Bracken v. Sobra Vista Oil Co.

COOPER, C.

Action to quiet title to 3.85 acres of land. The defendant’s demurrer to the amended complaint was sustained, and upon plaintiffs declining further to amend judgment was entered for defendant. This appeal is from the judgment, and the sole question is as to the ruling on the demurrer.

The amended complaint states, in substance, that on the twenty-seventh day of February, 1901, the plaintiffs were the owners of the tract of land described in the amended complaint containing 20.10 acres, and on the same day they entered into a written agreement with defendant, whereby they agreed to sell, and defendant agreed to buy, the oil and mineral rights in the said land for the sum of six thousand dollars, of which sum one thousand dollars was to be paid down, one thousand dollars within thirty days from the date of the agreement, and four' thousand dollars within five months thereafter.

The agreement provided that the plaintiffs should execute a proper deed to the land, and deposit the same with the bank of William Collins & Sons, at Ventura, to be delivered to defendant upon its making full payment óf the purchase price

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according to the terms of the agreement. The deed was executed and left with the hank as per agreement. The agreement provided that “time shall be of the essence of this contract,” and that if the defendant should fail to make the payments in full as provided in the agreement, then the sums already paid should be forfeited to the plaintiffs.

The defendant was permitted under the agreement to immediately enter into possession, sink wells, and proceed with the development of the said land, and it did so enter into possession. Prior to the time of making the said agreement and delivering the said deed in escrow, the plaintiffs had encumbered a small part of the tract, by a lease to Edward Double et al. of certain other lands, in which lease plaintiffs had agreed that no oil wells should be sunk upon the lands of plaintiffs within three hundred feet of the wells to be sunk by said Edward Double et al. upon the lands so leased to them. As the following clause in the agreement is the one upon which plaintiffs predicate their claim, it is deemed necessary to state it in full, and it reads as follows: “And whereas in the lease from James Bracken herein to Edward Double et ah, dated September 27th, 1900, it was agreed that no wells should be sunk on the lands of James Bracken within 300 feet of the wells of said lessees or their assigns, and whereas the lands so leased to said Double et al. touch a portion of the northern boundary-line of the premises herein described, it is agreed between the parties hereto that a survey shall be made by John A. Barry, Civil Engineer at Ventura, and for all the land above described within 300 feet of the line of said lease there shall be deducted from the last payment to be made thereon a sum of money equal to $300 per acre, said survey to be binding upon the parties hereto, and the certificate of the surveyor to be furnished both parties hereto and the bank, and which certificate shall designate the exact number of acres, and showing the exact amount to be deducted from the last payment of said purchase price, it being agreed, however, that if within six months from this date two thirds of the stockholders of the Whidden & Double Oil Co., the assignees of Edward Double et al,, consent in writing to the waiver of said 300-foot clause in said lease, then there is to be no deduction, but the full purchase price is to be paid.”