
    
      Vardry McBee v. Andrew Loftis and J. W. Hampton.
    
    An instrument of writing which does not, and was not intended to, grant the soil in fee, but the use only, for the purpose of mining, is not a deed for the conveyance of the land, within the Act of 1795, requiring two witnesses.
    The grantee of a right of mining, who, by the terms of the deed, is bound to surrender the right at the end of a year, if he finds it unprofitable, and who, at the end of the year, indicates no intention to do so, cannot have his right limited to one year.
    Where, by the terms of a grant of the right of mining, the grantee is entitled to “work free of expense,” &c., and is, in no other respect, restricted, he may conduct the work in any manner he thinks proper, either by himself, his servants, agents, or assignees.
    
    The Statute of Limitations, and the rules as to presumptions from lapse of time, are founded on the same principle, and neither can attach until there is some wrong done, or right withheld; because, until then, the party injured had no cause of complaint, and no right to sue.
    The plea of purchaser for valuable consideration, without notice, must aver the consideration and actual payment of it, which payment must be proved — the averment of a consideration secured to be paid, is not sufficient.
    The right of mining can only be acquired by deed, and is not forfeited by a nonuser of less than twenty years.
    
      Before Johnson, Ch. at Greenville, June, 1845.
    The case is embodied in the following Circuit decree:
    Johnson, Ch. Lemuel Loftis, the father of the defendant, Andrew Loftis, being, ás it is admitted, seized in fee of the tract' of land described in the pleadings, on the 23d of November, 1830, entered into a penal bond, conditioned to convey the said land to John Mosteller and Jesse Green. It seems to be conceded, too, that one J. H. Randolph, by some means, acquired the interest which Mosteller and Green took in the land, under the said bond, but at what time does not appear; and on 13th June, 1834, the said J. H. Randolph and Lemuel Loftis entered into a mutual agreement, by which the said Loftis agreed to buy of the said Randolph, the said tract of land, on certain terms, therein specified ; and it is therein, amongst other things, provided that “ the said Randolph, on his part, retains the privilege of working the land the present year, for a crop — the mine part, of gold, till he is satisfied; which, should he find not worth working, he will give up said claim the present year; but if it will do, he is to work it free of expense, having any necessary use of water and timber to do so.” “ The said Randolph-must have house room,” &c. On the — day of August, 1835, the said Randolph, in consideration of one hundred dollars, conveyed to the complainant, by deed, all the mining privileges, with the use of water and timber, reserved to him in his- agreement with the said Lemuel Loftis, before set forth; and this constitutes the complainant’s claim to the relief prayed for in the bill.
    But on the 26th February, 1836, Lemuel Loftis gave and conveyed the land to defendant, Andrew Loftis, by deed, without reserving any of the rights or privileges recorded in his agreement with the said J. H. Randolph, and on the 21st December, 1844, the said Andrew Loftis, by deed, conveyed the land to his co-defendant, J. W. Hampton, in fee, without condition or reservation.
    The bill charges, that the defendant, Hampton, had, for some months before the filing of the bill, been mining for gold on the land, with a large number of hands, <fec.; prays an injunction to restrain him from further mining, and for a discovery of the amount of gold found and collected.
    The defendants have both answered, and neither of them controverted the facts before stated. The defence relied on, in the answer of the defendant, Andrew Loftis, is, 1st. That the complainant’s claim is barred by the Statute of Limitations. 2d. That the reservation in the agreement between Lemuel Loftis and J. H. Randolph, conferred on the latter only the right of mining for one year. 3d. That complainant’s long acquiescence in the rights of this defendant, and permitting him to sell the land and warrant it, operated as a forfeiture of any interest he had. The same grounds are relied on in the answer of the defendant, Hampton ; and on the argument, it was further insisted, 1st. That the rights of J. H. Randolph, under his agreement, were personal, and not assignable. 2d. That that agreement was void, as there was only one witness to it. 3d. That the legal estate being in defendant, Andrew Loftis, and Hampton having purchased for valuable consideration, without notice of complainant’s claim, will be protected. 4th. That complainant’s rights are forfeited by non-user.
