*1 454 is evidence equity parol
reform or description correct the ambiguity. resolve explain admissible in a such law action to Howland, v. Railroad Haven Co. Grand & Milwaukee [Detroit, is not parol evidence supra.] instance the purpose In such description in the- vary correct, amend, alter, contradict apply description explain ambiguity deed but to testified parcel conveyed. himself to be Defendant- herein intended land concerning as to show what plaintiff tending “deal”-with his circumstanQes conveyed it was to be under such intended plaintiff’s error to the deal.- also admit version of action agree appellant’s contention We with is throughout. We at law and it been tried tending -parol properly think the evidence trial court admitted waived, resolve arose. A ambiguity jury latent court, conflicting, of fact, evidence was and the trial as the trier description plaintiff, in favor facts parcel or applied to, convey, the deed was intended to the south triangular parcel accordingly strip land and not land and declaring to be the land plaintiff entered decree the owner of petition. controversy was described in the The issues determined of fact trier of resolved in plaintiff which the fact favor of against weight be finding defendant. That must accorded by jury, being supported by force and, of verdict substantial evi dence, conclusive. Stewart (Mo.), is v. [Stewart W. Busby Self, 284 Mo. judgment S. 729.] should, therefore, affirmed. Hyde trial so ordered. court Bradley, CC., concur. opinion C.,
PER by Ferguson, foregoing CURIAM: The adopted opinion judges of the court. All the concur. J. W. Aden, Aden, Rena Blonde Frank Poplar W. G. Dalton, Boyden, Bluff, R. and Bank John W. Appellants. (2d) 1070. One, July 30,
Division *2 Abington Freer, & Phillips c& Phillips and Lawrence E. Tedrick appellants. *3 respondents. Orville Hill and W. David Zimmerman *4 BRADLEY, Kearbeys separate C. The Adens suits filed and involved, facts, cancel pertinent leases. The two leases and practically identical, are except as names description. and The single judgment causes were consolidated as one below tried entered, canceling ap- judgment both leases. From this defendants pealed. Hereinafter, the term defendants has reference to defendants Boyden. Dalton and forty
The Aden County, Missouri, acres in covers Butler Plaintiffs, wife, was executed October Frank Aden and his Rena, are lessors of this G. lease and Earl Doane Dal and defendant ton, lessees, later, are defendants became the sole owners. The Kearbey eighty County, covers acres Butler and was executed March 1921. Plaintiffs, wife, Blonde, J. W. and his the lessors in Kearbey lease; defendants G. Earl Doane and D. H. lessees, Doane are the but defendants later became the sole owners primary purpose lease. The of both prospecting for and the clay, if in pay a valuable ing quantities, but the leases included all kinds mineral and min products. eral dollar, consideration each lease was receipt one of which acknowledged, agreements “the covenants here inafter the part kept contained on paid, per the lessee pf *5 ’ ’ years formed. Each lease a term was for of five from and after the longer date thereof as much mineral thereafter as or mineral “and. products, them, or by either of are covered this property County, lease or 'block of in leases” Butler Missouri. land' cov land leases” block of or “a part of by Aden lease was the erecL House, and the Hope School Good from radius the five-mile five-mile radius or leases’-’ of land part “a block of lease was “the les that provided Each School House. Rushville the from it, developing will purpose for the coming this district see operate each drill actually mine, or impossible manifestly find it therefore, years, of five district; period the within the tract of land actually operating is. with agrees if said lessee hereby that lessor .the “is, radius, then the lessee the any the land” within in or on working valid, actually the land making standpoint this lease ’11 described. money “of derived per ten cent all lessors pay The lessees were to Each, products.” and mineral mineral any and all from the sale of commenced mining operation was mining or if no provided that .... unless the lessee days lease shall terminate “this lessor, the lessor’s tender or to pay on or before that date or Bluff; twenty-five . . . the sum of Poplar Bank of credit priv- a rental and cover per acre, operate sum shall cents which mining mining operations ilege deferring the' commencement of or date, shall this lease continue full for twelve months from up- In manner period of time. like force and effect for the said of min- payments payment commencement on like or tenders of may period for like ing mining further deferred operations successively, be there- and this lease will months same number of a- by it is periods such of time. understood extended for And herein, greed payment, the down consideration first 'recited only privileges granted date when said first covers not rent- aforesaid, option extending lessee’s payable al but also the ’’ any rights period and all conferred. as aforesaid