delivered the opinion of the court:
By his amended bill filed in the circuit court of Jefferson county, the appellee, Allen C. Tanner, alleged that on March 28, 1889, he conveyed, by warranty deed in statutory form,-to Mahala E. Newton one hundred and twenty acres of land in said county for the sum of $1200; that at the end of the deed, after the release and waiver of homestead rights and before the date, the deed contained this clause, “Reserving the coal privileges under said land that subsequent to the execution of the deed, and without his knowledge or consent, -the reservation in the deed was erased from the same and from the record thereof in the recorder’s office; that on February 25, 1911, said Mahala E. Newton and James A. Newton, her husband, conveyed, by warranty deed in like fonn, forty acres of said land to Henry I. Kent without any reservation of coal privileges, and that the conveyance to Kent without reserving the coal privileges to the appellee was made without his knowledge and consent. The appellants, Mahala E. Newton, James A. Newton, Henry I. Kent and Lelah Kent, were made defendants, and the bill prayed that the said James A. Newton and Mahala E. Newton be required to bring the deed made by the appellee into open court and place therein the said reservation, “Reserving the coal privileges under said land;” that the recorder be ordered to insert said reservation in the record of said deed in his office, and that in default of the said James A. Newton and Mahala E. Newton inserting said reservation in the deed the clerk of the court be empowered to do so. Mahala E. Newton and James A. Newton answered, denying that the complainant reserved to himself the coal under the land or that any change was made in the deed or the record subsequent to the delivery of the deed. Henry I. Kent and Lelah Kent did not answer and were not defaulted. The court heard the evidence, and found that the deed from the complainant contained the reservation alleged and that the same was erased from the deed and from the record in the recorder’s office without the knowledge or consent of the complainant, and ordered the defendants Mahala E. Newton and James A. Newton to bring the deed into open court and insert therein said reservation, and in the event of their failure, or of either of them, to insert the same, the clerk was ordered to insert the reservation in the deed, and the clerk was directed to insert the same reservation in the record of the deed in the recorder’s office. From that decree the defendants appealed.
Errors are assigned upon the rendition.of the decree affecting the rights of the defendants Henry I. Kent and Lelah Kent without an appearance or answer by them or a default, and also as to the power of the chancellor to order the grantee, Mahala E. Newton, and James A. Newton, her husband, to bring the deed into open court and insert therein the alleged reservation, but it will not be necessary to consider those assignments for "the reason that we do not regard the proof as sufficient to authorize the decree.
There was no dispute of the facts that the deed of March 28, 1889, when first made, acknowledged and recorded, contained some such words as alleged, reserving the coal privileges under the surface of the land, and that such reservation was afterward erased from the deed and record. The controversy was as to who made the erasures. The deed was made twenty-two years before the litigation, during which time the grantee had been in possession of the land, and it does not appear that the complainant eveipaid any taxes oh the coal rights which he alleges were severed from the surface of the land by his deed, or that he ever gave any attention to the land or to the existence or extent or value of any deposits of coal, or was ever known to make any claim respecting coal rights in the land. The erasure was made soon after the date of the deed. A maker of abstracts, basing his judgment on his abstract books, said that the reservation was noted some time 'between February 5 and July 25, 1889, when a certain book was closed, but there was nothing showing with any certainty that the erasure was not made soon after the transaction. The complainant asserted the fraudulent alteration of the deed and record, and after the lapse of twenty-two years, during which the grantee had been in possession and for aught that appears paying taxes upon the whole title, there ought to be a clear and satisfactory showing to justify a conclusion that the erasure was fraudulent and not in pursuance of the tenns of the contract, as claimed by the defendants.
