Orton v. Dabney

YORK, J.

— The defendant appeals from a judgment rendered against him in favor of the respondents quieting title to certain real property, and also a judgment in the sum of $1,130 as and for rent under an oil lease covering such real property.

The respondents, or in some instances their vendors, had executed a so-called community oil lease to the appellant for which they had received approximately $9,000. Subsequently, the respondents, in consideration of appellant agreeing to pay $10 per month per lot, executed what purported to be an extension of that lease. Appellant contends the respondents have no cause of action, and were entitled to no relief because respondents had failed to give appellant a written notice of his failure to perform and of their intention to enforce a forfeiture for that failure, appellant contending that the giving of thirty days’ notice was a condition precedent to the right of respondents to declare the lease forfeited and re-enter the land. Appellant raised the question by demurrer to the complaint and by objecting to the introduction of any evidence at the time of trial. The demurrer was overruled as was the objection. The exact day of the month the original lease was signed does not appear in the record, except that the lease upon its face purports to be signed “on the- day of February, 1921.”

The complaint recites the ownership of the property, the making of the lease — setting it out

in haec verba

— and in said complaint they set out the execution of an extension of said lease wherein and whereby the period for commencing drilling operations under said lease was extended to the twenty-third day of March, 1922; and they allege further in the complaint that no drilling operations were commenced upon the said real property before or on the twenty-third day of March, 1922, and that no drilling operations had

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been commenced since the twenty-third day of March, 1922. The complaint was verified upon the twenty-second day of May, 1922, and filed the same day. Evidence as to the contents of such extension was introduced at the time of the trial, and although there was objection thereto, the trial court found against all of the contentions of the appellant, and same was properly admitted, for the reason that there was introduced in evidence a letter signed by appellant stating that on, to wit, October 4, 1921, the date for drilling under the original lease had expired. That after the receipt of this signed statement the extension referred to was obtained apparently upon the strength of the statements made in the letter or offer signed by the appellant. The undisputed evidence shows that the appellant failed to commence drilling operations within the time limited under the offer and extension granted or at all, and his interest in the land was ended before the suit was filed. But the lease having been recorded, cast a cloud upon the plaintiffs’ title, and it was necessary for them to file suit to quiet title in order that it might appear of record that the contingency upon which the lease had been given and upon which it had terminated had occurred, yet the appellant had refused to deliver and had not delivered a quitclaim deed, as he agreed to do in the extension and offer. The objection to the offer which was introduced as exhibit 2 herein was predicated on the ground that it was an attempt to vary the terms of the written instrument introduced as plaintiffs’ exhibit 3. It was a part of the written negotiations entered into between plaintiffs and defendant after the failure of defendant to drill under the original lease; the only thing done by defendant in connection with the drilling being merely the deposit of certain lumber upon part of the property covered by the lease, which lumber was later removed on account of the failure of defendant to pay for same. The evidence in this case therefore practically shows an abandonment by defendant. Read together with the lease, the offer preceding the extension and the extension itself allow us to reach no other conclusion than that it was intended that the lease and all terms thereof should become null and void if drilling operations were not actually started within the time limited, that is, that all rights of defendant were absolutely terminated upon his failure to commence drilling by March 23, 1922.