(105 S.E.)

and filed a special plea, setting up, in resistance of further prosecution, the pendency of a suit brought by her in the circuit court of Taylor county, under the provisions of chapter 86 of the Code, for subjection of the real estate of the testator to payment of all of his debts, on the ground of the deficiency of personal assets, and for settlement of his estate. Her demurrer and motion to dismiss were overruled, and her special plea held to be insufficient and rejected.

The demurrer to the amended bill assails it upon some special grounds not applicable to the motion and plea, but maintenance and sufficiency of all of them are urged upon one common ground, namely, that the death of the debtor, pending the judgment lien suits, vested right in the executrix to have the causes stayed for a period of six months, to enable her to determine the condition of the estate and elect whether she would institute a suit to charge payment of the indebtedness of the testator upon his real estate and to settle his estate, and, after the institution of such a suit, to have them dismissed or proceedings therein terminated. The motion to dismiss, which was reduced to writing, and the plea. are in all material respects identical. As the grounds of both are the same, it is unnecessary to determine whether the motion can be treated as a plea and considered upon a certificate. The plea can be examined and disposition of the ruling upon it will constitute sufficient guidance to the trial court.

other becomes operative only after the death of the debtor. In case of his death while owing judgments and leaving real estate and insufficient personal property to pay all of his debts, both statutes operate and bring their two subjects into a necessary and close relation, but it does not follow that one of them shall displace the other. Nowhere does either of them or any other statute express legislative intent to effect such a displacement. It must arise if at all, by implication, and it cannot so arise for at least three reasons. The first is that the implication, if any, is not a necessary one in any sense; the second, that a mere implication can never prevail over an express provision; and the third, that there is a presumption against legislative intent in the enactment of one law to innovate upon, limit or alter another.

[7] A necessary implication within the meaning of the law is one that is so strong in its probability that the contrary thereof cannot reasonably be supposed. Lewis' Suth. Stat. Con. (2d Ed.) § 503. As has been stated, the two statutes in question have different subjects. One makes the real estate of a decedent liable for his general debts, unsecured debts, in the case of a deficiency of personal assets. The other makes a judgment a lien on the debtor's real estate, and provides for enforcement thereof. If, while a suit to enforce a judgment lien is pending the debtor dies and the condition of his estate is such that his real estate becomes assets for payment of his unsecured debts, the circumstance introduces new elements or factors into the pending suit. It must be revived against the personal representative and heirs or devisees, of course, and the personal estate has to be applied to payment of the debts, secured as well as unsecured, in relief of the real estate. Schilb v. Moon, 65 W. Va. 664, 64 S. E. 739; Kilbreth v. Root's Adm'r, 33 W. Va. 600, 11 S. E. 21; Hart v. Hart, 31 W. Va. 688, 8 S. E. 562; Boggs v. McCoy, 15 W. Va. 344; Laidley v. Kline, 8 W. Va. 218. These cases all atfirm the legal

[1, 2, 4] The position assumed by the plea and also taken in the demurrer is based upon nothing more substantial than mere inferences from statutory provisions and construction put upon them by this court. There is no express statutory inhibition of the prosecution of a judgment lien suit, after the death of the judgment debtor, nor any statute expressly staying prosecution thereof. Though as a matter of mere logic it might consistently be said that discontinuance of a pending suit in which in case of death of the debtor his estate must be judicially set-possibility and propriety of effectuation of tled is consistent with an allowance to the personal representative of an exclusive period of six months in which to institute a suit having for its primary purpose such settle ment, when the personal estate is insufficient to pay the debts, and inference of legislative intent to work such a discontinuance does not necessarily arise from this fact. Suits to enforce judgment liens are instituted under section 7 of chapter 139 of the Code. The privilege allowed the personal representative is created by section 7 of chapter 86 of the Code. These statutes deal with separate and distinct subjectsjudgment liens and subjection of the real estate of decedents to payment of their debts, under certain circumstances. The judgment lien statute affects the living debtor

the settlement of the estate of the decedent in the pending judgment lien suit. Of course, the death of the debtor works a very important change in the legal condition of his estate, but it does not materially affect the status of the lien creditor. The real estate goes to the heir or devisee subject to all of the debts, whether secured or not, and it becomes the duty of the personal representative to apply the personal estate to payment of the debts pro tanto and pro rata. But, as the heir or devisee and the personal representative can be made parties to the pending suit and their rights there fully protected and the purposes of chapter 86 fully effectuated, there is no legal necessity for dismissal or discontinuance of the pending suit. There is nothing in the situation or

ability that the Legislature intended such a result or procedure.

