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requiring actions to sell or subject realty to be brought in such county. 2. VENUE 325(2) – MINERALs - PURCHASEMONEY LIENS. Where landowner gave 99-year lease of mineral lands, for part cash, the balance to be paid within six months after beginning of quarrying, mining, or drilling, and the lease contained language appropriate to a realty conveyance, there was a sale of real property, and the owner's suit to enforce lien on minerals for purchase price was local. 3. MINES AND MINERALS @:70(6)—PURCHASEMONEY LIENS-ENFORCEMENT—PARTIES. In vendor's suit in the county where the land lay to enforce purchase-money lien on minerals, against the vendee's assignee, the vendee, though resident in another county, was a necessary party, and was properly in court by summons served in the county of his residence. 4. MINES AND MINERALS &70(2)—GENERAL WARRANTY DEED-RECORDS. Where a mineral lease, amounting to a conveyance of the minerals as land, with reservation of purchase-money lien, is of record, a subsequent conveyance by the lessors of the land, without reservation of any kind, by general warranty deed, does not convey to the vendees any right in the minerals not owned by vendors. 5. MINES AND MINERALS (3:254(2)—MINERAL AND OIL LEASE-CONSTRUCTION.—PAYMENTWHEN DUE. Where 99 year mineral and oil lease provided for payment when the lessee began removing stone, the balance became due at such time, whether or not the lessee acquired the right to remove stone as being covered by the terms “minerals and oils.”

Appeal from Circuit Court, Hardin County.

Action by Joe Hicks and wife against Will C. Kennedy and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Wm. McKee Duncan, Of Louisville, and G. K. Holbert, Of Elizabethtown, for appellants. H. L. James, of Elizabethtown, for appellees.

CLARKE, J. In 1903, appellees, Joe Hicks and wife, who were plaintiffs below, executed, acknowledged, and delivered to defendant Will C. Kennedy the following instrument, the description of the land omitted :

"This lease was made this 20th day of October, 1903, by and between Joe Hicks and Rosie Hicks, his wife, of Hardin county, Kentucky, parties of the first part, and Will C. Kennedy of the county of Jefferson and state of Kentucky, party of the second part, witnesseth:

“That the parties of the first part in consideration of the stipulations and covenants thereinafter contained on the part of the said party of the second part, to be kept and performed has leased, demised and let unto the party of the second part, his heirs, executors, administrators and assigns for the sole and only purpose of quarrying, drilling and digging for minerals and oils of any kind, the exclusive right to all that certain tract of land situated near Stephensburg in Hardin county, Kentucky, and bounded and described as follows: [Two tracts containing 125 and 3 acres, respectively.]

“Said second party to have and to hold said premises for said purposes only for the term of 99 years from this date. In the consideration of said lease, the said second party hereby pays to the first party the sum of $200.00 cash in hand, the receipt is here acknowledged, and

agrees and binds himself to pay said first party the further sum of $300.00 within six months after any party, company or corporation begins quarrying, mining or drilling for minerals, oils

or other things in the neighborhood of said first party, said party of the first part to fully use and enjoy the said land for farming purposes except such part as shall be necessary for the purpose of drilling, quarrying, etc.; and a right of way to and from place or places of operation. Said second party shall have the right to move or place all necessary buildings and machinery and to lay tracks on, said land to assist in moving stones, etc. The unpaid $300 is payable at any time second party sees fit to begin work on said land to remove stone and said second party is to have the right to remove all machinery, buildings, etc., placed on said land by said second party.

“Given under our hands the day and date above written.”

In 1907, Hicks and Wife conveyed the same land, without reservation of any kind, by general Warranty deed, to W. H. Oliver and others. April 13, 1913, Kennedy assigned Whatever rights he had under the above contract to the Stephensburg Stone Company, and it began to quarry Stone on the land. Thereafter Hicks and Wife filed this action in the Hardin circuit court against Kennedy and the Stephensburg Stone Company, Seeking a personal judgment against Kennedy for the unpaid $300 mentioned in the contract, and that they be adjudged a lien upon the mineral rights in the land Sold to Hicks and assigned by him to the Stone company, and that same be sold to satisfy their claim.

