339; Sherry v. Gilmore (1883) 58 Wis. 324, 17 N. W. 252.

Where the partnership name contains the surnames of both partners, though their Christian names are omitted, the deed is nevertheless sufficient in form to vest the legal title in such partners, inasmuch as parol evidence may be introduced to remove the latent ambiguity and identify the grantees. Cole v. Meete (1898) 65 Ark. 503, 67 Am. St. Rep. 945, 47 S. W. 407.

A deed made to a firm by the firm name instead of by the names of individual members of the firm is not, for that reason, void. It is a latent ambiguity that may be explained and supplied by parol. La Fayette Land Co. v. Caswell (1910) 59 Fla. 544, 138 Am. St. Rep. 166, 52 So. 140; Cawthon v. Stearns Culver Lumber Co. (1910) 60 Fla. 313, 53 So. 738.

A deed made to a partnership by its firm name, of property purchased by the firm at a judicial sale, is effective, where one of the partners dies before the sale is confirmed, to convey to the surviving partner an undivided onehalf interest in the land. Blanchard v. Floyd (1890) 93 Ala. 53, 9 So. 418.

A deed to one "and his associates" passes the deed to the person named, the term "associates" not describing any grantees with sufficient definiteness. Ennis v. Brown (1896) 1 App. Div. 22, 36 N. Y. Supp. 737.

A conveyance to a partnership by its firm name, which does not include the name of any of the partners, does not vest in it any legal title, because the partnership is not recognized in law as a person. Percifull v. Platt (1880)

the legal title in all the partners, including those designated by the words

36 Ark. 456; Spaulding Mfg. Co. v. Godbold (1909) 92 Ark. 63, 29 L.R.A. (N.S.) 282, 121 S. W. 1063, 19 Ann. Cas. 947.

If none of the individual names of the copartnership appear in the deed, either by mention or description, it must fail to carry the legal title to the land for want of a grantee capable of taking. Riffel v. Ozark Land & Lumber Co. (1899) 81 Mo. App. 177.

But a deed running to a partnership, the name of which does not include the name of one of the partners, while void at law, may be reformed in equity, where the property was in fact purchased by the members of the firm individually, and the deed was taken in the name of the firm by mistake of the draftsman. Spaulding Mfg. Co. v. Godbold (1909) 92 Ark. 63, 29 L.R.A. (N.S.) 282, 135 Am. St. Rep. 168, 121 S. W. 1063, 19 Ann. Cas. 947.

5 Wright v. Brooks (1913) 47 Mont. 99, 130 Pac. 968; Walker v. Miller (1905) 139 N. C. 448, 1 L.R.A. (N.S.) 157, 111 Am. St. Rep. 805, 52 S. E. 125, 4 Ann. Cas. 601; Hollingsworth v. Wm. Cameron & Co. (1913) - Tex. Civ. App. —, 160 S. W. 644.

But,

Contra, Barnett v. Lachman (1877) 12 Nev. 361, in which a conveyance of land to Thomas Barnett & Bro. was held to vest the legal title in Thomas Barnett alone. The court said: "It may be true, as was argued by appellant, that the term 'Bro.' is not usually as uncertain as 'Co.' It would seem to limit the inquiry as to which brother was meant, and if there was only one brother it might be said that there was no good reason why such brother should not take the legal title. in reality, the term 'Bro.' may be just as uncertain as 'Co.' It is not uncommon, we believe, after a firm name has been once established, for other persons than the original partners coming into the firm as partners, to continue business without any change in the firm name. But, be this as it may, it is quite evident that it would be unsafe to hold that a purchaser of real estate is bound to ascertain who the partners composing the firm are. If such a rule should be adopted, it would have a tendency not only to create uncertainty in the transfer of real property, but would

"and Bro.,"