    It appears from the evidence, that Isaac. Randolph, the brother of J. H. Randolph, worked the mine a few months, in the latter part of the year 1834, or the beginning of 1835, with his consent or under his authority; and that in one of those years, the complainant, with a view to test the propriety of purchasing Randolph’s interest, worked the mine for a short period. Lemuel Loftis lived within a mile and a half of the place, and was occasionally at the mine during the time, and made no objection to it. The defendant, Andrew Loftis, lived with him at the time. On the 14th August, 1835, J. H. Randolph gave written notice to Lemuel Loftis, that he had tried the mine, and found it worth working, and therefore intended to work it, or have it done. Although he was not able to resume the work when his brother worked it, he should have it worked, or sell the privilege to some one else. In 1838, the complainant, with some hands, worked at the mine, for six or seven weeks, and was obliged to discontinue, on account of the scarcity óf water. Defendant,' Andrew Loftis, was frequently there during the time, and put complainant’s agents in possession of one of the*houses. He made no objection to the working, but said he expected complainant had or would give him up the land to plant corn on. The defendant, J. W. Hampton, commenced to work the mine last spring.
    The defence, although thus diversified in the pleadings and the argument, may be resolved by a few general propositions, which strike me as of easy solution. They refer, 1st. To the form and legal effect of the agreement between Lemuel Loftis and J. H, Randolph, of the 13th June, 1834.
    The objection as to the form, applies exclusively to its not having more than one witness. 1- have not been able to appreciate the force of this objection. The Statute of Frauds only requires that contracts concerning lands should be in writing, and signed by the party to be charged. I suppose it has its foundation in the requisitions of the Act of 1795, which prescribes the form of deeds for lands, which are intended to convey the fee, and provides, that they shall have two subscribing witnesses. Regarding it as a grant from Lemuel Loftis, of the rights which are in terms, and, as I think, in legal effect, reserved to Randolph, it does not, and was not intended to, grant the soil in fee, but the use, for the purpose of mining for gold, and is not a deed for the conveyance of land, within the Act of 1795.
    But on referring to the contract, which is sealed by the parties, it will be found that it assumes that the fee was in Randolph. It begins thus: “This instrument witnesseth, that Lemuel Loftis, of one part, buys of J. H, Randolph a certain tract of land adjoining him, for which he pays in the following way:” “And the said J. H. Randolph, on his part, retains the privilege of working the land the present year, for a crop — the mine part of gold, till he is satisfied; which, should he find not worth working, he will give up said claim the present year; but if it will do, he is to work it free of expense, having any necessary use of water and timber;” and it is not, therefore, a contract by which Lemuel Loftis grants to Randolph the privileges of'mining, but by which he buys the land, the fee, of Randolph — a concession that the fee was in Randolph; and having been made with a full knowledge of all the circumstances, Lemuel Loftis would, at law, be concluded, and I think in this court also. He was bound by the bond to make titles to Randolph, and, for the purpose of attaining justice, this Court will presume, in many cases, that done, which the party ought to have done.
    Under this head, the inquiry arises, whether the right of Randolph to mine for gold, was, by the terms of the contract, limited to a year, or not; and whether the contract is regarded as a grant or a reservation of the right, is immaterial to this question, as, in either case, it must receive the same interpretation. That it was not intended to he limited to a year, is -too plain to admit of any doubt. The agreement expressly promises that Randolph should retain the privilege of working “ the mine part of gold, till he is satisfied; which, should he not find worth working, he will give up said claim the present year: but if it will do, he is to work it free of expense, having any necessary use of water and timber,” &c., indicating, as clearly as language can do, the intention that Randolph should have the year to test the value of the mine, and that if, in his judgment, it was not found worth working, he would “give it up” (surrender it,) to Lemuel Loftis; and if, in his judgment, he found “it will do” (be worth working,) he should be at liberty to work it free of expense, without limitation of time. Now, his election to continue to work the mine, was not, by the terms of the contract, to be indicated by any act or declaration on his part; but his intention not to do it, was to be indicated by his giving it up, (surrendering it,) to Lemuel Loftis.
    I do not understand it, however, as requiring a formal surrender, or positive declaration that he would no longer work the mine. Any act indicating his intention to do so, would be sufficient — as, if he had abandoned it, without intending to return to it; but there is no evidence of any act or declaration, on the part of Randolph, indicating an intention to abandon the mine. He worked it for several months, in the latter part of 1834, or the beginning of 1835, through the agency of his brother, Isaac Randolph; and in August, 1835, he gave Lemuel Loftis explicit notice, that he did not intend to abandon it; and again, the complainant worked, in 1838, for six or seven weeks, under the authority of Randolph. Both Lemuel Loftis and the defendant, Andrew Loftis, knew that he had not abandoned his rights, and that they conceded his privilege to exercise them, is clear, from the fact that they knew that he exercised them, and opposed no objection to it.
    