Kennedy, a resident Of Jefferson County, Was served with Summons in that county, and, before answering, made and saved the question of the Court’s jurisdiction of his person; and his first insistence here is that the court erred in ruling adversely to him on that question, a decision which disposes Of all questions, Save One, raised by both defendants, because all, with the single exception, depend upon whether the written instrument executed by Hicks to Kennedy Was simply a rental contract, as insisted by defendants, or a conveyance of real property as maintained by plaintiffs and held by the C0urt.

We cannot refrain from stating here that upon this interesting question counsel for appellants in their brief have presented neither argument nor authority, other than their own assertion; and counsel for appellees have not favored us With any brief, which places upon the court, if the question is to be discussed in the Opinion in a manner justifying its recognition hereafter as authoritative precedent, a burden of research that Ought to be borne Or attempted at least by counsel, and that interferes materially with our efforts to relieve the congested condition Of Our docket. That the question is an interesting one and not free from difficulty may be illustrated, and the question clarified Somewhat at the same time, by the following quotation from the opinion of the United States Circuit Court of Appeals in the case of Halla v. Rogers, 176 Fed. 709, 100 C. C. A. 263, also reported in 34 L. R. A. (N.S.) 120: ... “In an endeavor to ascertain what property, if any, is conveyed, and what rights, if any, are granted, by an instrument, whether it be called a lease or something else, affecting mining claims or minerals, some important distinctions must be observed. Minerals are land (Castillero v. United States, 2 Black, 1, 17 L. Ed. 360) so long as they are undisturbed, and must, be conveyed with the same formalities as other lands are conveyed. The owner of both the minerals and the other land may convey the minerals, in which case the corpus, the corporeal hereditament, passes. Thereby a severance is effected, the vendor remaining the owner of that part of the land which does not consist of minerals, and the vendee owning the land which consists of minerals. The owner may, on the other hand, convey the minerals upon condition that the vendee extract them by a specific time, or in a stipulated mode; or that title shall pass only when certain royalties be paid; in these instances there is no present consummated sale.”

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[1] The view above expressed that the OWner may convey the minerals upon condition that the Vendee extract them by a Specified time, in which case there is no present consummated sale, is hardly accurate, but it is true that the OWImer may convey mineralS upon condition that the vendee extract them by a specified time in such a manner that there is no present consummated sale or in such a manner that there is a present COnsummated sale, depending upon Whether the title to the minerals WestS in the Vendee before Or after Separation; and SO royalties usually, if not always, become due and are a lien upon the minerals after separation, and consequently as Chattels. Whereas if, under the conveyance, the title vests with a lien reserved for unpaid purchase money payable before Separation, then the lien attaches to the minerals as real estate. Therefore an action to enforce a lien for royalties upon minerals after separation is transitory (Central Ky. Natural Gas CO. V. Stevens, 134 Ky. 306, 120 S. W. 282), but if the conveyance Vests the title to the minerals in the Vendee and retains a lien for unpaid purchase money, due and payable before the severance, then the action to enforce that lien by sale of the minerals while a part of the land would manifestly be local to the county where the land is located, under section 62, Civil Code, Which requires an action to sell, recover, or subject real property to be brought in that county. Bramlett v. Couch, 105 S. W. 460, 32 Ky. Law Rep. 311. Whether a lease such as the instant One “is merely a lease of the land with the privilege of removing the minerals during a certain period, Or is in reality a Sale of the land, is a question which is determined by the facts of each individual case and the laws of the particular jurisdiction.” 18 R. C. L. 1186. See, also, 27 Cyc. 690; Kincaid v. McGowan, 88 Ky. 91, 4 S. W. 802, 13 L. R. A. 289; note to 18 L. R. A. 492; 26 L. R. A. (N. S.) 614; 9 Ann. Cas. 524; 140 Am. St. Rep. 9.

