The material allegations of the bill are: The recovery in August, 1880, in an action of ejectment by Abiel A. Low and others, complainants’ predecessors in title, of a large body of land including the tract of 194 acres claimed by defendants Abraham Midkiff and Newton Midkiff; the execution on September 15, 1882, of a deed by Low and others, plaintiffs in the action of ejectment, by J. I. Kuhn, their attorney in fact, to Abraham H. Midkiff, Solomon R. Midkiff, and Harriett Adkins, defendants in that action, conveying the land in dispute, with the reservation to the grantors of the minerals and easements necessary for their development; acceptance of the deed by the grantees and their agreement to have it recorded; the loss or destruction of the deed without recording, in some way unknown to complainants (if the deed was lost, the loss from inadvertence, if destroyed, the destruction with the fraudulent intent on the part of the grantees or those claiming under them to remove by destruction the muniment of the complainants’ title to the minerals); complainants’ failure to find the deed after diligent search; preservation by Kuhn of the copy of the deed attached as an exhibit to the bill; recent execution of a lease by S. R. Midkiff and Newton Midkiff for oil and gas purposes; possession of the surface but not of the minerals by A. II. Midkiff, S. R. Midkiff, Harriett Adkins, and those claiming under them since the execution of the deed by Kuhn, attorney in fact; possession by the complainants and their predecessors in title of the minerals and payment of the taxes on the entire land embraced in the recovery of 1880 since 1890, when they began to drill for oil and gas, without any claim of possession or title to the minerals on the land in dispute-by the defendants or their predecessors in title after the execution of the deed by Kuhn, attorney in fact, until the recent discovery of oil and gas in the vicinity; purchase by Newton Midkiff of a portion of the land with notice of the deed of Kuhn.
The relief asked was that the alleged lost deed be established; that the title and possession of the complainants to the minerals and mining rights be quieted; that all deeds and leases under which any of the defendants claim title to the minerals be canceled; that the defendants be enjoined from asserting title to the minerals by lease, conveyance, or any other manner, and from hindering and delaying complainants in the enjoyment and development of their mineral rights.
-“These defendants -further deny that any such deed was ever received or accepted by the said Solomon R. Midkiff, Abraham Midkiff, and the said Har, riett Adkins, and they aver that no such deed within the knowledge of these defendants was ever executed or placed upon the records of Lincoln county, W. Va.”
The District Court overruled the objections to the jurisdiction, and on the testimony made .a decree granting the relief asked by the complainants.
[ 1 ] The jurisdiction of the court of equity cannot be doubted. True, there is authority for the statement that, where nothing more appears than that a claimant to land wishes to.assert title under a lost deed, equity will not aid him to establish it, because he may at once bring his action of ejectment and avail himself of the lost deed by proving its execution and contents as effectually at law as in equity. Whitfield v. Taussat, 1 Ves. 392, 1 Story, Eq. 84, With the correctness of this view we are not concerned, for the bill sets out other grounds for equitable relief in alleging that by -the Kuhn deed the surface and minerals were severed, that since its execution the defendants have not been in possession of the minerals, that the deed -was left in the custody of the grantees and accepted by them, that they have either inadvertently lost it or fraudulently destroyed it, that it has not been recorded, and that in contravention of it defendants have recently asserted title to the minerals. The deed not being recorded, there is danger to the complainants of a conveyance by the defendants to a bona fide purchaser without notice of the severance of tire surface from the minerals and of the complainants’ ownership of the minerals, relying on the defendants’ occupancy of the surface as conferring title by adverse possession of both surface and minerals. Moreover, the market value of complainants’ property is affected by their inability to show by a record of the Kuhn deed that defendants’ occupancy of the surface was not adverse holding of the minerals.
Equity will aid a claimant to land in establishing a deed upon which his title depends, lost or destroyed by an adverse claimant, to the end that he may by preserving and recording protect himself against a bona fide purchaser for value and that he may be able to show a good marketable title. The right to invoke the protection of the court of equity under such circumstances is established by authority from which there is no dissent. Simmons Co. v. Doran, 142 U. S. 449, 12 Sup. Ct. 239, 35 L. Ed. 1063; Sharon v. Tucker, 144 U. S. 533, 12 Sup. Ct. 720, 36 L. Ed. 532; Cartright v. Cartright, 70 W. Va. 507, 74 S. E. 655, Ann. Cas. 1914A, 578; 17 R. C. L. 1170.