and they unilateral, alleged per It is that leases are void that are consideration; paid, that no rental has been tend petual without vague, uncertain, indefinite deposited; that the leases are ered by perpetual, involved; the lessees’’’ as they “construed same, they lessors, when understood “while the executed meeting of the minds of terminable . . . there was no hence execution” time of the leases. lessors and the lessees at the claiming' alleged them is further that the lessees and those under premis.es “the described have carried no min abandoned above ing the Aden lease since operations’’’ November 1, 1931; January and on the lease since th.at “have, claiming them abandonment the those under for lessees and ’’ 'had, rights any, if or either them under feited all leases; declaring written notice forfeiture served n - ’ ' (cid:127) : (cid:127) ,- (cid:127) . .. lessors. . n by general ’denial, -alleged 'and further Defendants answered *6 devolving upon said leases terms of
they carried out all the “have the a- plaintiffs all kept performed, paid them be and and to sought file Defendants leases.”' mounts due them under said they no made com- permission, refused amended answer and were trial. plaint this in the motion for a new on allegations rendering judgment “the In court true; leases in both plaintiffs described petitions both canceled, set and for aside petitions are null and should be and void naught neither of the leases obli- held, principal reason them, gates lessees, holding to do or refrain from or those under ” doing anything. were commenced “mining operations” not There is claim that no “shortly ninety days. Mining on the Aden lease work was started “early Kearbey lease,” after execution and on of the year, then the Operations in 1921.” were continued for about and a Mining Company incorporated, was defendants Clay Missouri and assigned mining company. owned Defendants these leases to the thirty-seven per mining each of one-half cent the stock twenty-five company remaining per cent. the Doanes owned the organization mining company, operation After the of the was carried by 1, 1928, company owners of this until December when de- Gray. mining fendants company sold their stock to C. L. owned covering leases, including involved, (the the ones two here acres understand), blocks we and when sold their stock defendants Gray they $20,000, by took back a deed of min- trust for executed ing company, given, purchase price to secure the notes which notes each, principal $4000 included four notes for one five due years ten aggregating interest notes According plain- $3600. tiffs, mining, mine, no actual that work was done on the Aden 28, 1928, lease after November none on the after January 3, Gray bought After the stock of defendants mining company, company Gray. was under the control of While mining under a company his control the became receiv- involved by appointed Louis, finally, er Circuit Court of St. 27, 1932, June petition involuntary bankruptcy against was filed mining company, adjudged bankrupt and it was on October 1932. The purchase price given *7 stated, plaintiffs, As to 1930, Nearbey 28, none on lease lease and
Aden after November paid rental January 3, no was appears 1931. It also that after Poplar Bank of deposited their credit Bluff or plaintiffs mining operations. commencement of De- elsewhere order to defer leases, clay on two these that the value of fendants’ evidence trial, $50,000. It was estimated a at the time 850,000 clay tons engineer that Aden were on the lease there Nearbey lease were $40,000 lay, and that there worth as on 125,000 $10,000. 150,000 value of Defendants made tons of the offering, objection, that being to the an the evidence excluded effect $150,000 mines,”' expended development “of these two had question. Nearbeys It that the one each on also clay royalties land, paid $5000 were about mined from their royalties amounting $200. paid and Adens about appears, supra, Are As the leases unilateral? the learned principal that trial chancellor held leases void “for the reason obligates lessees, holding neither of these leases those under them, doing anything.” “A or refrain from unilateral con to do promise tract one in receives a a promisor which m> considera promise. tion for his A bilateral contract is one which there are contract; promises party two to the be- parties mutual between each n promisor promisee.” in both a aiid Law Institute’s Re a [American 13; Contracts, statement of the Law 13 J., p. 331, sec. C. sec. “Mutuality obligation means that upon of contract rests 179.] party something each permit to do or to be in consideration of done promise other; the act party neither is bound unless 681, (2d) both 329 46 Bayfield, are bound.” v. Mo. S. W. [Gillen 571, l. c. 575.] signed by The leases here involved were both the lessors and lessees, and free from the situation that existed in v. Gees Reid al., 556, 277 signed et Mo. 210 W. S. where was held lease that a will, the lessor alone creates an estate at is void lease and as a for years. a term (Mo. The Repetto App.), Hecht v. 33 S. W.
