(81 W. Va. 316) BELCHER v. FIRST NAT. BANK OF PINE- (Nos. 3511-3514.) tificates of deposit for $20,000 each, payable to the sheriff on demand. Two of said certificates were paid without interest, one on the 1st of July and the other on the 15th of (Supreme Court of Appeals of West Virginia. September, 1917. There remains on deposit Nov. 13, 1917.) (Syllabus by the Court.) -- 1. MANDAMUS 71, 147 COUNTY DEPOSITORY-CREDITS. in said bank the sum of $60,000, which it refuses to pay out at the present time, claiming to hold said fund, not as a public deposi tory, but as a private institution, by virtue of a contract between it and the county court Mandamus is the appropriate remedy to compel a county depository under the depository of Wyoming county, by which it was agreed act (chapter 84, Acts 1915) to credit the sheriff the fund should not draw interest and the with interest that has accumulated on the pub- first of said certificates was not to become lic fund in its hands and to pay his lawful orders drawn upon it, and in such case the sher- payable until July 1, 1917, and the remaining iff is a proper relator. certificates in three, six, nine, and twelve 2. MANDAMUS 5 months thereafter. COUNTY DEPOSITORY PAYMENT OF FUNDS-PENDING SUIT. The pendency of a suit brought by the sheriff against a depository to recover a judgment for public funds held by it on deposit, and which it refuses to pay out upon his orders, is no defense to a proceeding in mandamus to compel it to pay such orders. 3. CONTRACTS 105-VIOLATION OF STATUTE -PUBLIC FUNDS-DEPOSIT-INTEREST. Point 6 of syllabus, Bunch v. Short, 78 W. Va. 764, 90 S. E. 810, approved and applied. Mandamus by W. B. Belcher, Sheriff and ex officio Treasurer of Wyoming County, against the Bank of Mullens and against the First National Bank of Pineville, depositories of the public funds of Wyoming county, consolidated with petitions by the Bank of Wyoming against the same respondents. Peremptory writs awarded. Dillon & Nuckolls, of Fayetteville, R. D. Bailey, of Baileysville, and S. M. B. Coulling, Jr., for petitioners. T. A. Bledsoe, of Charleston, and F. E. Shannon and E. W. Worrell, both of Pineville, for respondents. The county court has made numerous contracts for permanent road improvement, and the money for the work done thereunder has become payable, and respondents refuse to honor the orders regularly issued by the county court to the contractors and indorsed by the sheriff as county treasurer for payment by respondents. There is no answer or return to the alternative writs. The only defense is made by demurrer and motion to quash them and by plea in abatement, setting up the pendency, in the circuit court of Wyoming county, of motions for judgments against respondents, upon notice given jointly by relator, W. B. Belcher, sheriff, and Charles Short, his predecessor in office. [1] That mandamus is the appropriate remedy to compel a public depository to pay drafts regularly drawn upon the funds held by it as such, and that the county treasurer is a proper person to invoke the writ, there can be no question. Respondents occupy a WILLIAMS, J. These proceedings in man- public position which is quasi official in chardamus are to compel respondents, the Bank acter and their duties are purely ministerial. of Mullens and the First National Bank of They are vested with no discretion and the Pineville, depositories of the public funds of writ lies to compel them to perform their Wyoming county, to credit W. B. Belcher, duties to the public. 26 Cyc. 304 and 387; sheriff and ex officio treasurer of said county, State ex rel. Board of Education v. Cavenwith certain public funds now on deposit in dish, decided at the present term; and said banks and with interest that has ac- Thomas v. Mason, 39 W. Va. 526, 20 S. E. cumulated thereon, and to recognize said 580, 26 L. R. A. 727. Respondents admit funds, together with 3 per centum interest they are in possession of the funds, the First on daily balances thereof, as being held by National Bank of Pineville holding $60,000 them subject to the provisions of the deposi-and the Bank of Mullens $40,000 thereof. tory act. Chapter 84, Acts 1915. Being simi- [2, 3] The contention that respondents are lar in character, and the defense being the same in each case, they have been consolidated by consent of counsel, and will be disposed of in one opinion. not depositories of said funds within the meaning of the law, until said funds become payable by the terms of the contract under which they received them, and that they are justified in refusing to honor the sheriff's drafts until that time, is without merit. Their contracts with the county court ceased to be effective on the 1st of July, 1916, when the depository act took effect, if, in fact, they were ever legal and valid. That question The funds were derived from the sale of county bords, voted for the purpose of permanently improving the public roads of said county. Respondents were regularly appointed depositories of said county in the manner provided by the depository act and gave bond as therein required. There was deposited in was adjudicated in Bunch v. Short et al., 78 the First National Bank of Pineville on Feb-W. Va. 764, 90 S. E. 810, involving a considruary 29, 1916, $100,000 of said road fund, for eration