
    Newburg Petroleum Co. v. Weare.
    
      Covenant running with land — Sale—hease.
    On August 20, 1866, Weare owned certain oil-producing lands subject only to the unexpired terms of leases theretofore given by his grantors. The Newburg Petroleum Company, by assignment, owned such leases, and on that day released and quitclaimed to W. all its right, title, ar.d interest in such lands without any reservation, and it put him into possession. In part consideration for this conveyance, W. covenanted and agreed for himself with the company to pay and deliver to the company, its successors and assigns, upon the leased premises, the one-sixth part of all the oil and other mineral substances produced or pumped thereon or therefrom, daily as produced during the remainder of the terms granted in the leases. On September 3, 1866, such conveyance and agreement were duly recorded, and on that day W. sold and conveyed to sundry parties all his interest in the different parts of such lands, and He put each grantee into possession of the part so conveyed. Thereafter and during the terms of the leases W.’s grantees produced large quantities of oil from the respective parts, but W. and his grantees failed and refused to account to the N. P. Co. for such production, or to pay and deliver the one-sixth part thereof, as W. agreed to do. The N. P. Co. brought its action against W. and his grantees on W.’s agreement with the N. P. Co., and it sought to hold these grantees liable for the covenant of W. To the petition alleging such facts these grantees demurred. Held, such agreement is personal to Weare, and did not run with the land so as to bind the grantees of Weare for his failure to perform such agreement.
    Error to the District Court of Washington county.
    On August SO, 1866, John H. Weare was the grantee of certain oil-producing lands in Washington county, upon which his grantors had given certain unexpired leases, under which the oil was then being obtained, and which .leases were then owned, and work thereunder was being done, by the Newberg Petroleum Company.
    On that day this company entered into a written contract with Weare, by which the Newburg Petroleum Company agreed to convey to Weare all the company’s interest in these lands; and, as part of the consideration for such release, Weare agreed “to pay and deliver to the company, their successors and assigns, upon the premises so released, the one full equal sixth part of all the coal, carbon, or rock oil, salt, or other mineral substance excavated, produced, or pumped thereon, and therefrom daily as produced during the rest and residue now remaining of the terms granted in said above mentioned leases respectively.”
    The company, in fulfillment of this agreement, conveyed to Weare all its interest in these premises without any reservation whatever, and they put Weare into possession of the premises.
    This conveyance was duly recorded on September 3, 1866; and on that day Weare conveyed, by different deeds, all his interest in the various parts of these same premises, to his several co-defendants; and he put such parties into possession of the several parts of the premises so conveyed.
    During the terms of these leases these several parties procured large quantities of carbon or rock oil from these same premises; but neither Weare nor any'of these several co-defendants paid or delivered fro the Newburg Petroleum Company, or any one for them, the one-sixth part, or any part, of such carbon, or rock oil, as by his written contract Weare agreed to do; but, on demand, each party refused so to do, and each refused to account for any part of the same.
    Thereupon the Newburg Petroleum Company brought suit against Weare and his several grantees to enforce such accounting, payment, and delivery, and to recover in kind or the value of the one-sixth part of such production. Plaintiff propounded certain interrogatories as to the amount and time of such production.'
    Certain questions in the case were disposed of in Newburg Petroleum Company v. Weare et al., 27 Ohio St., 343, and the case was remanded to the court of common pleas for further proceedings.
    By leave of court, on April 29,1878, the plaintiff filed its second amended petition, in which it set forth the alleged facts and matters of complaint. On May 6,1879, a demurrer to the second amended petition was filed by the Exchange Oil Company, one of these co-defendants of Weare. Other pleadings were filed at different times, but they need not be noticed here.
    At the January term, 1880, this demurrer was sustained ; and, at plaintiff’s request, leave was given to amend the second amended petition.
    
