dissenting:
By the terms of the “contract” and by virtue of section 6 of the Mines Act (Ill. Rev. Stat., ch. 94, par. 6), Castle became a cotenant with Hulcher. The preamble to the “contract” provided that Johnson, the owner, “leased and let” and “grant[ed] exclusively unto the said lessees, their heirs and assigns.” Section 6 provides that:
“Any mining right, or the right to dig for or obtain * * * or other mineral from land, may be conveyed by deed or lease, which may be acknowledged and recorded in the same manner and with like effect as deeds and leases of real estate.”
The “contract” in question specifically refers to the extraction of limestone in sections: 1, 3, 5, 6, 8, and 13. And limestone is technically a mineral according to Kinder v. La Salle County Coal Co. (1923), 310 Ill. 126, 141 N.E. 537. In that case the Court declined to include limestone within the clause “all minerals of every description” because such an interpretation would have destroyed the grantor’s reservation of rights to the surface for agriculture purposes. However, the court did concede that limestone was technically classified a mineral and without the extenuating circumstances present in Kinder, supra, there is little reason not to hold that the “contract” involved in this case conveyed a mineral lease within the terms of section 6.
Furthermore, it should be noted that the appellant in his complaint stated that this “contract,” conveyance, was recorded on the land records of Montgomery County. The appellee in his answer admitted this recordation. All the evidence is to the effect that the parties treated the instrument as one conveying an interest in realty, until Hulcher sought to treat it otherwise when it benefited him to do so.
Where two or more persons take as tenants in common (which would be presumed under Ill. Rev. Stat., ch. 76, par. 1) under an instrument which is silent in regard to their respective shares, there is a presumption that their shares are equal. The presumption that tenants in common hold equal shares where the instrument under which they claim is silent in that regard is not conclusive, as between the parties, and. so it is subject to rebuttal on sufficient proof. However, as stated in Keuper v. Unknown Heirs of Mette, 239 Ill. 586, 88 N.E. 218, the burden of establishing that the tenants in common were not intended to share equally is upon the person attempting to overcome the presumption of equality, in this case Hulcher.
Hulcher would have us believe that not only were he and Castle to share disproportionately, but that Castle was not to take any fixed share in the lease. All that Castle, according to Hulcher s unsubstantiated, self-serving testimony, was to take, was 2 cents per ton; this is not a respective share in the lease; rather, it is a royalty. Hulcher offers no explanation of why Castle was made either a lessee or a grantee and 18 months after the instrument was executed, Hulcher acknowledged Castle as an “owner.” When or by what act or by operation of what law he was divested is not disclosed by this record. Hulcher was represented by his attorney at the signing of the contract and while he may not have drafted the document it was modified at his suggestion to accommodate him. There is no evidence that Castle participated in any way in the preparation of the instrument. It is my opinion that this document should be construed against Hulcher in any case of ambiguity, and it is he who contends it is ambiguous.
Even ignoring these presumptions against Hulcher, I find insufficient proof that Hulcher and Castle were to share unequally. While Hulcher made all the payments to Johnson this does not infer that Castle would not have been liable had Hulcher not paid — the agreement between the parties made Hulcher the party to whom Johnson would look for his royalty. Section 3 of the agreement expressly provides that Hulcher and Castle were jointly and severally liable for the royalties. It is Hulcher s testimony, not Castle’s, which is inconsistent. Castle never admitted any 2-cent deals and specifically denies any such deals; his testimony was consistent with the interest he claimed.
Hulcher’s testimony is further weakened by a number of factors. First, the Kessen agreement is signed by Castle and Hulcher as “owners.” Secondly, Hulcher testified to two separate 2-cent deals. The first deal allegedly gave Castle 2 cents a ton as a brokerage fee and the second allegedly gave Castle 2 cents “for selling and collecting rock.” Thirdly, Hulcher terminated Castle’s “two cent per ton levy when Castle left the quarry.” This indicates that the 2-cent levy was in return for services rendered and not incident to ownership. And lastly, Hulcher sent no written notice of assignment as required by section 12 of the “contract.” This was admitted by Hulcher who did not act “in accordance with paragraph 12 of the lease” which recognized that Castle had an interest, which he would assign upon a proper written request. That section does not set out under what terms Castle would assign upon Hulcher s written request. It gave Hulcher no authority to assign Castle’s interest. Appellee Hulcher states, “Under the terms of the lease Hulcher owned what he owned, and if Castle owned anything Hulcher’s acts could not alienate or prejudice Castle’s interest,” citing Fyffe v. Fyffe, 292 Ill.App. 539, 11 N.E.2d 857. Accepting Hulcher’s own statement, Hulcher could not divest Castle by means of assignment under section 12. Therefore, if a 2-cent deal existed it continued even after Hulcher formed his “corporation” and assigned his interest in the quarry to it. If it is felt that there is sufficient evidence to establish the 2-cent deal then Castle is entitled to an accounting for 2 cents a ton from the date of the “contract” until the present, and he is entitled to an additional 2 cents for “selling and collecting rock” pursuant to Hulcher’s self-serving, unsubstantiated testimony.
In summary: Hulcher has to overcome the presumption that he and Castle were to take equally; he has to establish that the contract meant other than what it said; and he must establish the 2-cent deal was Castle’s only interest. Even under ordinary standards of proof, Hulcher failed to meet his burden. And because the standard of proof is “clear and convincing evidence” the quantum of proof required is that which leaves no reasonable doubt in the mind of the trier of fact of the truth of the fact in issue. In re Estate of Weaver (1966), 75 Ill.App.2d 227, 220 N.E.2d 231.
Hulcher has, as a matter of law, failed to meet this burden and the finding of the trial court should be reversed as not being supported by the evidence. Even if the majority consider otherwise, the least that should be done is to remand for an accounting on Hulcher’s theories that plaintiff agreed to 2 cents a ton in the nature of a royalty and the additional 2 cents a ton for “selling and collecting,” and including both parties’ share of the 10-cent-per-ton royalty.