The allowance of a six-month period in which the personal representative has the exclusive right under ordinary circumstances, to bring the suit authorized by section 7 of chapter 86 of the Code, is not given any express connection with the subject of judgment liens or judgment lien debts. The whole chapter deals with general debts, and makes provision for payment thereof. Hence, it does not necessarily confer upon the personal representative any right or power respecting judgment liens. Of course, he must pay the lien debts out of the personal estate, if it is sufficient. The heir or devisee may require him to do so. But the statute under which he may sue pertains to general debts, not judgment lien debts for which provision is made by chapter 139 of the Code. The two subjects are wholly different, although related. The vesting of the right conferred by section 7 of chapter 86 does not therefore strongly indicate purpose to limit or take away the right of action conferred by chapter 139. Besides section 11 of chapter 86 expressly provides that the chapter shall not affect any lien by judgment or otherwise, acquired in the lifetime of the decedent.

That an implication cannot prevail over a clear and positive express provision, even when a single statute is under consideration, is well and firmly settled. Kelley & Moyers v. Bowman, 68 W. Va. 49, 69 S. E. 456; Wellsburg, etc., R. Co. v. Panhandle Traction Co., 56 W. Va. 18, 48 S. E. 746; Bell's Adm'r v. Humphrey, 8 W. Va. 1. Here we have an effort to raise an implication out of one statute against the express provisions of an entirely different statute having a separate and distinct subject-matter.

fore the rule of construction here referred to obviously applies.

The court in which the judgment lien suits are pending had acquired jurisdiction of the judgments and the real estate on which they are liens long before the right of the executrix vested and before she attempted by her suit to bring said judgments and lands within the jurisdiction of the circuit court of Taylor county. When a subject of litigation has come within the jurisdiction of one court, it cannot be withdrawn by another having concurrent jurisdiction. State v. Fredlock, 52 W. Va. 232, 43 S. E. 153, 94 Am. St. Rep. 932; Prewett v. Bank, 66 W. Va. 184, 66 S. E. 231, 135 Am. St. Rep. 1019; French v. Hay, 22 Wall. 236, 22 L. Ed. 799; Lewis v. Darling, 16 How. 1, 14 L. Ed. 819. It cannot be assumed that the Legislature was ignorant of this all pervading and fundamental principle. Presumptively, its members were familiar with it, and, not having provided otherwise, they must be taken to have intended it to operate in proceedings instituted under these two statutes.

Upon these principles and conclusions we are of the opinion that the circuit court of Webster county properly rejected the special plea to its jurisdiction and overruled the demurrer to the amended bill in so far as it is based upon alleged lack of jurisdiction.

[5, 6] The other ground of demurrer to the amended bill is unsubstantial and not well taken. That bill revives the suit of the First National Bank of Webster Springs against John T. McGraw and others, one of the three consolidated suits pending in the circuit court of Webster county. In it, parties to that suit who have not heretofore been formal plaintiffs, have united with the bank as plaintiffs. Being lien creditors, they were [3] That there is a presumption against in reality plaintiffs, if formally defendants. legislative intent in the enactment of one It also makes all of the other parties to all of statute to encroach upon another, having a the three suits, as well as additional persons different subject-matter, further than is and corporations, parties defendant. For absolutely necessary to the accomplishment these reasons and the altered status of the of the purpose of the act, has an equally McGraw estate, it is characterized in arfirm foundation in our decisions. It goes gument as a new and original bill. No reaeven beyond inhibition of implications and son is perceived why a defendant in equity actually limits and restrains general and in- whose interest requires prosecution of the definite terms importing intention to do so. suit may not become a plaintiff. Such a Reeves v. Ross, 62 W. Va. 7, 57 S. E. 284; suit as this is for the benefit of all judgment Coal & Coke Ry. Co. v. Conley & Avis, 67 creditors of the debtor. As defendants, W. Va. 129, 67 S. E. 613. The judgment lien these creditors could insist upon the enforcestatute works an extension of the judgment of their liens. In equity, formality is ment creditor's common-law rights and rem- unimportant. It is unnecessary and might edies. Arnold and Ruffner v. Casner, 22 be improper to enter upon an inquiry as to W. Va. 444, in which the subject was elab- the propriety of making all of the parties orately reviewed by Judge Snyder. It is an to the other two consolidated suits parties ancient system of law revised, modified, in to this one by way of amendment. No eviimportant respects and extended by the dence of their objection to such procedure statute. The other statute has an entirely is disclosed here. Whether it was proper to different subject, and also works radical make them parties or not, the new arrangealterations of the common law. They are ment as to parties manifestly does not

(105 S.E.)