      Under this general head, falls also the inquiry, whether the rights and privileges of Randolph were assignable.
    It is too plain to admit of a doubt, that the right of mining is a subject of grant, and may be transferred or assigned. It is said to be a right which lies in grant, and cannot be transferred without deed. See Black. Com. 22, No. 1; Chrest. Ed. And I do not understand that this defence is put upon that ground, but that by the terms of the agreement between Randolph and Lemuel Loftis, the right to mine is restricted to Randolph personally. The terms used are, “he is.to work free of expense,” &c\, and I apprehend where, as in this case, the right of the whole, and the enjoyment, are unrestricted by the terms of the grant, or more appropriately, by the reservation, the grantee may use the thing in any manner he thinks fit — either by himself, his servants, agents, or assignees. A tenant of the freehold may underlet one entitled to all the wood growing on a defined piece of ground; may transfer that right to another; because the exercise of it by another does no wrong to the owner of the soil — and so of the right of mining.
    The second general proposition which arises out of the case, is as to the effect of time, as applicable to the Statute of Limitations, and the lapse of time upon the right of the complainant. The Statute furnishes an arbitrary but wise rule, and was intended to protect persons in possession of property against claims, the evidence against which may be supposed to have been lost or destroyed. The rules, as to presumptions from lapse of time, are founded on the same principle, and it follows, necessarily, that neither can attach until there is some wrong done, or right withheld; because, until then, the party injured had no cause of complaint, and no right to sue. If, for example, one having title to land, thought proper to leave the possession vacant for an hundred years, and no one entered, and a stranger then entered, could he avail himself of the time past, as a protection under the Statute, or lapse of time? Now, there is no evidence at all, that there has been any act done by either of the defendants or Lemuel Loftis, under whom they claim, inconsistent with the rights of the complainant, until the spring of this present year, a few months before the filing of the bill, when the defendant, Hampton, commenced working the mine, and no one will insist that in that time, either the Statute or the presumption would operate as a bar.
    The defendant, J. W. Hampton, states in his answer, that he purchased of the defendant, Andrew Loftis, “ having no notice whatever of complainant’s claim, or any incumbrance, until about thfe last of March, or first of April, 1845 ,” and he insists, “ that the long acquiescence of complainant, in the right of Andrew Loftis, and his sale and conveyance” to himself, may operate as a bar to the complainant’s claim — and upon this rests the defence of purchaser for valuable consideration, without notice.
    Without adverting to the informality of these averments, whether regarded as a plea or as the substance of a plea, embodied in the answer, it wants one essential ingredient, to wit, the averment that the defendant had paid the purchase money, which he was bound to prove. In Mitford’s Pleadings, 216, it is said, amongst other things, that the plea of purchase for valuable consideration, without notice, must aver the consideration and actual payment of it. The averment of a consideration secured to be paid, is not sufficient — and in this all the authorities concur. See 3 Atk. 304, 814. Here there is no such allegation or proof.
    The only remaining question is, whether the complainant’s right has not been forfeited by non-user. The general rule is, that rights may be surrendered or lost by the same means by which they were acquired. We have before seen that the right of mining can only be acquired by deed, and we need not travel out of the numerous cases decided in our own courts, for the rule, that a grant of the freehold will be presumed from twenty years’ continuous possession, and not sooner, and the same rule is applicable to the right of mining. It is familiarly applied to the right of way and other easements.
    ■ It is ordered and decreed that a writ of injunction do issue, perpetually to restrain the defendants from mining for gold, on the lands described in the pleadings; and that they do account before the Commissioner of the court, for the gold collected by them on the premises, since they have had the possession thereof; and it is further ordered, that the complainant has leave to move such further orders as may be necessary to carry this decree into effect.
    The defendants moved to reverse the decree, on all the grounds of exception taken in the answers and in argument on circuit. And further, that the decree, on the proofs made, is contrary to law and equity.
    Henry, for the motion.
    Perry, contra.
    
   Per Curiam.

The Court is satisfied with the reasoning of the decree, and the same is affirmed.

Decree affirmed.  