of the very same contracts on which which it issued five noninterest-bearing cer- respondents rely. $60,000, the amount now in its hands, from the said 15th of September, 1917, up to the present time, and with like rate of interest The suits pending in the circuit court of [tional Bank of Pineville commanding it to Woming county whereby relator, W. B. give W. B. Belcher, sheriff of Wyoming Belcher, is seeking to recover judgments county, credit for $60,000, and credit him against respondents, constitute no bar to these also with interest at the rate of 3 per cent. proceedings. Those suits are inadequate per annum on $100,000, the amount of funds to relieve relator from the serious embarrass-originally deposited with said respondent, ment confronting him in the administration from the 1st day of July, 1916, to July 1, of the public funds. Large portions of the 1917, the time when the first $20,000 certifiwork of permanent road improvement have cate of deposit was paid, and with a like been completed, and the contractors are en- rate of interest on $80,000, the remainder of titled to their money, and the funds in the said fund, until September 15, 1917, the time hands of respondents are the only available when the second certificate of deposit was funds with which to pay them. The contrac-paid, and with a like rate of interest on tors are threatening to abandon the work if they are not paid. Respondents admit they have the funds in their possession, and a judgment, if one should be recovered against on daily balances of said fund, until the them in the pending suits, would not entitle relator to withdraw the funds from them. He can disburse it only by paying it out on the lawful orders of the county court, as provided by the depository act. Under that act the sheriff is not entitled to the possession of the funds as against the depositories. The funds are now in lawful hands, but the complaint is respondents are unlawfully refusing to apply them to the payment of lawful orders. The relief necessary to insure the proper and efficient administration of the county's fiscal affairs cannot be obtained by means of a judgment for money, even assuming one could be lawfully recovered, and hence the pendency of those suits is no bar to the present proceedings. whole thereof is disbursed, and also commanding it to pay the drafts or orders of the sheriff which have been assigned to the Bank of Wyoming, and any others he may lawfully draw upon said funds, whenever they are presented until such funds are exhausted. And as to the Bank of Mullens the writ will command it to credit the aforesaid sheriff with interest at the rate of 3 per cent. per annum on $50,000, the sum originally deposited with it, from the 1st day of July, 1916, until August 1, 1917, when the first of its $10,000 certificates of deposit was paid, and with like rate of interest on the remaining sum of $40,000, now in its hands, from said August 1, 1917, up to the present time, and with like rate of interest on daily bal sheriff's orders drawn upon it, which have been assigned to the Bank of Wyoming, and any other of his orders lawfully drawn upon said fund until the same is exhausted. Relator asks that respondents be compel-ances remaining in its hands, and to pay the led to pay interest on the public funds in their hands according to the provisions of the depository act, not only from the time that act took effect until the institution of these proceedings, but also on the daily balances in their hands, until the entire fund shall have been disbursed, and that they credit him therewith. The terms of the act expressly entitle him to this relief. Bank of Wyoming. Respondents having apparently acted in good faith in relying upon their contracts with the county court as a reason for declining to honor the sheriff's drafts, no costs will be awarded against them in these proceedings. (81 W. Va. 321) CHAMBERS et al. v. PERRINE et al. (No. 32.) There was assigned to this relator a number of orders aggregating $38,578.09, which had been issued on the 1st of October, 1917, to various contractors, and which had been (Supreme Court of Appeals of West Virginia. indorsed by the sheriff to be paid out of the funds in the hands of the Bank of Mullens; and there was likewise assigned to it numerous other orders aggregating $32,709.87, issued to contractors on the 6th and 7th of August, the 6th and 9th of September, and the 1st and 9th of October, 1917, which had heen indorsed by the sheriff to be paid out of the funds in the hands of the First National Bank of Pineville. Both of said respondent banks declined and refused to pay these orders for the reason, before stated, that the funds were not then available under their contracts with the county court. Nov. 13, 1917.) Writs will be awarded as to both of the respondents, the one against the First Na-drainage. 