[2] On the merits it is first contended by appellants that the suit must fail and the judgment must be reversed because the deed executed by- Kuhn, under power of attorney, wnicli complainants seek to es
[3, 4] The next defense is that the deed conveying the surface to the Midkiffs and reserving the mineral rights was never accepted. At the time the deed was made, the grantees had been adjudged to have no interest whatever in the land. Since the deed from the owners conferred benefits on them and was found in the possession of Abraham Midkiff, one of the grantees, there is strong presumption of its acceptance. Guggenheimer v. Lockridge, 39 W. Va. 457, 19 S. E. 874; 12 R. C. L. 999-1000.
This presumption is re-enforced by conduct of the grantees proving its acceptance. Abraham Midkiff testified that he could not: remember whether Solomon and his sister, Harriett Adkins, the other grantees named in the deed, were present when the deed was given to him or not; but he testified that he had talked to Solomon about it. It was retained and carefully preserved by Solomon and Abraham Midkiff, two of the grantees. Abraham, the grantee who originally received the deed, afterwards acquired the interests of the others. After that acquisition lie was still presumptively, and under the proof, holding under the deed when he sold to his son, Newton, in 1899. The evidence shows beyond doubt that the existence and terms of the deed were well known and much discussed in the entire family, and that if. was accepted and carefully preserved as a muniment of title.
The only evidence tending to show that the deed was not accepted is that of Abraham Midkiff that it was brought to him by Kuhn as a proposition to compromise the judgment in ejectment and was received by him.with the understanding that if it was accepted as a compromise he was to return it to Kuhn; that he concluded not to accept it, and said nothing more to Kuhn about the matter. The statement that the grantees were to return to the grantors the deed, which was their only protection, if accepted, even if it were not disproved by their conduct, is intrinsically improbable, if not incredible. The danger of its acceptance by tlie court is emphasized by the fact that Kuhn, the attorney in fact who made the deed, is dead. When its improbability is considered in connection with the other circumstances showing acceptance of the deed, the defendant’s case appears to have no substantial foundation. If a grantee who has no title to land receives a deed of conveyance from the true owners at the time it was made, carefully preserves it, and produces it from his possession, be allowed to defeat it by testifying that he never accepted it and that he has been holding adversely to it, the result would be unfortunate msecurity of land titles.
“In liis position lie could not have asserted adverse possession after the decree against him, without bringing express notice to Morton or Iris vendees that he was claiming adversely. Without such notice the length of time intervening between the decree and the institution of the present suit would give him no better right than he previously possessed, and his holding possession would, under the authorities, be treated as in subordination to the title of the real owner. This is a well-established rule.”
[6] Equally untenable is the position that Newton Midkiff was a purchaser for value without notice. It is true he denied that he had any notice of the deed until the commencement of this suit; but Abraham Midkiff, his father, a witness introduced .by him, testified that he talked with him about the deed at the time he purchased. Thus he was put upon notice of its contents.
[7] Nor is Newton Midkiff in a position to claim the minerals by adverse possession. At the time he purchased from Solomon, the minerals and the surface had been severed by a conveyance of the true owners of the land with a reservation of the minerals. He bought with notice of this severance, and therefore could not claim the minerals by adverse possession of the surface. Adverse possession of the mineralsvcould have been started only by actual working of them or some other act of dominion over them showing assertion of title and use in accordance therewith. Wallace v. Elm Grove Coal Co., 58 W. Va. 449, 52 S. E. 485, 6 Ann. Cas. 140; Plant v. Humphries, 66 W. Va. 88, 66 S. E. 94, 26 L. R. A. (N. S.) 558; Kiser v. McLean, 67 W. Va. 294, 67 S. E. 725, 140 Am. St. Rep. 948; Steinman v. Jessee, 108 Va. 567, 62 S. E. 275.
The decree of the District Court is supported by the clear preponderance of the evidence.
Affirmed.
null.
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