delivered the opinion of the court:
It will be noticed that the lease, executed by Hosea Potts to P. H. Haley, and which was subsequently assigned to the plaintiff in error, Nevin McConnell, granted bargained, sold and conveyed unto Haley, his. successors or assigns, all the coal, iron ore, clay, oil, stone, gas, and all other minerals, for the space of fifty years from the date of the lease, to-wit, December 29, 1899, and contained the following provision: “If no developments are made within three years from this date, this lease is void.” The period of three years ended on December 29, 1902. The lease was assigned by Haley to the Hardin Mineral Company on March 20, 1900, and was subsequently assigned by that company, as we understand the evidence, to the plaintiff in error, McConnell, about the first day of December, 1902. Nothing appears to have been done by Haley, or the Hardin Mineral Company, in the way of developing the property, but during the month of December, after the lease had been purchased by McConnell, he went to work upon the land with picks and shovels, digging in the rock holes and trenches. Men, employed by the plaintiff in error, began digging these trenches about the middle of December, 1902. McConnell testified that his men proceeded to cut trenches, cross-sections, and uncover the rock wherever they found it, and that, where mineral or spar was found, shafts were commenced, and that he has spent in developing this property in the neighborhood of $700.00.
It is claimed, on the part of the defendant in error, that nothing was done within the period of three years by Haley, or any of his assigns, in the way of making the developments required by the lease; and that the work, which was done by the men employed by plaintiff in error on December 16, 1902, and thereafter, up to and including December 29, 1902, when the three years expired, was not such work in the way of “developments,” as was contemplated by the lease; that some holes in the ground were dug with pick and shovel by farm hands, but that no shafts were sunk within the three years, and that no mining machinery or drills or pumps or other necessary apparatus were used in the way of mining. The position, taken by the defendant in error, is that, because of the failure of the lessee, Haley, or any of his assigns, to develop the property in the way in which the defendant in error contends that it was necessary to develop it, the lease was forfeited, and that the lease having been forfeited, the defendant in error has the right to have the same canceled. The deed, mentioned in the statement preceding this opinion, which was executed by Hosea Potts to the defendant in error, Pierce, on December 20, 1902, recites npon its face that the deed was made “subject to the P. H. Haley lease.” So far as it is contended by defendant in error that the lease was forfeited by Hosea Potts by any action taken by him before December 20, such contention cannot be sustained under the proofs. When Hosea Potts deeded the mineral in and upon this land to Pierce on December 20, 1902, and recited in the deed that it was made subject to the Haley lease, he thereby recognized the existence and validity of the Haley lease at that time.
If Hosea Potts had any right to forfeit the lease prior to his execution of the deed to Pierce on December 20, 1902, he waived the cause of forfeiture, and was estopped from insisting upon a forfeiture by reason of his recognition of the validity and existence of the lease in the manner stated. Where a right has accrued to declare a lease forfeited, and the lessor has done acts which amount to a waiver of the forfeiture, the assignee of the lessor acquires no right to declare a forfeiture for the causes, which have been waived by the acts of his assignor. (Watson v. Fletcher, 49 Ill. 498.) It would seem to be clear that neither Potts, the lessor, nor Pierce, the assignee of Potts, had any right to declare a forfeiture of the lease until the expiration of the three years on December 29, 1902. Whether there was any valid forfeiture after the expiration of the three years by the defendant in error, Pierce, is a question which we do not deem it necessary to decide, or to discuss, except to say that forfeitures are regarded with disfavor by the courts, so that a contract, looking to a forfeiture, will be construed strictly. Forfeitures are not favored in law, and, in the eyes of the courts, are regarded as odious. (White on Mines and Mining and Mining Remedies, secs. 243, 249, 250; 2 Wood on Landlord and Tenant, p. 1192). Upon other grounds, argued by counsel for both parties, than those above indicated, we are of the opinion that the decree of the court below is erroneous, and must be reversed.
First—“A conveyance of all the minerals, or a defined part or kind thereof, in or under a tract of land, passes an estate therein in fee. * * * Such an owner has all the rights of an owner of land in fee, with the same remedies to assert and defend those rights and to protect his title. The ownership of the mineral is vested immediately upon the delivery of the conveyance. Minerals in place, then, being land, are conveyed in the same manner and are subject to the same rules as regards their transfer, as land is.” (Barringer & Adams on Mines and Mining, pp. 36, 25, 26). In Manning v. Frazier, 96 Ill. 279, we held that coal and other mineral in a mine and under the soil are real estate, and, as such, are capable of being conveyed like any other real estate, and when once conveyed by deed, may pass by inheritance or by deed of conveyance. In Ames v. Ames, 160 Ill. 599, it was held that coal, underlying lands, may be acquired by a title absolute and in fee in one person, while the right to the surface is in another, and that the owner of land has the right to convey the coal and mineral rights underlying his land, and reserve the surface absolutely in fee to himself; and that “when such conveyance is made, two separate estates exist, and each is distinct. Each may be conveyed by deed, each may be devised under a will, each will pass to the heir under the Statute of Descents, and each is subject to taxation. * * * In all these phases each estate passes, and must be treated as real estate.”
These mining claims have been recognized as legal estates of freehold, and are subject to partition. (Ames v. Ames, supra; Merritt v. Judd, 14 Cal. 60; Hughes v. Devlin, 23 id. 502; Barringer & Adams on Mines and Mining, pp. 747, 748).