3. QUIETING TITLE ~41 LEASE-BILL. OIL AND GAS Because the bill is silent as to whether the delay rentals provided for in the lease and in the assignment thereof have been paid, and because no notice to drill within any rental period is alleged to have been given the assignees, and for failure therein, declaring a forfeiture of the assignment on that ground. All upon the principles enunciated in Carper v. United Fuel Gas Co., 78 W. Va. 433, 89 S. E. 12, L. R. A. 1917A, 171. Bill by O. J. Chambers and others against M. J. Perrine and others. A demurrer was sustained to the bill and the cause certified. Order certified affirmed. Ryan & Boggess, of Spencer, for plaintiffs. Pendleton, Mathews & Bell, of Grantsville, for defendants. MILLER, J. The sole question certified for our decision is whether the circuit court properly sustained the defendants' demur rer to the bill. and in the event they should fail to comply with all or any of the conditions and stipulations therein set out, said agreement should become null and void and the said lease revert to said Chambers, his heirs or assigns, and which stipulations it was also provided should extend to the heirs, executors, administrators and assigns of the said parties of the second part. It is not alleged in the bill that there had been any default on the part of said Baker and Smith in the payment to said lessors of the commutation or delay money as provided in said lease, or of any of the other specific covenants on the part of the lessee therein, nor in the payment to Chambers of the delay money stipulated in his assignment to them, except the general charge that they had not. complied with the covenants in said lease nor with the terms and conditions of said assignment; there is no specific charge that the delay rentals provided for therein had not been paid; but in the same connection it is alleged that although said Baker and Smith have wholly failed to comply with the covenants in said lease, and in said written assignment thereof, they were threatening to and unless enjoined would drill said land. ducing wells have been drilled on adjoining lands, the exact production from which it is alleged is unknown to plaintiffs, but that they are in such close proximity to the exterior boundaries of the leased premises, as to drain the same of large quantities of oil, and have and will continue to do so, unless a proper number of off-set wells are drilled on the leased lands within the next six months, and that unless such drilling is done it will result in irreparable loss to said lessors as well as to plaintiffs. location of the wells on the adjoining lands or the distance thereof from the land covered by said lease is not alleged. It is also charged that in order to protect the lines thereof at least six wells should have been drilled and completed on said lands during the year prior to the bringing of this suit. According to the allegations of the bill plaintiff Chambers was the lessee in a lease for oil and gas covering thirty-eight and a half acres of land, more or less, situate in Roane County, executed to him in March, 1912, by Rachael Bennett and others, a half interest in which the bill alleges was assign- Apparently the only other grounds for the ed by Chambers to his co-plaintiff on Feb-relief prayed for are that no wells have ruary 10, 1916. Subsequently on June 30, been drilled by Baker and Smith on the leas1914, Chambers made a conditional assigned premises; that a large number of proment of the lease to defendants, Baker and Smith, whereby, and as part consideration therefor, the assignees agreed and bound themselves to complete a well on the leased premises on or before January 1, 1915, through the Berea Grit Sand unless oil or gas should be found in paying quantities before reaching that sand, or in default thereof to pay to said Chambers, his heirs and assigns fifty dollars per annum, payable quarterly in advance for said delay until a well should be completed as aforesaid, and as a further consideration for such assignment, said assignees further agreed to pay to the lessors in said lease the quarterly rentals or commutation money for delay in drilling as provided therein, and also the one-eighth part of all the oil produced and saved from the premises, and also sixty-two and 50/100 dollars, in advance, each three months for the gas from each and every gas Plaintiffs also allege that they are threatenwell drilled thereon, the proceeds from ed by their lessors with suit for specific perwhich should be marketed and used off the formance of the covenants of said lease, and premises, and also to wholly comply with whereby they are liable to suffer loss; that all the agreements, stipulations and cove- they are willing and anxious and able to nants on the part of the lessee, Chambers, drill and operate said land and to comply contained therein; and in addition thereto to deliver to the credit of Chambers, his heirs, executors, administrators and assigns free of cost, in the pipe line to which the wells might be connected, the equal oneeighth part of all the oil produced and sav- The lease itself which is referred to in the ed from said premises, and also one-eighth bill is not filed or made a part thereof, but of all the income from all the gas produced, it is alleged it will be filed and made a part The with each and every covenant in said lease, if allowed to do so, and are not interfered therein by said Baker and Smith, as they have threatened to do, and will do so unless restrained therefrom. thereof if required by the court or by any [from the rather inconsistent allegations and Farty in interest. It is not alleged that said lease contains any clause or condition of forfeiture for failure to drill or protect