[2] A lease, almost identical in its terms

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Of conveyance, was held by the PennsylVania Supreme Court in Barnsdall V. Bradford Gas Co., 225 Pa. 338, 74 Atl. 207, 26 L. R. A. (N. S.) 614, to pass the title to the minerals as real estate, a corporeal hereditament. In that case the term was but 10, years, and the consideration Was a royalty. In the lease before us the term is 99 years, and the consideration was not dependent upOn the quantity of minerals produced, or Whether, in fact, any were ever severed; and, while the length of term is probably immaterial, the manner of payment for the minerals in the lease involved here is such as to fix its character as a conveyance of real estate, much more certainly than the manner Of payment in the lease in the Barnsdall Case. And this suggests it seems to us, one factOr Of Controlling Weight, viz. the manner of payment of the consideration, in the construction of a mining contract for a term of years. Whenever the contract employs the language and Observes the formalities required for a conveyance of realty, and the consideration is paid or made payable before Severance, as here, the contract is a sale of real property; but, when the consideration is not payable until after severance, the COntract may be a sale Or an agreement to sell realty or personalty, dependent upon the language employed. In this lease, the language employed is sufficient, and purports to convey title to real estate; all of the formalities of execution and recordation were observed; a part of the consideration Was paid in cash, the balance payable upon the happening of a contingency other than the removal of the minerals and regardless of Whether the minerals were ever removed; and there are no provisions for further payments of any kind either as rent or royalties. [3,4] We therefore think it is clear the instrument conveyed to Kennedy the minerals as land; and it follows that this is an action to subject real property to a lien retained in the deed of conveyance for unpaid purchase money, and therefore not transitory but local to Hardin county, where the land is located; that there was no misjoinder; that Kennedy was a necessary party and was properly in court; that, the conveyance to Kennedy being of record, the conveyance to Oliver et al. conveyed to them only What Hicks then OWned, which they understood as is proven by the so-called waiver they executed to Kennedy; and that the Stephensburg Stone Company purchased the minerals from Kennedy subject to the unpaid purchase-money lien due Hicks. [5] The only other question is whether the $300 matured when the stone company began quarrying rock, appellants Contending that the lease covered only minerals and oil; that stone Was neither; and that therefore the condition providing for the payment of the $300 had not arisen. The contract reads:

“The unpaid $300.00 is payable at any time second party sees fit to begin work on said land to remove stone.”

That the Stone company, under its purchase from Kennedy, was quarrying and removing rock from the land is admitted, and whether the lease gave them that right or not, a question not here, it certainly provides for the payment of the $300 upon that contingency.

Judgment affirmed.

(180 Ky. 632) VANOVER v. JUSTICE. (Court of Appeals of Kentucky. May 21, 1918.)

CoNTRACTs @:117(3)—VALIDITY—RESTRAINT OF TRADE.

The owner's stipulation in the lease that he would not, during the term, let any adjacent property to any other person who might set up a store thereon in opposition to the tenant, was not invalid as against public policy, as being a contract in restraint of trade; the feature objected to being merely incidental to a contract otherwise valid.

Appeal from Circuit Court, Pike County..

Action by J. F. Justice against Eliza WanOver. From a judgment for plaintiff, defendant appeals. Affirmed.

Roscoe Vanover, E. J. Picklesimer, and Cline & Steele, all of Pikeville, for appellee.

CARROLL, J. In January, 1912, J. F. Justice, the appellee, entered into a written contract with Eliza Vanover, the appellant, by which he leased from her for a period of three years, with the privilege of extending the lease for three years, a vacant lot and a Store building; his purpose being to conduct a general merchandise Store in the leased building, and a building that he contemplated putting on the vacant lot. After this it appears that Justice learned that Mrs. Vanover was about to lease some adjacent property to parties who intended to conduct in it a general store in competition with him, and in May, 1912, he leased from Mrs. Vanover a vacant lot adjoining the lot he had leased in January for the purpose of erecting a building on the lot. The lease of this lot ran for five years, with the privilege of two more years. At the expiration of the January lease and the May lease any buildings erected on the leased premises were to revert to Mrs. Vanover. In the May lease it was stipulated that: “First party, Mrs. Vanover, agrees to not let any other person put up in Opposition to second party, J. F. Justice.” The purpose of inserting this clause in the lease was to prevent Mrs. Wanover from leasing other adjacent lots that She owned to persons for the purpose of operating a store in competition with the store that Justice intended to conduct in the buildingS On the lots leased by him. It will be observed that the quoted language is not accurately expressed, but it is conceded that

