Cabe v. Dixon, 57 N.C. 436, 4 Jones Eq. 436 (1859)

Aug. 1859 · Supreme Court of North Carolina

57 N.C. 436, 4 Jones Eq. 436

SAMUEL CABE and others against SAMUEL B. DIXON and others.

Where, on a contract to lease a mine for twelve months, in order that search might be made for minerals, it was agreed that the lessor should make a good title to one half of the minerals discovered, and the lessees permitted other persons (claiming a right) to make explorations and discoveries, which added greatly to the value of the property, without offering to assist, it not appearing that they were ready or able to do the necessary work, it was Held that they were not entitled to a specific performance.

Cause removed from the Court of Equity of Macon county.

Samuel B. Dixon, was seized in fee of a small tract of land in Macon county, of about 56 acres, which, about the 1st of January, 1851, he contracted to sell to his brother, George W. Dixon, at $50, about $20 of which, was paid down, and the remainder secured by bonds, at one, two and three years in equal instalments, and took a bond from him in the penalty of $110, to make him, the said George W. Dixon, a title to the same as soon as the last note was paid. "While this contract was in force, the said George W. Dixon executed to the plaintiffs the following contract in writing :

“ North Carolina, Macon County.

“ Be it known to all whom it may concern, that I, George W. Dixon, of Macon county, North Carolina, this day lease unto John Cabe of Fannin county, Georgia, and Samuel Cabe and Leander F. Cabe and L. D. Cabe, of Macon county, North Carolina, my lot of land, I purchased of S. B. Dixon in the 13th District, for the term of twelve months, from this date, for the purpose of mining and searching for copper or any other valuable mineral: Therefore, should the said Cabes discover, or cause to be discovered, any copper or other valuable minerals on said lot, in said time, then, I agree, and hereby bind myself, to make, or cause to be made unto the said Cabes, their heirs or assigns, good and lawful titles to one half of said mineral or minerals, together with the undisturbed right of way, wood and water, for mining purposes.

June 7th, 1854. Signed, Geo. W. Dixon.”

One fifth of the interest, thus conveyed, the parties sold to Aaron Matthews, and a memorandum thereof is endorsed on this paper, and he thus becomes, with the Messrs. Oabes, a party plaintiff.

The bill alleges that in pursuance of said contract of lease, plaintiffs “ prepared to develop all the mines on the said land, and went for that purpose, but that the defendant, George W. Dixon, and the other defendants, their confederates, refused to let them enter upon said land for that purpose or any other that they destroyed the written obligation which Samuel B. Dixon had given to George W. Dixon, and that the former then proceeded, and did lease the premises to the defendants, Saunderson, Ledford, Curtis, Cook, Trusty and Forrester, who gave to the said George W. Dixon a written obligation, in the penalty of $10,000, to hold one half of said land in trust for him in fee ; that this was all done with a full knowledge, on the part of these defendants, of the plaintiffs’ equitable rights. The plaintiffs allege that they again and again requested to be let into possession, and as further inducement, offered to pay to S. B. Dixon all the remainder of the purchase-money due him from G. W. Dixon, which turned out to be $37,62, which was refused, and the plaintiffs were fraudulently and forcibly prevented from testing the mine, while “ they, (the defendants,) interfering thus improperly, have, at little cost, at the very jpomt at whieh they (plaintiffs) intended to oommmice work, discovered a valuable and rich copper vein.” The prayer is for a specific performance and an account.

All the defendants answered. George W. Dixon says that he supposes he did execute a paper, like that set out in plaintiffs’ bill, but that he was very drunk when it was done, and was made so by the contrivances of the plaintiffs,- Leander, Lorenzo and Samuel Cabe, and, therefore, thinks plaintiffs ought not to have the relief sought. He further says, that in the fall before, he had given Forrester and Trusty a lease on it, and the exclusive right to work, in searching and operating for metals thereon ; that one-fourth of the minerals discovered, was to be their compensation for such services, and the said George was to bear an equal share of the expense after the mine was opened, and an exhibit is filed of that purport, dated 21st of November, 1853; that Forrester and Trusty, iu the month of September, 1854, commenced working the mine, and, associating the defendant Cook with them, they, in October following, made discoveries of copper to some extent; that in December, the mine, under their operations, proved to be very promising / that during the progress of these explorations, between September and December, finding the expense very heavy, and the associates being poor, they took into their company the other defendants, Sanderson and Led-ford, who contributed materially to the means and participated in the efforts to develop the mine. Yarious sub-divisions and modifications of the interests of the parties took place, and the other defendants, Grady and Curtis, were also admitted on certain terms, all of which shares, interests and modifications of the association, are set forth in the answers and by exhibits, but are not essential in the view taken of the case by the Court. It appears from the proofs filed, that during the progress of the work, the plaintiffs, or some of them, were often present; that they made frequent enquiries as to the extent of discoveries made, and were informed, without reserve, of the results, but made no offer, and asserted no right to participate in the expense or profits of the enterprise until after the property had become of very great value, (one 48th part having, at one time, sold for $500, and the other interests being considered of proportionate value.)

The cause was set down for hearing on the bill, answers, proofs, exhibits and former orders, and sent to this Court.

Shipp and Merriman, for the plaintiffs.

JY. W. Woodftn, J. W. Woodjvn, and Diehson, for def’ts.

Pearson, C. J.

The equity of the plaintiffs is not made out, because there is no proof that they “ discovered or caused to be discovered any copper or other valuable mineral” on the land mentioned in the pleadings, which was the consideration of the argreement, which the bill seeks to have specifically performed; nor is there any proof that they were prepared, or able, or offered to do the work necessary to test the mine ; on the contrary, according to the proof, they stood by and allowed the defendants to be at the expense and labor of testing the mine, and now seek, without having paid any consideration, or having made any outlay of money, or labor, to deprive the defendants of a title which they have paid for by labor and money.

Per Curiam, Bill dismissed.