3. Mines and minerals 55(4)—Fee-simple title held to vest regardless of a reservation of minerals.

poses and objects remain the same as they | ed intention of the grantor and to representawere originally. Its subjects, the judgments tions made by him to various purchasers. and lands, are the same, and the relief sought is identical. An impediment to full accomplishment of its object has occurred by reason of the death of the debtor, which makes it necessary to bring in other parties and subjects, but that does not alter its character. It still seeks enforcement of the judgment liens, and the additional steps required are mere incidents of the prosecution of the original purposes.

An order will be entered, affirming these conclusions and certifying them to the court

below.

(87 W. Va. 699)

MOORE et al. v. HENDERSON et al. (No. 4163.)

tate the grantee takes, as to himself and heirs Where a deed for land designates the esforever, "reserving, however, from the operation of this deed all minerals, mineral interest, oils, natural gas, etc., with all right of way rights and privileges, as reserved by the land company," and, as the parties thereto and interested therein agree, there never was at any time such a company capable of holding or that held title to such minerals or an interest therein, by deed or otherwise, the deed first mentioned, when properly construed, vests a fee-simple title to the land and minerals regardless of the reservation therein contained, when such was the expressed intention of the grantor as to its disposition in case there had been no prior exception or conveyance of the

(Supreme Court of Appeals of West Virginia. minerals to cause him embarrassment and pos

Feb. 15, 1921.)

(Syllabus by the Court.)

1. Mines and minerals 55(2)-To construe reservation of minerals situation of parties and their interpretation must be considered.

In order to determine the true meaning, purpose, and effect of a reservation in a deed, purporting to except or reserve the minerals underlying the tract conveyed, but rendered uncertain and ambiguous by the addition of a clause, "as reserved by the land company," it is necessary to construe the reservation in the light of the situation of the parties at the time the deed was executed, and in accordance with the interpretation and construction which they have placed upon it.

2. Mines and minerals 55(8) In suit to cancel deed as cloud on title to minerals, held that reservation of minerals intended to protect grantor against unknown prior grantor must fail with false premise on which it was evidently based.

sible liability on his deed, and purchasers believing and relying upon such representations purchase the minerals for a valuable consideration.

4. Estoppel

71-One disclaiming title on inquiry of purchaser may not assert title against purchaser.

If a person claiming an interest in land, based upon an ambiguous and indefinite clause in a deed, denies his title to or interest in it, in response to the inquiry of a prospective purchaser of such title or interest, and thereby knowingly misleads him into dealing with the estate as if he were not interested, such person generally will be postponed to the party misled and compelled to make his representation specifically good.

5. Estoppel 71-Rule that claimant of interest will be postponed through misleading prospective purchaser must be carefully applied.

Such rule, however, being opposed to the letter and spirit of the statute of frauds, should be carefully and sparingly applied, and only upon the disclosure of clear and satisfactory grounds of justice and equity, such as fraud or other similar misconduct.

6. Estoppel 71-Frauds, statute of 63 (1)-Oral disclaimer not sufficient to divest or pass title; claimant's statements as to understanding of uncertain clause in deed may be relied upon by good-faith purchaser.

Where in such a case the record is replete with the testimony of many witnesses to the effect that the purpose of the grantor in excepting the minerals, as disclosed by numerous statements made by him to them, was not to retain the minerals for his own use, but merely to reserve or except them on behalf of an unknown prior grantor, a land company, that might have acquired title to them or excepted or conveyed them and thus deprived him of title thereto, creating danger of liability on his deed unless he excepted them from the conveyance, and that it was his intention to vest in his grantee title to the minerals and surface if no prior grantor had reserved or conveyed them, and all his subsequent acts with regard to the tract conveyed conform to and support this construction, and there is nothing in the record to show that any land company, as predecessor in title, ever made such reservation or, indeed, ever existed, the attempt to reserve the minerals must fail with the false premise upon which it was based, especially when such holding will conform to the express- to be true.

Mere oral disclaimer, without more, generally is not sufficient to divest or pass title. But, when the right disclaimed by a grantor is based upon an ambiguous and uncertain clause in a deed, statements by him as to his intention and understanding with regard to its meaning and purpose are entitled to peculiar weight and respect by a prospective purchaser, and constitute such constructive, if not actual, fraud as a court of equity will not sanction or tolerate as against such purchaser who in good faith acts upon the representations, believing them

7. Abatement and revival
under superior title may cancel cloud despite
pendency of ejectment action.

8(5)—Possessor | derstand the ambiguous clause purporting to reserve the minerals, in effect vested in Moore the minerals as well as the surface of the tract, thereby giving to him and the other plaintiffs in privity with him the right to prosecute their search for oil and gas and full right to appropriate them to their exclusive use and benefit, when produced. fendants as urgently insist that the title to the minerals remained in B. F. McGhee by virtue of the reddendum, and vested in Henderson after the McGhee deed to him.