Mahala E. Newton, the grantee in the deed, was the owner of city property in the city of Mt. Vernon, and James A. Newton, her husband, was a conductor on the Louisville and Nashville railroad. Allen C. Tanner was county clerk, and there were negotiations between him and James A. Newton for an exchange of the land for the city property. The complainant did not see Mrs. Newton and the transaction was with her husband as her agent. The parties were to execute warranty deeds and each one was to furnish the other with an abstract of title. Mrs. Newton and her husband made a conveyance and furnished an abstract, as agreed. The complainant wrote and acknowledged his deed, and testified that when Mr. Newton called at his office at the court house he erased the name of Mr. Newton as grantee and inserted that of Mrs. Newton, and also corrected a mistake he had made in the description of the land and also in the word “Illinois.” The understanding was that the complainant was to take the deed to the recorder’s office, in the same building, and have it recorded. The deed was filed for record by the complainant two days after its date and he paid the fee for recording. Mr. Newton testified that he was running on the railroad and the complainant was to make the deed and have it recorded; that after the deed had been recorded it was shown to him by the complainant and he refused to accept it with any reservation of coal rights; that the complainant said he would take the reservation oE, and the witness then went out on his run on the railroad; that afterward he went back to the complainant’s office for the deed, and the complainant handed it to him, saying that he had erased the reservation; that the complainant took the witness and his wife in the other office to show the record; that the witness had nothing to do with any erasure of the deed or the record but the erasures were made because he refused to take the deed with any reservation, and that in the trade there was not a word said by the complainant about reserving the coal or coal rights. Mrs. Newton testified that the deed was in the same condition the first time she ever saw it as at the time of the trial; that she never made any change in the deed or record or had anything to do with any change; that she had possession of the deed from the time she received it; that the agreement to which she consented was that she and her husband were to give the complainant a warranty deed and an abstract and he was to give them a warranty deed and abstract, and that nothing was ever said about reserving coal, so far as she ever heard. She testified that she received the deed in the complainant’s office when he handed it to her husband, and the memorandum in the recorder’s office shows that it was delivered April 9, 1889, to James A. Newton. Another witness testified that he was present at a conversation between the complainant and Mr. Newton in the court house when Mr. Newton said there was something on the deed that he would not accept,—something about a coal royalty; that the complainant said he would change the deed, and Mr. Newton said when he did he would take it; that Mr. Newton told the complainant that he was making a warranty deed without any strings to it, and that was the only kind of a deed he wanted. This witness, on cross-examination, said that he had told complainant he did not know what the defendants wanted with him; that he did not want to go into detail about it and did not know anything about it, but he did not make any statement out of court contradictory to his testimony. The deed had been cut in two where it was nearly worn through on the edge and had been pasted together again. Mrs. Newton and her husband both testified that this was done by Judge Webb when they went to him to have their wills made; that it was worn through where it was folded and Judge Webb pasted it together in his office. Judge Webb did not remember whether he pasted the parts of the deed together or not but said that he might have done so. The evidence for the defendants was very positive that there was no agreement in the negotiation for the trade that any coal rights should be reserved, and on the part of the complainant there was no evidence that there was such an agreement. The complainant testified that he could not remember that anything was said in the agreement for the exchange about such a reservation and could not tell a single word of the conversation concerning the trade, but that he undoubtedly informed Mr. Newton that he would reserve the coal, and that he would not have put the reservation in the deed unless the coal was to be reserved. There was no testimony of the recorder or anyone who was employed in the recorder’s office at the time of the erasure, and it would be strange if the grantee or her husband had been permitted to make an erasure on the record in the custody of the recorder in the interest of the grantee and against the rights of the grantor, who was county clerk, directly across the hall in the same building. That he was permitted to make the alteration would not be so improbable. There was no other evidence which can be regarded as having any weight in the determination of the question at issue between the parties, and it does not appear to us that the evidence for the complainant was sufficient to sustain the decree. While we will not reverse a decree where the chancellor has heard the witnesses unless it appears to be clearly against the weight of the evidence, we are not able to reach any other conclusion in this case.
The decree is reversed and the cause remanded, with directions to dimiss the bill.
Reversed and remanded, with directions.