Appeal from the Circuit Court of Franklin County. No. 96-L-103 Honorable David Frankland, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
Clarence Deon Seiler and Fred Seiler (plaintiffs) filed suit against Zeigler Coal Holding Company, Old Ben Coal Company, Timothy Bauman, Tina Bauman, Carl V. Gates, and Donald G. Gates (defendants) in the circuit court of Franklin County. Plaintiffs sought damages regarding an interest in minerals they claim as successors to parties to a covenant. The circuit court granted defendants' motion for summary judgment. On appeal, the issue is whether the covenant was a personal undertaking that has expired by virtue of the death of the original parties. We affirm.
I.W. Reagin, Marion E. Reagin, and Belle Seiler inherited three tracts of real estate as heirs of C.W. Reagin and Josephine Reagin. C.W. Reagin met his demise on December 30, 1930, and Josephine Reagin met her demise on October 21, 1944. On November 27, 1946, I.W., Marion, and Belle, and their respective spouses, signed a document entitled "Covenant."
The agreement described three parcels of land and stated that the parties had agreed to divide the land by transferring full title of the tracts, with parcel 1 going to I.W., parcel 2 to Belle, and parcel 3 to Marion. The agreement stated, "[P]arcels 1 and 3 include all mineral rights and parcel 2 for surface only, the mineral rights having been heretofore conveyed to others." The agreement then stated as follows:
"WHEREAS it is the desire of all said parties that the minerals underlying said tracts 1 and 3 be shared in equally by each of said parties, but it is also the deswire [sic] of the parties that title to the mineral rights be not separated as a matter of record so as to expose such mineral rights to separate taxation;
NOW[,] THEREFORE[,] it is hereby mutually agreed by and between said parties that all net proceeds from the sale or exploitation of such mineral rights shall be divided between the parties hereto, each to take one[-]third thereof.
IT IS FURTHER AGREED by and between said parties that the record owners of said tracts 1 and 3 shall consult the other parties hereto and obtain the consent of both of them, prior to leasing, selling[,] or otherwise disposing of or exploiting such mineral rights.
IT IS FURTHER AGREED by and between said parties that this agreement shall be binding on the parties hereto and their respective heirs, personal representatives[,] and assigns and shall constitute, with reference to tracts 1 and 3, a covenant running with the land."
The heirs executed deeds conveying the tracts of land, conveying parcel 1 to I.W., parcel 2 to Belle, and parcel 3 to Marion. The agreement was recorded with the Franklin County recorder of deeds on July 27, 1955.
I.W. Reagin died intestate on July 5, 1955, still owning parcel 1 and leaving as heirs- at-law his widow, Ruth Reagin; Belle Seiler's children, Grace Seiler and Clarence Seiler; and his brother, Marion E. Reagin. In separate quitclaim deeds, Grace Seiler and Clarence Seiler conveyed to Ruth Reagin all real estate interests inherited from I.W. Both of these deeds mentioned the mineral rights in parcel 3. Ruth Reagin then conveyed to Marion Reagin all of her interest in parcel 1 and the minerals underlying parcel 3 in a deed dated October 8, 1955.
Defendants Timothy Bauman, Tina Bauman, Carl Gates, and Donald Gates are the successors to the interests of Marion Reagin. In 1994 these defendants sold their interests in the minerals underlying parcel 3 to defendant Old Ben Coal Company.
Plaintiffs (Clarence Deon Seiler and Fred Seiler) are the heirs to the interests of Belle Seiler. Plaintiffs brought this action for breach of covenant, trespass, and conversion. They complain that defendants have exploited the minerals in parcel 3 without plaintiffs' consent or just compensation. Defendants filed a motion for summary judgment. As a part of their response, plaintiffs pointed to title opinions that had been prepared for defendant Zeigler Coal Holding Company, the parent company for defendant Old Ben Coal Company. Plaintiffs pointed out that the opinions noted that while I.W.'s interest in the minerals underlying parcel 3 arising out of the agreement had been conveyed to the record owner of parcel 3, there had been no similar conveyance by the heirs of Belle Seiler. One of the title opinions stated, "[Q]uitclaim deed or instrument showing consent on the part of Freddie G. Seiler and ...