the lines from drainage, and certainly there is nothing in the assignment of the lease from Chambers to Baker and Smith, forfeiting the rights of the assignees for failure to drill or protect the lines. The bill alleges that plaintiffs have endeavored to get Baker and Smith to comply with the contract of assignment, but the written notice dated November 29, 1916, served on them December 8, 1916, was to the effect that they had failed to comply with the provisions, requirements and covenants contained in said lease and in the assignment thereof, but not specifying the particular provisions or covenants referred to, and reciting that whereas a large number of producing oil and gas wells had been located so as to drain, and had for a long time been draining, said land, they were thereby notified that plaintiff thereby declared said assignment of said lease, and all the oil and gas rights thereunder annulled and terminated, and that they thereby assumed payment of all rentals to the lessors in said lease and would immediately begin to operate thereunder. [1] The prayer of the bill is that said assignment be canceled and removed as a cloud on said lease, and that Baker and Smith and all persons claiming under them be enjoined and inhibited from operating on said land for oil or gas and from interfering with plaintiffs in the operation thereof, and that a receiver be appointed to take charge and operate said lease, according to its covenants, and that an account might be taken, etc., and for general relief. As the bill nowhere alleges possession by plaintiffs a court of equity will not entertain them for the purpose of removing cloud from the legal title to the land or to their leasehold interest therein. With legal title a court of law ordinarily furnishes a complete and adequate remedy. Horse Creek Coal Land Co. v. Trees, 75 W. Va. 559, 84 S. E. 377, and cases cited. prayers of the bill, is the alleged failure of Baker and Smith to drill wells and protect the lines of the leased land from drainage. We have decided, in an action at law, that when the lease contains no express covenant, and implied covenants to drill and protect the lines are alone relied on, and the declaration is silent as to whether the delay rentals have been paid, the demurrer thereto should be sustained; and we also decided in the same case that when a lease for a specific term imposes the alternative duty to drill or pay delay rental, there is no implied covenant for diligent operations merely to make the lease profitable to the lessors, the delay rentals being regarded sufficient consideration for postponement of such operations, and we also held in the same case that there is no implied covenant in such a lease, operative within the period of postponement, to drill off-set wells to prevent drainage through wells upon adjoining territory, but that there is an implied condition that in the event of such drainage, or imminent danger thereof, that the lessee will, upon demand of the lessor, drill a well on the leased premises for such purpose within the last period for which the delay rental has been or shall be accepted, or commence one within said period and diligently prosecute the work on it, accompanied by notice of intention to refuse to receive further payments of rental and declare a forfeiture of the lease for failure to drill the same. Carper v. United Fuel Gas Co., 78 W. Va. 433, 89 S. E. 12, L. R. A. 1917A, 171. The Carper Case was an action at law, but the principles declared therein are as applicable in this case as in that. For these reasons we are of opinion that the demurrer to the bill was properly sustained and that the order certified should be affirmed. (80 W. Va. 761) PENCE v. JAMISON et al. (No. 3300.) (Supreme Court of Appeals of West Virginia. Oct. 2, 1917. Rehearing Denied Dec. 4, 1917.) (Syllabus by the Court.) 1. ACKNOWLEDGMENT 20(3) QUALIFICATION-AGENCY FOR Borrower, [2] Nor will parties as a general rule be entertained in a court of equity to enforce a forfeiture for conditions subsequent. In such cases also a party is ordinarily left to his legal remedy. Craig v. Hukill, 37 W. One who acts as agent of the borrower in Va. 520, 16 S. E. 363; Railroad Co. v. Tria-procuring a loan, and is paid for his services delphia, 58 W. Va. 520, 52 S. E. 499; Spies v. Railroad Co., 60 W. Va. 389, 55 S. E. 464; Headley v. Hoopengarner, 60 W. Va. 626, 55 S. E. 744; Pheasant v. Hanna, 63 W. Va. 613, 60 S. E. 618; Adams v. Railway Co., 64 W. Va. 188, 61 S. E. 341; Newton v. Kemper, 66 W. Va. 130, 66 S. E. 102, and Horse Creek Coal Land Co. v. Trees, supra. [3] The only other ground relied on for relief which can be reasonably extracted out of the money so procured, is not disqualified to take the acknowledgment of the borrower to a deed of trust given to secure such loan. SALE VALIDITY 2. MORTGAGES 341 TRUSTEE'S AGENCY FOR Creditor. A sale by a trustee who is the agent or attorney of the creditor, secured by the deed of trust under which such sale is made, will not be set aside for that reason alone, but his acts in the execution of the trust will be closely scrutinized with a view to seeing that he has performed his duties with entire impartiality. 