"and Son," or "and Co.," on the ground that the latent ambiguity as to the identity of the grantees is resolvable by parol evidence. Still others have held that a conveyance naming a firm as grantee is effectual to pass the legal title to the members of the firm, although

open wide the door for the commission of fraud. There is no law in this state compelling persons transacting business under a firm name to publicly disclose the names of the individuals composing the firm. Now, if the rule contended for by appellant should be adopted, the purchaser of real property from the alleged copartners would never be secure. To illustrate: The purchaser examines the record and finds a conveyance to 'A. B. & Bro.' It is generally understood in the community that 'C. B.' is the 'Bro.' composing said firm. The purchaser, upon being so informed, takes the deed from A. B. to C. B. Before the Statute of Limitations expires another brother of A. B. comes into court with an action against the purchaser, and claims that he is the 'Bro.' designated in the deed, and he proves, by clear and positive evidence, that he is the real brother that was a member of the firm at the date of the execution and delivery of the deed, and that his other brothers had falsely misrepresented the facts to the purchaser. What security would the purchaser have in such a case? None whatever. The fact, relied upon by appellant, that the deed in this case is made to T. B. & Bro. of Reno, does not give to the deed any greater degree of certainty. The name, ‘T. B. & Bro.,' is the firm, and does not necessarily or even by implication allude to the brother that resided at Reno. It may have been, for aught that appears in the deed, that T. B. employed his brother Isaac as a clerk, and yet, during all the time of the copartnership, the 'Bro.' who was a member of the firm may have lived at New York or Paris. The law ought not and it does not sanction any rule which would be susceptible of so much doubt and uncertainty, independent of its evident tendency to encourage fraud and perjury. In any event, it must be acknowledged that the doctrine contended for by appellant would surely tend to destroy the security of

none of their names appear in the partnership title.8

Inasmuch as a partnership can take legal title to personal property, a chattel mortgage or bill of sale to a partnership by its firm name is valid. And as a conveyance to a firm, even where not regarded as valid in law to pass

titles to real property, and ought not to be upheld."

6 Hoffman v. Porter (1824) 2 Brock. 156, Fed. Cas. No. 6,577.

7 Brunson v. Morgan (1884) 76 Ala. 593; Printup Bros. v. Turner (1880) 65 Ga. 71; Davis v. Davis (1882) 60 Miss. 615; (semble); Dineen v. Lanning (1912) 92 Neb. 545, 138 N. W. 759; Murray v. Blackledge (1874) 71 N. C. 492; Mann v. Paddock (1908) 108 Va. 827, 62 S. E. 951. But see, Contra, Riddle v. Whitehill (1890) 135 U. S. 621, 34 L. ed. 282, 10 Sup. Ct. Rep. 924; Gossett v. Kent (1858) 19 Ark. 602; Percifull v. Platt (1880) 36 Ark. 456; Winter v. Stock (1866) 29 Cal. 407, 89 Am. Dec. 57; Ketchum v. Barber (1886) 2 Cal. (Unrep.) 698, 12 Pac. 251; Close v. O'Brien & Co. (1907) 135 Iowa, 305, 112 N. W. 800 (obiter); McMurray V. Fletcher (1880) 24 Kan. 574; Gille v. Hunt (1886) 35 Minn. 357, 29 N. W. 2; Arthur v. Weston (1856) 22 Mo. 378; Moreau v. Saffarans (1856) 3 Sneed (Tenn.) 595, 67 Am. Dec. 582; Holmes v. Jarrett (1872) 7 Heisk. (Tenn.) 506; Gauss-Langenberg Hat Co. v. Allums (1916) - Tex. Civ. App. - 184

S. W. 288; and see also Ennis v. Brown (1896) 1 App. Div. 22, 36 N. Y. Supp. 737, in note 4, supra.

8 Wray v. Wray [1905] 2 Ch. (Eng.) 349, 93 L. T. N. S. 304, 74 L. J. Ch. N. S. 687, 54 Week. Rep. 136; Kelley v. Bourne (1887) 15 Or. 276, 14 Pac. 744 (semble). Contra: Percifull v. Platt (1880) 36 Ark. 456; Spaulding Mfg. Co. V. Godbold (1909) 92 Ark. 63, 29 L.R.A. (N.S.) 282, 135 Am. St. Rep. 168, 121 S. W. 1063, 19 Ann. Cas. 947; Riffel v. Ozark Land & Lumber Co. (1899) 81 Mo. App. 177; Trexler v. Africa (1910) 42 Pa. Super. Ct. 542. 9 A chattel mortgage executed to a partnership by its firm name, which includes the name of no person, is good at law as well as in equity, the rule that a partnership, as such, cannot be a grantee in a deed, not applying to personal property. Hendren v. Wing (1895) 60 Ark. 561, 46 Am. St. Rep. 218, 31 S. W. 149.

As a partnership may purchase and