(2d) 1021, clay was a mine lease. The lessors for the consideration of dollar, receipt one acknowledged, of which was “and for the further agreement” stated, consideration thereinafter premises leased the to the lessees “for the full term of twelve months . . . and as them) longer clays (naming much paying quantities.’’’ are found in agreed royalty The pay lessees “to a 15 the lessors cents” per ton white, for per rough, agreed No. cents ton No. for month.” 30th of each royalty before the “on or
make settlement for output,” complete of the entire agreed record keep “to lessees customary with in accordance carry on work of “to prevents.” cause . an unavoidable . . methods. Unless was not unilateral. that the lease held beginning un leases at bar were that the If it be conceded always The record remain so. ilateral, not mean that does great assigns developed, expense, at their lessees shows mining operations clay of these leases and actual each mine on cannot, A extensively. per “lessor after were carried somewhat procure forfeiture or can entry explorations, mitting declare lease was without con upon grounds cellation of the & Prac mutuality.”' Law want of sideration and void for [Archer’s 344; Eclipse Oil v. Penn Cases, p. Co. South in Oil Gas tice 923; Miller-Sibley Va.), Lowther Oil Co. v. Co. (W. 34 E. Oil Co. S. Va.), 43 (W. Penn Oil Co. 433; v. South Va.), 44 E. Henne (W. 86; Zeig (Okla.), Hopkins 177 Pac. Doneghey S. E. Rich v. Ulrey cited; cases there A.), 259 l. c. (C. Fed. ler C. *8 (Tex. App.), 298; v. Haubert Civ. App. Von Hatzfeld Poe, 134 Ill. ;220 40 C. J. 1049-50.] Rights, 73, “It it is stated: page & Gas In Morrison &DeSoto’s Oil for of either general that attacks on oil leases want may in be stated usually except mutuality, for consideration, bills or of failed — mutuality seem and consideration performance, where both specific fail? Both required. why parties not on the to be And should exist supposed to contract about value to attempt contract or surface spot they stand. a thousand feet under the where The one who under- takes all the risk is unconscion- takes to value demonstrate this anticipations his say he the realization of able to shall be denied .that many which nonconformity proposition upon an abstract so to attempt in opinions apply delivered different have been the varying complications gas contracts.” oil the ever complaint from the appears, no came Adens about the in- So far as 1932, 26, July when served written validity of lease until their day October, 27th 1932.” to terminate the lease “before notice the 1931, Kearbeys notice, January 28, vacate and served “to deliver The suits cancel were not filed possession.”' to us the immediate February 17, part, from 1934. For the most the execution until trial, assigns of the the lessees and their the leases to the date down mining marketing, endeavoring or or engaged in actual to find as one of appears that the one dollar named the markets. It considera- actually paid, present but under the record such fail- tions was not “If wholly only the lease shows immaterial. ure nominal cash principal consideration, the presumed particular- payment, it is is ly territory, prospecting the undeveloped developing in of agreements to this gas; promises where or effect oil and land for paid nominal is not is made, consideration im fact that are See, Tetley McElmurry J., 1049, also p. material.” sec. C. [40 J., Bnt Corpus 13 C. see. p. Mo. 100 W. 664.] goes 1050) say same (40 J., p. C. connection on to Juris paid drilled, is the cash is not fact and no well “where consideration subject However, is to cancellation.’'’ lease unilateral present situation does not obtain case. last-mentioned lease, perform is our conclusion that under facts as lessees, mutuality not part ance on the are unilateral or lack mining All want of fre or that there consideration. leases these blended, quently necessary we not do deem it upon to enter discussion, Doneghey an academic discussion. For such Rich see seq. (Okla.), 177 Pac. l. c. et also leases
Plaintiffs contend are void not because appears above, limited as to term. As leases were for a term of years longer five “and as much as mineral or thereafter mineral prod property ucts or either of them are found covered quantities,” or block of . .” The “in phrase paying leases. . usually
which appears after the word paragraphs similar present leases is from the leases. language omitted Similar (except to the phrase), duration of as to the omitted leases, present mining leases, is common and have validity extendmg been held to affect the leases. Of such gas oil & 'Willingham’s clauses in Mills Oil, Law of Gas & leases* says: page 118 finding producing “The gas oil or during term, lease, fixed with the provision accordance a condi precedent tion right produce to the hold from the land after the expiration finding term. producing gas Such during of oil or term, however, fixed extends expiration after the ’’ *9 long fixed term as as that condition shall Many cases, continue. sup cited, porting quoted, among the text which are South Penn Oil (W. Snodgrass Va.), Co. v. 76 (N. S.) 848; S. E. 43 R.L. A.