      At the ensuing May term no amendment had been made, but further leave to amend the same was given. At the October (15th) term, 1880, as no further amendment had been made, leave to file an amendment to the same was limited to sixty days. After the expiration of the sixty days, .and without further leave of court, an amendment was filed, setting up the full performance of its agreement with Weare on the part of the plaintiff; and it also alleged “ that when the said John II. Weare sold and conveyed the said demised premises to the said defendant, the Exchange Oil Company, of Cincinnati, Ohio, it, the said Exchange Oil Company, of Cincinnati, Ohio, had actual notice and full knowledge of the plaintiff's right under the said de-' mises and the agreement with the said John H. Weare, and that the plaintiff was entitled thereunder, as a part of the purchase price of said transfer, to enter daily upon the demised premises during the remainder of the said terms, and to receive one-sixth of the production of the said petroleum oil in kind.
    “ And that it, said Exchange Oil Company, of Cincinnati, Ohio, agreed to and with the said John H. Weare to take, and did take, the said demised premises, subject to the plaintiff's right to one-sixth of the production in kind, and to enter upon the premises daily, and receive the same. And it, the said Exchange Oil Company, of Cincinnati, Ohio, agreed to and with said John Ii. Weare to satisfy the plaintiff's rights and claims by virtue of said demises and agreements, and agreed to take, and did take, the bond and obligation of the said John H. Weare to repay to it any sum that it would have to pay to the plaintiff'.”
    On motion of the Exchange Oil Company, at the January term, 1882, this amendment was stricken from the files, “ on the ground that it was irregularly filed without leave of court.”
    And thereupon the plaintiff moved the court for leave to file the said amendment to its second amended petition, and so ordered to be stricken out for reason of irregularity in filing; and the court overruled and denied the motion,finding there had been no laches to preclude the filing, but de nying the motion solely for the reason that all of said amendment, except that portion relating to the agreement of the Exchange Oil Company with John H. Weare, presented no material substantial allegation in addition to the plaintiff’s second amended petition ; and for the reason that the part setting out the agreement of the Exchango Oil Company, of Cincinnati, Ohio, with John H. Weare, sets out a new and entirely different cause of action not affecting all the defendants; and the court refused leave to file the amendment in whole or with the allegation of the agreement between the Exchange Oil Company, of Cincinnati, Ohio, stricken out, to which ruling and decision the plaintiff excepted.
    Thereupon the court sustained the demurrers to the second amended petition, filed on behalf of all the other defendants, except Weare, and gave them judgment against plaintiff for their costs ; but/the court rendered no judgment for or against Weare, though plaintiff moved for a judgment against him for failing to answer the interrogatories, to which refusal the plaintiff excepted.
    On appeal, the district court held substantially the same as the court of common pleas had held; and it refused leave to file the amendment, and it sustained the demurrers of all the defendants, except Weare, and rendered judgment for their costs ; to which plaintiff' excepted, and now seeks a reversal of those judgments.
    
      JR. K. Shaw, for plaintiff in error.
    
      W. B. Loomis and JE. A. Guthrie, for defendants in error.
   Follett, J.

The original action was upon plaintiff’s contract with Weare. Weare did not perform his contract to pay and deliver to plaintiff the one-sixth part of all the oil produced or pumped from the premises, and he failed to account for the same ; and he refused to do so.

Plaintiff claimed that this contract “run with the land,” and that Weare and his assigns were bound by the contract; and to enforce this claim the Newburg Petroleum Company brought an action against Weare and his assigns, and the company demanded an account of the oil produced, and a delivery of the one-sixth part thereof, or the value of this one-sixth part.

Weare’s assigns, his co-defendants, claimed that this contract was only a personal agreement of Weare, that it was not a covenant that run with the land, and that it did not bind any one but Weare.

The questions presented to us by the record here are the only ones that we can review, and these questions arise upon the second amended petition and the .demurrers thereto of the co-defendants of Weare.

Before considering what is thus presented, we may see if other matters require our examination. There was a contest as to the filing of certain amendments to the second amended petition.

It seems that the court of common pleas was liberal in granting leave to file such amendments, yet they were not filed within any leave the court granted.

We will not regard these amendments as first presented to the district court, as was the case in Brock v. Bateman, 25 Ohio St. 609, where the court refused leave to file such an amendment.

Here they were irregularly filed in the court of common pleas, without leave of court, and for this reason it was not error reviewable for th.e court to strike them from the files, especially as the court thereafter considered their merits as allegations in the petition before it refused to permit them to be properly filed. On full consideration the court refused leave to file this amendment, “ solely for the reason that all of said amendment, except that portion relating to the agreement of' the Exchange Oil Company with John H. Weare, presents no material substantial allegation in addition to the plaintiff’s second amended petition ; and for the reason that the part setting out the agreement of the Exchange Oil Company, of Cincinnati; Ohio, with John H. Weare, sets out a new and entirely different cause of action not affecting all the defendants.”

On such an agreement plaintiff could have had a separate action against the Exchange Oil Company. In thus holding, we think the court did not abuse its discretion, or deprive plaintiff of any right. “ Motions for leave to amend are addressed to the sound discretion of the court, and their refusal will not be held to be erroneous, unless it is affirmatively shown that the discretion was abused.” Clark v. Clark, 20 Ohio St. 128.

As to plaintiff’s demand for a judgment against Weare, as on default for not answering the interrogatories more fully, and the court’s refusal to render such a judgment., section 5101 of the Revised Statutes provides : “Answers to interrogatories may be enforced by nonsuit, judgment by default, or by attachment, as the justice of the case may require.” '

From the record of this case, which presents to us the pleadings and the facts, we do not think there is manifest error in the court’s exercise of a sound discretion.

As to plaintiff’s action against Weare alone, the case has remained and still is in the court of common pleas, and it may be proceeded with there.

We will now inquire as to what questions are presented to us by the second amended petition and 'the demurrers thereto of the Exchange Oil Company and of the other co-defendants of Weare.

