
    CHARLESTON.
    Craig v. Hukill, et al.
    
    Submitted September 15, 1892.
    Decided December 22, 1892.
    Equity Jurisdiction — Forfeiture. .
    Equity will not enforce a forfeiture. It will not divest a vested estate by enforcing a forfeiture for the breach of a subsequent condition. Tn sucli ease the party is left to his legal remedy.
    
      O. Johnson for appellant:
    
      I. — Court had no jurisdiction to proceed to a partition. — 15 Am. Dee. 712 ; Id. 731; 42 Am. Dec. 163; 47 Am. Dec. 358; 45 Am. Dec. 552; 13 Pet. 166; 4 Rand. 493; 18 How. 297; 67 Am. Dec. 733 ; 77 Am. Dec 684.
    
      II. — If the court had jurisdiction the relief could not he granted, because a court of equity never enforces forfeiture. — 36 W. Va. 639; 40 N: II. 530; 31 Conn. 468; 15 Wall. 146; 1 Pet. 232; 2 Sto. Eq. § 1319; 1 Johns. Ch’y 415.
    
      III. — There was no forfeiture in this case. — 80 Pa. St 142 i 36 W. Va. 639; 34 W. Va. 375; Id. 397; 1 Wall. 24; 98 II. S. 514; 17 Wall. 19; 96 U. S. 336; 22 IS. J. Eq. 457; 4 W. Va. 45; 6 W. Va. 110; 18 Gratt. 812; 16 W. Va. 246; 24 W. Va. 1; 12 W. Va. 246; 13 Ohio St. 471.
    IV.— The deed did not give such title as authorized partition.— 6 Mo. App. 297.
    
      V. — The Oil and. Gas under the surface could not he partitioned. —15 Am. Dec. 669; 28 W. Va. 210; 41 Pa. St. 357; 80 Pa. St. 142.
    Keck, Son & East for appellant:
    
      Iea.se under which appellant claims should he held good. — 34 W.Va. 375; 36 W. Va. 639.
    W. P. IIubbaRD for appellant:
    
      I. — Equity will not enforce forfeiture. — 1 Pom. Eq. Juris. §§ 459, 460; 34 W. Va. 375 ; Id. 385.
    
      II. — Oil in the Rock can not be transferred by such an agreement. — 28 W. Va. 210, 218, 220.
    
      III. — Tenant in common can not convey oil right so as to affect his co-tenants. — 19 K. J. Eq. 394; Freem. Opten. & Part. § 198; 7 Cush. 368.
    TV.— Craig not entitled to have partition made. — Code (1891) c. 79; 19 1ST. J. Eq. 394; 56 Miss. 342; 7 Watts. 205; 9 Watts 410; 16 Gratt. 264; 65 Cal. 46; 44 N. J. Eq. 454.
    
      V. — Admissibility of Evidence. — 12 S. E. Rep. 526; 4 W. Va. 45; 6 W. Va. 110; 18 Gratt. 812; 16 W. Va, 443; 12 W. Va. 246; 22 W. Va, 1; 22 K J. Eq. 457; 17 Wall. 19, 24, 25; 98 IT. S. 514; 128 U. S. 590.
    
      Cox & Bakek for appellee, cited 11 S. E. Hep. 754; 36 W. 639; 88 Pa. St. 198 ; 58 la. 308; 2 Kent. Com. 228, 230 & n.; 19 Ves. 122; 11 Ves. 278; 32 Ga. 266; 72 Ga. 475; 8 Barb. 48; 3 Yerg. 336; 50 Mo. 546; 75 Mo. 204; 33 Conn. 347; 71 Ala. 240; 11 Pa. St. 36; Walk. Eq. 145; 79 Va. 73; 69 la. 208; 12 B. Mon. 651, 662; 57 Ill. 489; 2 Beasl. 348; 60 Pa. St. 118; 9 Am. & Eng. Ency. L. 113 (b); 5 Wait Ac. & Def. 82; 2 Gratt. 341 -,\l8 Pa. St. 42.
   BRANNON, Judge:

W. M. Davis executed to.David Kennedy a lease of a tract of land for a term of' years for the purpose of drilling for petroleum oil, which lease has come by assignment to E. M. Ilukill. The deed of lease contains a covenant on the part of the lessee to commence operations for development of oil within nine months, or for paymeut of a certain sum of money per month until commencement of work, with a provision that a failure to do the one or the other should work an absolute forfeiture of the lease.