One in actual possession of land under superior title may, in equity, maintain a suit to cancel a deed as an alleged cloud upon his title, despite the pendency of an action of ejectment instituted by the adversary party.

Appeal from Circuit Court, Lincoln County. Suit by J. W. Moore and others against C. J. Henderson and others. Decree for plaintiffs, and defendant named appeals. Affirmed.

De

[1] Apparently the words "as reserved by the land company" are to be interpreted and construed in connection with all that precedes in that clause, thereby rendering vague and ambiguous the exact nature and effect of the

Jacob D. Smith, of Hamlin, Pendleton L. Williams, of Huntington, and Wilkinson & Wilkinson, of Hamlin, for appellant. Simms & Staker, of Huntington, and E. E. mineral rights reserved as well as the priviYoung, of Hamlin, for appellees.

leges and rights of way. The phrase necessarily implies a prior ownership of the title to the entire 115-acre tract or some part of it, and that the owner was a land corporation or partnership.

On the theory of a severance of the surface and minerals underlying the tract, effected by the McGhee deed to Moore, and that the failure of the grantors to list the minerals for taxation and cause them to be assessed with taxes operated to forfeit the minerals in favor of the state, a suit was instituted in Lincoln county by the commissioner of school lands to obtain authority to sell them. In that suit the Huntington Development & Gas Company filed an answer to the bill and therein claimed to be the owner of the minerals underlying each of the two parcels comprising the 115 acres. Whether or not the question of ownership was determin.

LYNCH, J. The twofold purpose sought to be consummated by the plaintiffs in this suit, and granted by the decree reviewed for error, is the cancellation of a deed dated June 4, 1917, made by B. F. McGhee and wife, Mildred C., to C. J. Henderson, the husband of their daughter, conveying to him all their right, title, and interest in and to the minerals underlying a tract of 115 acres of land in Lincoln county, as a cloud upon the titles of the plaintiff Moore, under a deed of September 27, 1900, by the same grantors for the surface of the same tract and the minerals under it, according to his construction of that instrument, and of plaintiff Young, under a deed of Moore and wife for an undivided onehalf interest in the minerals, bearing the date of December 11, 1916, and an injunction to inhibit McGhee and Henderson from inter-ed in the proceeding does not appear; the fering with the possession of the plaintiffs Moore and Young under the grants to them, and the prosecution of oil and gas developments on the land by the Sovereign Gas Company under a lease executed to it by Moore and Young December, 1916.

The stability of the decree depends upon the proper construction of what on its face purports to be a reservation of the minerals in the deed of conveyance from McGhee and wife to Moore. It grants unto him the 115 acres, "to have and to hold" the land unto himself and his heirs forever, "reserving, however, from the operation of this deed all minerals, mineral interest, oils, natural gas, etc., with all right of way rights and privileges, as reserved by the land company." The validity and effect of this clause of the reddendum, in connection with the other facts and circumstances involved in the controversy, is the fundamental issue between the parties. Plaintiffs insist that the deed, considered in the light of the circumstances surrounding the parties at the time of its execution and the interpretation then and since placed upon it by them, resort to which is rendered necessary in order properly to un

record not being produced. But for some reason not disclosed the suit was dismissed, probably on the theory that payment of taxes by Moore during the 18 years of his ownership prevented a forfeiture and inured to the benefit of the owner of the minerals, or it may be that the court held invalid and unfounded the claim asserted by the Huntington Development & Gas Company, or both. However that may be, it abandoned and has not in this suit reasserted the claim of title so relied on, if any it had. Nor is there any intimation or suggestion of the identity or existence of any other land company, which under any condition or circumstance is entitled to take and hold the minerals under the provision in question. No such person firm, or corporation trading as a land company appears in the chain of title to any part of or interest in the subject-matter of that clause in the deed, as counsel admit-nothing whatever tending in the least degree to establish an outstanding ownership of the minerals or to identify the owner whose rights were intended to be secured by the reservation or exception. With this admis sion, after diligent search of the public rec

(105 S.E.)

ords of the county in order to ascertain the to his own admissions on numerous occasions intended beneficiary, it is not unreasonable is that it was his intention and wish that to assume its nonexistence.