Among other things, plaintiff avers the making and assignment of certain oil leases on these lands, and that on August 30, 1.866, the plaintiff was seized of all the right, title, and interest of the lessees in and to the residue then unexpired of their terms in the premises.

“And that on the 30th day of August, a. d. 1866, the defendant, John H. Weare, held the title in fee of said premises subject to the rights of the plaintiff as assignee, as above mentioned, of the said unexpired terms. And the plaintiff says that after it, the said plaintiff, became seized of the said premises for the said unexpired terms as aforesaid, and while the plaintiff was in actual possession of the said demised premises, holding them under the said leases, and after the said John H. Weare, defendant, became the owner of the fee as aforesaid, subject to said demises, and while Weare was such owner, holding subject to said demises, to wit, on the 30th day of August, a. d. 1866, the plaintiff, by its duly authorized agent, entered into a contract and agreement, in writing, with the defendant, John H. Weare, which contract John H. Weare duly signed, sealed, and acknowledged before a notary public of Washington county, in the state of Ohio, in the presence of two witnesses, who signed their names thereto as witnesses.

“In which written agreement it was recited that the said leases heretofore mentioned were then owned by the said Newburg Petroleum Company, the plaintiff herein. And the plaintiff says that in the written agreement so made and executed by the plaintiff and John II. Weare, on the 30th day of August, 1866, the plaintiff agreed to and with John H. "Weare to remise and release and forever quitclaim, and did therein remise, release, and quitclaim unto John H. Weare all the right, title, and interest of the Newburg Petroleum Company, of, in and to the lands conveyed by and described in the leases.”

After such a conveyance no interest in these lands remained in the plaintiff, except the possession. But the plaintiff did not retain the possession.

“And the plaintiff says that after making and delivery of the said contract, the plaintiff put John H. Weare into possession of all the premises so as aforesaid remised, released, and quitclaimed under and in pursuance of the written agreement arid contract.”

This is plaintiff’s statement of the case, and the demurrers admit all this to be true.

And with other considerations “ the' plaintiff says that John H. Weare, in the written agreement, duly executed and delivered by him, under seal, did covenant and agree to and with the plaintiff, the Newburg Petroleum Company, to pay and deliver to the Newburg Petroleum Company, its successors and assigns, upon said leased premises, the one full equal sixth part of all the carbon or rock-oil, salt or other mineral substances produced or pumped thereon or therefrom daily, as produced during the rest and residue then remaining of the terms granted in said abov-e mentioned leases respectively.”

By the terms of this agreement as set forth Weare binds himself alone. And he does not grant to plaintiff any interest in the land itself; and he does not agree to produce any oil or mineral substance from the land; but if, during the terms of those leases, any oil or minei’al substance is “produced or pumped thereon or therefrom”— which will thus be separated from the realty and become personalty — Weare agrees to pay and deliver upon said leased premises, to the New burg Petroleum Company, its successors and assigns, the one full equal sixth part of such oil or mineral substance, daily, as produced.

Such seem to be the language and the meaning of the parties’ agreement, and that Weare alone is bound, and that his assigns are not bound. But it is claimed that the plaintiff may hold the assignees of Weare by virtue of the principle in the first rule given in Spencer’s Case, 1 Smith Lead. Cas. *69: “I. When the covenant extends to a thing in esse, parcel of the demise, the thing to be done by force of the coyenant is quodammodo, annexed and appurtenant to the thing demised, and shall go with the land, and shall bind the assignee, although he be not bound by express words; but when the covenant extends to a thing which is not in being at the time of the demise made, it can not be appurtenant or annexed to the thing which hath no being.”

The plaintiff, as assignee of these leases, owned no part of these lands, and it had only a right, for a term of years, to produce or pump oil and other mineral substances on and from these lands. Subject to this right for such terms of years, Weare owned these lands and all that was appurtenant thereto; and when the plaintiff released and conveyed to Weare, without reservation, this right and all plaintiff’s interest in the lands, and put him into possession of the- same; and when it took Weare’s agreement to pay and deliver to plaintiff the one-sixth part of what should be produced or pumped thereon or therefrom; there was no' “ thing in esse, parcel of the demise,” that was “ annexed and appurtenant to the thing demised,” so as to bring this case withiu the first part of that rule in Spencer’s Case; and it seems to fall within the second part of that rule, and that the covenant binds “ the covenantor, his executors or administrators, and not the assignee.”

Weare did not attempt to bind his assigns in express terms, and he did not make the payment of the one-sixth part of the production a charge on the land; neither did the law make such payment or delivery a lieu upon the land, as it does in case of a tax on land.

We need but refer to the much learning” upon this general subject collected in connection with Spencer’s Case, in Smith Lead. Cas. *68 et seq.

There is no error apparent upon the record that requires a reversal of the judgments in this case, and the same are affirmed as to all the defendants, except Weare. This is done without any prejudice to the plaintiff’s action and rights against Weare in this case, which as to such rights is still pending in the court of common pleas of- Washington county.

Judgment affirmed.  