Phelps v. Church of Our Lady, Help of Christians

Citations

• 115 F. 882
• 53 C.C.A. 407
• 1902 U.S. App. LEXIS 4260

Syllabus

<p>1. Minerals — Exception in Deed — Marble.</p> <p>Under the law of New York as settled by its court of appeals, marble in place is a “mineral,” and the title thereto does not pass by a conveyance of the land which excepts and reserves to the grantor all mines and minerals which may be found therein.</p> <p>2. Assumpsit — Implied Contract — Defenses;</p> <p>In a jurisdiction where the rule prevails that a defendant in trover may defeat recovery by showing the ownership and right of possession of the property sued for in a third person, the same defense is available where the plaintiff elects to waive the tort and sue in assumpsit to recover the value of the property.</p> <p>8. Same — To Recover Value of Property Converted — Title or Possession to Support.</p> <p>Under the law of New York a lease of land for a term of years, with the right to dig, quarry, and use “all or any marble, stone, or other valuable material substance” found therein, but which excepts and reserves “mines and minerals as specified in original conveyance,” where the deed under which the lessor holds title expressly excepted and reserved therefrom all mines and minerals found in the land, conveys to the lessee no title to marble in place in the land, and will not support an action of assumpsit by the lessee to recover the value of marble quarried and removed from the land by another at a time when plaintiff was not in possession.</p>