321 it Was the intention of both parties that this clause should be a prohibition against Mrs. VanOver leasing her adjacent property to any person for the purpose of conducting a store in competition with Justice, and it is further admitted by Justice that his sole purpose in entering into the May contract was in Order that he might have inserted therein this prohibitive clause to prevent competition in the business he proposed to engage in.

Shortly after this, and in violation of this clause in her contract, Mrs. Vanover leased for a term of years to one Wright a lot adjaCent to the lot leased to Justice for the purpose of enabling Wright to erect a building On the lot and conduct a Store therein in competition With Justice. Nor is there any dispute about the fact that Wright, soon after this lease was entered into, did erect a building on the leased lot and conduct therein a store in competition with Justice. After this Justice brought this suit against Mrs. VanOver to recover damages and for various breaches of her contracts made in January and May, including the breach committed in leasing the lot to Wright. Waiving preliminary matters, there was an answer controverting the petition and asking, in a counterclaim, damages in the Sum of $2,000. On a trial of the issues there was a verdict and judgment, accordingly, in favor of Justice for $350, and Mrs. Vanover appeals.

On the trial Of the case the court instructed the jury that:

“Under the contract, of date May 16, 1912, the defendant agreed to not permit any person other than plaintiff to put up or engage in business in opposition to plaintiff on defendant's lands during the term of said lease; and if the jury should believe and find from the evidence that the defendant in violation of this provision of the contract leased a portion of her said premises to other persons who, engaged in the mercantile business on defendant's premises and in opposition to plaintiff, and carried the same line of goods as plaintiff carried, they should find for plaintiff on, this item such a sum in damages as they may believe from the evidence will fairly compensate him for. the loss sustained, if anything, by reason of said breach of the contract.”

And the only question on this appeal to which our attention is directed by counsel for Mrs. VanOVer is the COrrectness Of this instruction. On the trial of the case, appropriate exceptions and objections were Saved to all the evidence tending to show that Justice had suffered any damage by reason of this breach of the contract, and the instruction was likewise excepted to upon the ground that the prohibitive clause was in reStraint of trade and Void, and therefore even if it Were breached there could be no recovery by Justice. So that the only question we need consider on this appeal is this contention of counsel for Mr.S. VanOver.

Restating briefly the point at issue, so that it may be clearly understood, Justice, for a

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short term of years, was induced to, and did, lease some property from Mrs. Vanover on her agreement that she would not, during the term of the lease, let any adjacent property to any other person who might set up a store thereon in opposition to Justice. NoW the question is, Was that agreement on the part Of Mr.S. VanOVer Such restraint of trade as to tmake it V0id as against public policy? We have had occasion in a number of cases : O consider the question of the validity of con| racts in restraint Of trade, and StatementS of the ruling we have set down in respect to this question will be helpful in disposing of the Case. In Clemons V. Meadows, 123 Ky. 178, 94 S. W. 13, 29 Ky. Law Rep. 619, 6 L. R. A. (N.S.) 847, 124 Am. St. Rep. 339, MeadOWS, Who Operated a hotel, agreed With ClemOnS, who was conducting a competing hotel in a small town, in consideration of a stipulated Sum, to close his hotel for a term of years. Clemons brought Suit against Meadows to recover damages for a breach of the contract, and the Court, after recognizing the general