3. MORTGAGES 25(2)-DEED OF TRUST-VA LIDITY-CONSIDERATION. A deed of trust made to secure promissory notes or other evidences of debt which are intended to be negotiated or assigned and transferred by the grantor to third persons is valid, although no money passes at the time of its execution; the consideration subsequently furnished by the purchaser of the notes will relate back and sustain the deed of trust. 4. MORTGAGES 356-DEED OF TRUST-ADVERTISEMENT OF SALE. An advertisement for sale by a trustee of a town lot upon which there is a house, which describes such lot by metes and bounds and gives the number of the lot upon the town plat, and the deed book and page where such plat is recorded, is sufficient without stating that there is a building upon such lot and the character thereof. 5. MORTGAGES 361-TRUST DEED-SALEPAYMENT OF PROCEEDS. Where a deed of trust provides that any sale made thereunder shall be for cash sufficient to pay the debt secured and upon time as to the residue, and the property is advertised by the trustee to be sold upon such terms, a sale made by the trustee under such advertisement for cash will not be set aside, where it appears that the purchaser at such sale desired to pay the entire purchase money on the day of sale, and the grantor in the deed of trust assented thereto. 6. MORTGAGES 369(2)-TRUST DEED-SALE -VALIDITY. A sale made by a trustee under a deed of trust will not be set aside because the trustee refused to continue such sale at the request of the debtor, upon the representation that negotiations were pending to procure the money to discharge the lien of the deed of trust, where similar representations theretofore repeatedly made by such debtor had been barren of results. 7. MORTGAGES 369(2)-TRUST DEED-SALE -DEED. A sale of real estate under a deed of trust will not be set aside because a trustee in a subsequent deed of trust covering the same real estate advertised it for sale at the same time, and joined the first trustee in such sale and in the deed conveying the same to the purchaser. The sale and conveyance made by the trustee in the first deed of trust left nothing to be sold or conveyed by said second trustee, and his joining in such sale and the deed made in pursuance thereof in nowise affected its validity. 8. MORTGAGES 209-TRUST DEED-DUTY OF TRUSTEE. A trustee in a deed of trust is under no duty to seek the aid of a court of equity in the administration of the trust, unless it appear that there are prior liens of uncertain amount or whose validity has not been determined, or some other equity which would render uncertain the title of a purchaser at a sale made by such trustee. Samuel W. Williams, of Bluefield, for appellant. Sanders & Crockett and L. J. Holland, all of Bluefield, for appellee. RITZ, J. The plaintiff needing the sum of $3,000 for the purpose of completing a building on a lot owned by her in the town of Bramwell, applied to the defendant L. J. Holland to secure a loan of that amount for her. For his services she agreed to pay him 5 per cent. of the amount desired, or $150. The defendants Kirkpatrick & Howard, of Lynchburg, Va., were applied to by Holland, and they secured the money from one of their clients, Holland dividing the fee of $150 with them. The plaintiff executed a deed of trust dated the 4th day of August, 1911, to secure this loan which was divided into three bonds, one for $500, due at one year from date; one for $1,000, due at two years from date; and one for $1,500, due at three years from date. The money, less the $150 agreed to be paid to Holland, was duly paid over to the plaintiff, and the bonds were delivered to a man by the name of Hutter who furnished the money. When the building was completed plaintiff found that she did not have enough money to pay for the materials and labor which had been used in the same, and to secure this remaining indebtedness she executed a deed of trust, on the 27th day of January, 1912, conveying the property to L. J. Holland, trustee. It appears that when the first bond of $500 became due it was not paid, but arrangements were made to carry it, and the interest was paid thereon. When the second bond of $1,000 fell due it was not paid, but like arrangements were made to carry it, together with the first $500 bond, until the last one of $1,500 became due, making the whole $3,000 fall due at the same time, to wit, on the 4th day of August, 1914. When this time arrived the plaintiff was still unable to pay the debt, and after considerable negotiation the time of payment was extended six months, to wit, until the 4th day of February, 1915. She did not then pay the debt, and after considerable correspondence and negotiation between her and Kirkpatrick & Howard they, on the 16th day of March, 1915, advertised the property to be sold on the 16th day of April, 1915. The creditors secured under the deed of trust to L. J. Holland, above referred to, had not been paid, and upon their demand Holland also advertised the property for sale under that deed of trust, said sale to be made on said 16th day of April, 1915. The defendant F. S. Kirkpatrick, one of the trustees in the deed of trust to secure the $3,000, and L. J. Holland, trustee in the other deed of trust, went to Bramwell on the 16th day of April, 1915, and made sale of the property, at which sale the defendant W. A. Jamison became the purchaser for the sum of $5,600, which sum |