The bill, filed by the defendant in error in the case at bar, proceeds upon the theory that the interest of the parties in such minerals is subject to partition. But, under our statute, a complainant is required, in order to entitle himself to a partition of premises, to show that he is the owner of an undivided interest therein as tenant in common with the party or parties, against whom he seeks partition.' (Euddell v. Wren, 208 Ill. 508). Defendant in error alleges in his bill that Prank Staubitz was the owner of an undivided half interest in the minerals in question, and, in order to show that he himself and Staubitz were the owners each of an undivided half, he introduced a deed, made by Hosea Potts to himself and Staubitz on March 26, 1903. But the defendant below, the present plaintiff in error, Nevin McConnell, introduced in evidence a prior deed, executed on December 20, 1902, by which Hosea Potts conveyed the same interest in the minerals on the lands, described in the deed of March 26, 1903, to the defendant in error, Henry B. Pierce, alone. When on December 20, 1902, Potts deeded his interest in these minerals to Pierce, Pierce thereby became the owner of the whole of the interest of Potts in said minerals, or at least acquired the fee simple title to the whole. When, therefore, subsequently, on March 26, 1903, Potts conveyed the same premises to Pierce and Staubitz, no title whatever passed to Staubitz, because all the title in Potts had previously passed out of him and vested in Piercé. The only way, in which Staubitz could acquire an undivided half interest would be through a deed, executed to him by Pierce, conveying such undivided half. As we read the record, no objection whatever was made to the deed of December 20, 1902, executed by Potts to Pierce, when the latter deed was introduced in evidence by the plaintiff in error. The proof showed that this deed was delivered to the brother of the defendant in error, Pierce, and came into the hands of Pierce, and was in his possession for three months. The evidence of Pierce himself clearly shows that this deed of December 20, 1902, was delivered to Mm, and accepted by him. It is true that the deed of March 26, 1903, recites that it was made to correct a former deed, dated December 20, 1902. But it could not have the effect of so far correcting the former deed as to vest a half interest in Staubitz, when such interest had already passed out of Potts, the grantor in the deed. It is quite clear that the deed of March 26, 1903, was obtained for the purpose of making it appear that Staubitz was the owner of an undivided half of the property, so as to enable the defendant in error to file a bill for partition; but as the deed did not have the effect of passing any interest to Staubitz, this bill for partition against Staubitz, as a defendant, is improperly filed.
It is claimed on the part of defendant in error that Staubitz, who was his brother-in-law, paid to Potts a part of the purchase money of the land, and had an equitable interest therein, and that a partition may be made of equitable interests in land, as well as of legal interests. It is not necessary to consider this feature of the case as it is not here involved, for the reason that the bill of defendant in error alleges that he was the owner in fee of an undivided half of these minerals, and that Staubitz was the owner in fee of the other undivided half. There is no allegation in the bill that the interest of either party was an equitable interest, but there is an express allegation that both interests were legal interests, and titles in fee. It, therefore, avails defendant in error nothing that there may have been an equitable interest of some kind in Staubitz.
Second—It is claimed, however, on the part of the defendant in error that the present bill is not only a bill for partition, but that it is a bill to remove the lease, which is claimed to have been properly forfeited, as a cloud upon the title.
It is the settled doctrine of this court that, under the statute of this State, a court of equity has no jurisdiction of a bill to remove a cloud upon title, unless it is alleged in the bill, either that the complainant is in possession of the land, or that the land is vacant and unoccupied, and the proof must sustain the allegation as to such possession, or as to the fact that the land is vacant and unoccupied. (Glos v. Kemp, 192 Ill. 72, and cases there cited). In the case at bar, the proof shows 'that the plaintiff in error was in possession of the premises in question, and that the defendant in error, who filed the bill, was not in possession. At any rate, so far as any possession is proven at all, it is the possession of plaintiff in error, whose men went upon the land and dug trenches and sunk shafts. It necessarily follows, therefore, that the court below had no jurisdiction.to entertain the present bill as a bill to remove a cloud, irrespective of the question whether the lease referred to was a cloud or not.
Defendant in error contends, however, that, here, the relief sought, in the way of removing the lease as a cloud upon the title, is merely incidental to the main relief of partition, and that, where the removal of the cloud is thus incidental to the other relief which gives a court of equity jurisdiction, it is not necessary to show that the complainant is in possession of the property, or that the same is vacant and unoccupied. The position is that, here, a court of chancery had jurisdiction to decree a partition of these minerals, and that, having such jurisdiction, it would proceed to remove the lease as a cloud, independently of the question whether the complainant had possession, or not, or whether the land was vacant and unoccupied, or not. The trouble with the application of this doctrine to the case at bar is, that, for the reasons already stated, the court had no jurisdiction to decree partition. Inasmuch as the bill could not lie for partition, because the proof showed that the complainant was the owner of the whole of the land, and the other party, alleged to be a tenant in common, owned nothing, the bill cannot be regarded as seeking the removal of the cloud as a relief incidental to the partition. As the right to partition does not exist for the reasons stated, the bill must stand, if it stands at all, as an independent bill to remove a cloud from the title. Viewed as such, it cannot stand, unless the complainant is in possession of the land, or the land is vacant and unoccupied. Neither of these conditions here exists.
For the reasons stated, we are of the opinion that the decree of the court below was erroneous. Accordingly, the decree of the circuit court is reversed, and the cause is remanded to that court for further proceedings in accordance with the views herein expressed.
Reversed and remanded.