rule that contracts in partial restraint of

trade would be upheld, said that this contract Was Void as against public policy, upon the ground that the Sole consideration Was the agreement to pay a sum of money to Meadows in consideration of his agreement to close his hotel. In that case, as Will be seen, the agreement to close the hotel was not incidental to, or a part of, any other contract; it Was Simply a naked agreement for a stipulated consideration not to engage in business. In Barrone v. Moseley Bros., 144 Ky. 698, 139 S. W. 869, the court, in upholding a contract by which Barrone sold to Moseley Bros. a laundry business and agreed to not again engage in that business in a Specified period, Said: “It is, however, a very general rule that all contracts of this character must be incident to and in support of another contract, or sale, in which the covenantor has an interest which is in need of protection. In other words, no conventional restraint of trade will be enforced unless the covenant embodying it is merely ancillary to the main purpose of a lawful trade, and is necessary to protect the covenantee in the enjoyment of the legitimate fruits of the contract, or to protect him from the dangers of an unjust use of those fruits by the other

party.”

The court then proceeded to refer to the Clemons and Other cases holding that where a party for a mere money consideration agreed to quit business, or not to engage in business, the contract Would be Void, and further said:

“But the facts of the case at bar do not bring this contract within the distinction above laid down. It is true that the contract, in words, requires the appellants to abandon a certain line of laundry business; but when the contract, as a whole, is read, it is reasonably plain that the appellants sold this business to the appellees for $1,600, a valuable consideration, and that the agreement to abandon that business in the city of Bowling Green and the

territory adjacent thereto was merely ancillary to the principal contract of sale. And that being true, the case falls within the general rule as above announced, and must be upheld. In so holding, we think the circuit judge was right.” To the same effect is Breeding V. Tandy, 148 Ky. 345, 146 S.W. 742; Fields v. Holland & Son, 158 Ky. 544, 165 S. W. 699, L. R. A. 1915C, 865; Nickell V. Johnson, 162 Ky. 520, 172 S. W. 938. Applying, now, the law as laid down in these cases to the facts of the case before us, We find that Mrs. VanOver, as a part of, and incidental to, a contract that she entered into With Justice for a term of years, agreed not to rent any of her adjacent property to any other person to set up a store in competition with Justice. Now, under all the cases, if Mrs. Vanover had obligated herself not to Set up in business for a term of years in a building adjacent to the property She had leased to Justice, the contract would have been binding upon her, and we can see no distinction between a contract like this and a Contract by which she agreed not to rent her property to another to set up a store in competition With Justice. It is true that this contract Was intended to prevent competition in trade, but it was Only a partial restraint of trade, and did not bind any person except Mrs. Vanover, and only her for a short term of years. It did not prevent any other person from entering into Competition With Justice, or interfere with the establishment of stores on property owned by any other person. There can be no doubt about the Validity Of SO much of the contract as related to the leasing of the lot to Justice, or the agreement of Justice to build a hOUSe thereOn, and the Vice that would have been in the stipulation prohibiting Mrs. Vanover from leasing her property to any other person to conduct a store in opposition to Justice, if this stipulation had contained the whole contract between them, was eliminated by the fact that it was a part Of and incidental to another Valid contract. Wherefore the judgment is affirmed.

(180 Ky. 587) AMBERSON V. FOWLER et al. (Court of Appeals of Kentucky. May 17, 1918.

OFFICERS @->87–TITLE TO OFFICE—USURPATION.—ACTION-PLAINTIFF.

Since Civ. Code Prac. §§ 483-485, confine the right to bring action for usurpation of a county office to the person entitled to the office or the commonwealth, a stranger cannot bring such action, although no one is entitled to the office and the commonwealth’s attorney has refused to do so.

Appeal from Circuit Court, Union County.

Petition by James H. Amberson against Earl L. Fowler and others. From judgment for defendants, petitioners appeal. Affirmed.

Truman Drury, of Morganfield, for appellant. Earl L. Fowler, of Morganfield, Ruby Laffoon, of Madisonville, and N. Powell Taylor, of Henderson, for appellees.

