This is a singular bill, seeking merely an account of the profits of working the mines by some of the defendants, and payment of shares thereof to the plaintiffs, without asking any relief in respect of the title of the land, and without bringing before the Court Cog-gins, under a contract with whom the plaintiffs claim, and under whom also the defendants claim; and without bringing in William Owens, on whose consent to their lease and contract they rely to give them efficacy, and under whom also the defendants claim, who have worked the mines. But, without noticing any objections arising from these circumstances, there are others upon the facts which are decisive against the bill.
It is objected, first, by the defendants’ counsel, that the plaintiffs have failed to establish their title, as set forth, under the wills of Dews and Logan, two of the lessees; as they are not admitted in the answers, nor copies of them exhibited. This objection is, of course, fatal; but if there were nothing more in the cause, the Court would be disposed to consider it a case of surprise, and allow the proofs to be completed by ex*376hibiting copies of the wills now. It would, however, be of no avail to do so, as there are other grounds, on which all relief to the plaintiffs must be denied. In the first place, as far as the assent of W. Owens, (who was in possession under ^ previous lease for a term, of which 22 years were unexpired) is material to the validity of the subsequent lease, under which the plaintiffs claim, on which assent, indeed, the bill rests entirely the efficacy of that lease as against Owens, the evidence directly contradicts the statements of the bill. There is no proof whatever of such assent. Although Mr. McEntire, one of the parties to that lease is examined, the plaintiffs do not even ask him a question upon the point; and it is clear from what he and the Avitnesses, Cole and Mrs. Owens, all say, that W. Owens did not know of the lease until after it had been made, and that he never did agree to it. It is ti*ue, Walker says, that Owens was present when Logan made a verbal agreement with Coggins, and made no objection. But that clearly relates to the agreement, subsequent and distinct from the lease between Coggins and Logan alone, for the sale of Coggin’s mineral interest, as it is called, under the lease itself: for Walker speaks of the whiskey and Roar, as being paid on the contract to which he deposes, which must refer to the subsequent transaction, since, for the original lease itself there was no such consideration as appears upon its face. McEntire says, indeed, that, after at first refusing, Owens-consented to let them “ test” the mines ; which, Ave suppose, means that he allowed them to make some examinations with the view simply to ascertain, whether the land contained gold, or enough of it to be worth working. This he might have done, and, as we think, did, as one mode, and perhaps the easiest, of preventing disputes betAveea the parties, as he would naturally expect, if it should turn out there was little gold, that he would have no more trouble upon the subject That is very different from his yielding to them, as a matter of right under their *377lease, ingress upon the premises for the purpose of opening and working mines where they pleased.
■. But, secondly, McEutire says, that, after they had satisfied themselves by “ tests,” that there was too little gold to make the business worth pursuing, the lessees from Coggins abandoned all idea of it; and there can be little doubt that they so informed Owens. It is natural to suppose so, after what had passed between them, as stated by this witness. But the other two, Cole and Mrs. Owens, state that Logan and Coggins expressly agreed to rescind. Whether they did it effectually or not, as between themselves, is not material. It is sufficient, that Logan and Coggins so represented to Owens, and that, under that belief, he purchased the premises from Coggins as unincumbered and unaffected by either of the previous contracts with Logan, or with him and his associates. Certainly contracts cannot afterwards be set up with good faith against W. Owens, or any persons claiming under him; and especially after lying by, without once setting up the claim, for nine years or thereabouts.
When William Owen, the tenant under Hall, purchased from Coggins the reversion-in fee on the land, the two estates, to-wit, his term and his reversion in fee then meeting in the same person, would have had the effect of merging the precedent lesser estate in the fee, if there had been no intermediate estate, outstanding in a third person. But merger never takeá place, when it would have the effect to destroy intermediate vested estates in third persons. If Coggins’ lessees had been the owners of their term in all the land, and the lease was to have commenced immediately, it would in law have been a vested estate in interest for the term of thirty years. And, although they could not have taken possession of their term, inasmuch as the possession belonged to Owen, the first lessee, they would, however, have had a concurrent lease, and hay,e been entitled to *378all the rents issuing out of Owen’s term; and, on the expiration of that term, they could have legally éntered, and possessed the land for the residue of their own term, if the deed from Coggins to Logan and others created only what is sometimes called a future lease, to-wit, a contract to have a lease for thirty years, to commence after the lease to Owen, then it would have conveyed no present estate.in the land, either in interest or in possession. It would have been only an interesse termini,. which neither makes a merger nor prevents one, but may bo accelerated, in the time of its becoming an estate in the land by possession, by the merger of an antecedent vested term by the termor purchasing in the next immediate estate in reversion. Whitechurch v. Whitechurch, 2 Peere W. 236. Dyer 112 (a.) 10 Vin. Ab. 204, vol. 3 and 264 pl. 3. Sheph. Touch. 100. Preston on Estates, 208 to 212 (new pages). The deed from Coggins to Logan & al. cannot be construed an estate or lease of the land for thirty years, concurrent with the lease to Owen ; because the tilings, attempted to be leased in that deed, to-wit, minerals, timber and fire-wood, were not in law capable of being leased, so as to enable the lessee to have a concurrent lease with Owen, in those things. Coggins,, at the date of his deed to Logan and others, could not himself have entered upon Owen, and opened the mines, cut timber or fire-wood, without tbe permission of Owen. And if he could not do such things himself, it is certain, that be could not assign to Logan and others the right to do them This deed, therefore, conveyed no present estate, out of the reversion. It is then to be considered by us, as a contract only, to have the mineral ores, timber, fire-wood, &c. at the time of tbe expiration of 'the term of Owen. It then is an interesse termini, and, coming in between Owen’s term and reversion, it cannot prevent a merger of his term in his reversion. By that reversion, this interesse termini was accelerated, in the time it was to become an estate, *379For it was to become an estate, as soon as the thirty years’ lease of Owen ceased to exist; and it did cease to exist, as soon as it was merged, to-wit, on the very day Owen purchased the fee from Coggins. The instant Owen’s term merged in his reversion, that instant the interesse termini of Logan and others sprung into an estate, coupled with a right of entry into the possession of the things leased. They had never alienated their interest in the land by any writing. It, therefore, by the statute of frauds, still remained in them. But Owen and liis s'm, William B. Owen, and the defendants, have continued in the adverse possession of the land, ever since Coggins sold the reversion to Owen, to-wit, ever since September 1831, This bill is an ejectment bill, brought to have an account of the profits of land, which has been, and now is, in the possession of William Owen and his assignees for many years. This Court never relieves in such a case, before the plaintiffs recover possession of their term at law. And, secondly, the answer of neither of the defendants admits that the two plaintiffs, George W. Logan and John W. Logan are the executors of John Logan, dec’d., or that the said John Logan died testate. The defendants do not admit, that Thomas Dews, Jun. is dead testate ; and, if that fact appeared, his executor ought certainly to sue, and not his legatee, Thomas Dews, Sen. as ho is described in the bill. There is a replication to all the answers, and there is neither any probate nor any copies of the wilLs of John Logan or Thomas Dews, Jun. We must, for the reasons above mentioned, dimiss the bill, with costs to be taxed against the plaintiffs.
Bill dismissed with costs.