Afterwards Davis executed an instrument by which he agreed to sell to II. P. Griffith all the oil and gas under the said tract, and Griffith transferred all his right in said tract to Joseph W. Craig. Davis had a life-estate in said tract with remainder in fee for his children; and by the death of one of them he inherited an undivided one fifth share therein. Ilukill claiming under the first-mentioned lease as also under a lease from the guardian of the surviving children bored for and produced oil on the premises. Craig brought a suit in equity in the Circuit Court of Monongalia county against Ilukill, Davis and others praying that the tract he partitioned and one fifth be assigned as the share of Davis in fee, and that all the oil and gas under it he assigned to the plaintiff, Craig.

The theory of Craig for relief is, that by reason of failure to commence operations or to pay money in lieu thereof, as provided in the lease to Kennedy, i.t had become forfeited; and he had hv the said agreement between Davis and Griffith become entitled, in exclusion of all rights under Kennedy’s lease to all oil, which Davis could convey.

Obviously, Craig can got relief only tlirough au enforcement of the forfeiture of the Kennedy lease. Thus, at the threshhold of the case, wo are met with the question whether a court of equity will enforce this alleged forfeiture.

Affirmative relief against penalties and forfeitures was one of the springs or fountains of equity jurisdiction, and the jurisdiction was Very early exercised; and it would be going in the very opposite direction, and acting contrary to its essential principles, to affirmatively enforce a forfeiture. The elementary books on equity jurisprudence state the rule as almost an axiom, that equity never enforces a penalty or forfeiture. 2 Story, Eq. Jur. § 1319; 1 Pom. Eq. Jur. § 459; Bisp. Eq. § 181; Beach, Mod. Eq. Jur. § 1013. Mr. Pomeroy, in 1 Pom. Eq. Jur. § 460, says that rule is without exception; and my search has led me to the same conclusion.

This doctrine is supported in America by decisions of the highest authority, coming from jurists of the most eminent name — among them Kent and Marshall; and there seems to be no change or qualification in later decisions. Livingston v. Tompkins, 4 Johns. Ch’y 415; Horsburg v. Baker, 1 Pet. 232; Marshall v. Vicksburg, 15 Wall. 146.

.The estate under the Kennedy lease certainly vested; and the -plaintiff seeks by a suit in equity to devest it, which he can only do by declaring and enforcing the forfeiture of that lease; for the plaintiff’s right must depend for its birth and existence on that forfeiture: In Livingston v. 'Tompkins, supra, it was hold that “equity will not assist the recovery of a penalty or forfeiture or anything in the nature of a forfeiture,” and “will not lend its aid to de-vest an estate for the breach of a condition subsequent.” McKim v. Mason, 2 Md. Ch. 510; Warner v. Bennett, 31 Conn. 468; Smith v. Jawett, 40 N. H. 530.

In Oil, etc., Co. v. Atlantic, etc., Co., 57 Pa. St. 65, a bill was filed to enforce a forfeiture of a lease because of a failure to build a road according to .the express provisions of the lease ; and the court refused, on the ground that equity never lends its aid in enforcement of a forfeiture but will leave the parties to their legal remedie^. Many cases cited in the text-books above cited sustain this principle. Though equity has jurisdiction in partition, yet it will not exercise such jurisdiction when it can be exercised only by enforcing a forfeiture, when the plaintiff’s right grows only out of a forfeiture.

As equity has no jurisdiction, we can not decide the merits of the case. We therefore reverse the decree and dismiss the hill without prejudice to the plaintiff to seek to assert his rights by any appropriate legal, remedy.

ReveRSed. Dismissed.  