MILLER, J. Appellant J. H. Amberson, a private citizen proceeding in his own right and for the use and benefit of the commonWealth, brought this action against the appellee Earl L. Fowler, charging him with having usurped the office of county attorney of Union county. As a basis for the charge of usurpation the petition alleges: (1) that Fowler was born January 4, 1894, and was less than 24 years of age when he was elected; (2) that at the time of his election he had not been a citizen and resident of Union County for 2 years, and was not so at the time the suit was filed on February 21, 1918; and (3) that he was not a practicing lawyer of 2 years' Standing When he Was elected, and has never been legally admitted to practice law in Kentucky. It is further alleged that plaintiff, before the institution of this Suit, requested N. Powell Taylor, the commonwealth’s attorney for the judicial district embracing Union county, to institute an action in the name of the commonwealth against Fowler for usurping the office of county attorney, stating to the commonWealth's attorney the grounds of usurpation as above stated, but that Taylor declined to bring the action; and for that reason he is made a party defendant to this action. The plaintiff also filed as a part of the petition a certified copy of an order of the circuit court of Vanderburgh county, Ind., showing that the defendant FOWler had been admitted to practice at that bar on September 11, 1916. The circuit Court Sustained a Special demurrer to the petition, and Amberson appealS. Sections 483, 484, and 485 of the Civil Code Of Practice read as follows: “483. If a person usurp an office or franchise, the person entitled thereto, or the commonwealth, may prevent the usurpation by an ordinary action. “484. It shall be the duty of the several commonwealth attorneys to institute the actions mentioned in this chapter against usurpers of county offices or franchises, if no other person be entitled thereto, Or if the person entitled fail to institute the same during three months after the usurpation. “485. For usurpation of other than county offices or franchises, the action by the commonwealth shall be instituted and prosecuted by the Attorney General.” It would seem that these explicit proviSions of the Code necessarily require an affirmation of the judgment, since the right to prevent the usurpation of a county office is there confined to the perSon entitled to the office, or to the commonwealth's attorney; a stranger cannot take that duty upon himSelf. Appellant argues however, that since the petition alleges that Fowler was elected

county attorney, there was no other person entitled to the Office Who could bring the suit; and, as the commonwealth’s attorney refused to proceed in direct Violation of the statute, any citizen had the right to bring the action, and the circuit court had jurisdiction of this action. This, however, by no means follows. The fact that a public Officer declines to sue under authority expressly conferred upon him does not transfer that right Or duty to SOme One, Or every One, Who is not an Officer.

Moreover, it is a well-recognized legal principle that SuitS Of this character Should be brought by some public officer, or by some One personally interested in the Office; and, When the Legislature names the public Officer who may bring the action, it necessarily excludes, by implication, the right of any Other person to bring the action. If it were otherwise, any office holder might be harassed by innumerable suits at the hands of some disappointed person, probably wholly irresponsible.

If the suit is brought by a private citizen, he must show specifically his right to the Office; otherwise he cannot maintain the action. This principle is thoroughly established in this jurisdiction. Wheeler V. Commonwealth, 98 Ky. 59, 32 S. W. 259, 17 Ky. Law Rep. 636; Tillman v. Otter, 93 Ky. 600, 20 S. W. 1036, 14 Ky. Law Rep. 586, 29 L. R. A. 110; King v. Kahne, 87 S. W. 807, 27 Ky. Law Rep. 1080; Wilson v. Tye, 126 Ky. 34, 102 S. W. 856, 31 Ky. Law Rep. 491; Dorain v. Walters, 132 Ky. 54, 116 S. W. 313; Francis v. Sturgill, 163 Ky. 664, 174 S. W. 753. The special demurrer putting in issue appel-. lant's right to maintain this action Was properly Sustained.

Judgment affirmed.

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2. GUARDIAN AND WARD & 92 – SALE OF LAND—BOND BY GUARDIAN.

Where land of an infant is sold to satisfy debts of his ancestor, and because of its indivisibility more land is sold than would have been necessary to satisfy such debts, the guardian of such infant must file a bond, as required by Civ. Code Prac. §§ 493, 497, as to excess of such purchase price, or such excess shall not be paid by purchaser, but shall remain a lien on land until infant becomes of age, notwithstanding exception of cases mentioned in section 489, subds.

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