Doe v. Axley, 50 N.C. 440, 5 Jones 440 (1858)

Aug. 1858 · Supreme Court of North Carolina

50 N.C. 440, 5 Jones 440

Doe on the demise of A. J. PATTON et al v. FELIX AXLEY et al.

A deed, granting a lease of land for the purpose of being explored for minerals, wherein the rent is made payable quarterly, and a forfeiture is created by a non-user for a year, but with a right in the lessees to discontinue their operations at any time, nothing more being said as to the duration the lease, was Held to convey an estate from year to year, and that six months’ notice to quit was necessary, before the lessors could terminate the lease.

AoxioN of ejectMent, tried before Dice, Judge, at the Eall Term, 1857, of Cherokee Superior Court.

The only question in this case was, whether, according to the proper construction of the deed, offered in evidence by the plaintiffs, the estate thereby granted, was an estate for years, or an estate at will. It was agreed that if the deed passed an estate for years, the notice given was insufficient, and that the Court should enter judgment of nonsuit, but if an estate at will, judgment should be rendered for the plaintiffs. The following is the deed in question :

“ Know all men by these presents, that we, the undersigned, have entered into the following agreement. In the first place, A. J. Patton and G. E. Morris, on their part, have this day rented and leased unto E. E. Oram and Eelix Axley, a certain tract of land, situated in Cherokee, North Carolina, in district No. 6, containing 170 acres of land, more or less, for the purpose of examining for minerals. The said Oram and Axley are to have the right to enter into the peaceable possession of the said land, and to carry on any operations they may deem proper and right, to develope whatever minerals the land may contain, with all the rights and privileges that may be necessary to cany on the said mining operations. In consideration of the above grant of the right of the said land, the said Oram and Axley agree to pay to the said Patton and Morris, the one-twentieth part of whatever minerals may be found on tbe said land, after tbe ore is dressed and ready for market, to be delivered at tbe said mine, with tbe exception of iron ore, for which the said Oram and Axley agree to pay tbe said Patton and Morris, at the rate of 12-J cents for every 2240 lbs. of iron ore they may use. ' Tbe payments, hereby provided for, are to be made at tbe end of each and every quarter. It is, however, understood, that in case tbe said operation is abandoned, at any time, for the space of one year, it is to operate as a forfeiture of all tbe rights hereby conveyed. Tbe said lease and rights hereby given and granted, are continued so long as the party, or successors, may deem it proper to operate.” Signed and sealed by plaintiffs and defendants.

His Honor being of opinion with the plaintiff, upon tbe case agreed, gave judgment accordingly, from which the defendants appealed to this Court.

Gaither, for the plaintiff.

J. W. Woofin and Coleman, for the defendants.

Pearson, J.

This case turns upon the construction of the deed, which is set out as a part of the record. His Honor was of opinion that its legal effect is to create a tenancy at will, we are of opinion that its legal effect is to create a tenancy from year to ymr, and consequently, the notice given was not sufficient ; for, to determine an estate from year to year, six months’ notice, either on the part of the lessor, or of the tenant, before the expiration of the ewrrent year, that at that time the estate will be considered as terminated, is necessary. This is familiar learning in the text books.

We arrive at the opinion that the deed creates a tenancy from year to year : from a consideration of the purpose, for which the lease was made : — that the rent reserved is payable quarterly :■ — that a condition is annexed, whereby the term is to be forfeited by a non-user, for one year, on the part of the lessors, who were to work the mine ; — -that they have, at any time, the right to discontinue the operation of the mine, and that the formality of a deed, would hardly have been thought necessary, if only a tenancy at will was to be created, which could be terminated, at any. time, upon reasonable notice ; Kitchen v. Pridgen, 3 Jones’ Rep. 49.

Pee Cuexam, Judgment reversed, and judgment of non-suit, according to the case agreed.

His Honor, the Chief Justioe, was absent during the whole of this term, on account of sickness.