Young (Pa.), Hill 121; v. Forest Oil Co. 45 Atl. Barbour-Stedman Tompkins (W. Va.), & Co. S. 365; 93 E. L. 1918B, R. A. Co.,
Gillespie v. Oil 260 1043; Ill. 102 N. Ohio E. Texas-Pacific (Tex. Coal & Oil Co. App.), 688; v. Bratton Civ. Enfield (Ky.), 248 Woods Parks W. v. Sinai (Okla.), Oil Co. also, See, Repetto (Mo. Pac. 517. App.), Hecht v. (2d) S. W. extending 1021. We clause hold that the did not make these leases or void cancellation. authorize say Plaintiffs that the leases have been because of forfeited tender, to pay deposit twenty-five failure per cents acre.
We do think is in this not there merit' contention. As appears, supra, twenty-five per cents rental acre was to “cover privilege of (ital- mining operations” of commencement deferring the stated, have And, we specified. ninety days beyond ours) ics not com- were mining operations” “mining or claim is no that there days. ninety menced within mining engi Doane, Earl a Gr. leases abandoned? Were the clay mined thirty years, testified that experience of neer with an of “semi- principally in the manufacture is these leases used tile, ware, wall hard dec ware, sanitary floor and dinner vitreous special . . . refractories and porcelains tiles electric orated high extremely large put insulators insulators, . . . tension of transformers, grinders the manufacture and ... ’’ ‘‘ ’r materials, with clay wheels; that this is combined other grinding change in for get make a manufacturer to a is “to it difficult any by adding in respect change formula in using, that mula he is to anyway it, something or to or other from clay or take another to “if clay take this vary formula;” that would his manufacturers besides, it give pay freight on to you them would to free and long through experi they gone period their unless have plant, formula;” acceptable to their that there found it ment and to clay;” “you for show1'’the manufac “no market that have to this formula;” clay fit particular turers “that this will into their that inducing clay up by “for is a concern market this first built be deposit clay you you enough, have a sufficient lieve have or that just place. you very deposit clay, in the first If have a small one time, they produce long period for a won’t consider that couldn’t taking your You have formula into theirs. first to convince them body clay.”' you large deposit that have of this Doane further clay this that testified order interest manufacturers deposits sufficiently large had be convinced that the were and that producer “financially equipped clay able and to produce this uniformly, clay with additional cash select as it and handle dug, financially clay long produce period able to time,” from the evidence appears defendants meas requirements. ured rip to financial many further from the evidence of Doane samples clay of this manufacturers country; sent over ‘‘always gone My has and still is. still trying associates and are I clay. to sell this Our eastern representative, Ives, Mr. Lee E. who Cleveland, Ohio, my at employ lives now I associates and 1934) (trial May 19, at this time purpose selling for the clay. this — him, Then besides we Mr. Charles M. Frozheim at Wheeling, Virginia, iswho a technical charge man and has West experi- employed mental work. He is now in attempt to market clay. *10 represent He and Mr. Ives in clay us the territory. market Mr. doing Frozheim is Charles business as M. Frozheim Company at Virginia. gentlemen represent full Wheeling, two our West These working capacity the Ives started for that about force. us sales Mr. ago.” just year, recently, and Mr. Frozheim about a month
first of the clay; depression the sale this Doane affected of testified clay manufacturing “that were customers of this plants all the that part. down, entirely large or in a either closed down been closed a of the I running have been about fourth time. should Some them depression. the first feel the say industry this was one industries to (cid:127) started in fall of ‘29. ...” That mining, actual make no claim that -that work Defendants mine, was on the Aden after and on done November 3, 1931, shows, Kearbey January after but their evidence nothing contrary, “physical operation while and there that going dates, sampling lot yet mines these of the was not on after stored) selling clay (already going was mined on.” mining kind and another was record work of one shows leases, manage performed in connection with these and under1 the defendants, shortly ment of from after the execution leases un n company Gray mining til defendants their stock in the sold December, After time market 1928.’ and until established clay destroyed by depression 1929, Gray for this was carried work mining in connection mines company, with the until controlled, bankruptcy. in receivership which he became involved mining going on, When all actual times either not at leases, may these some was in mine in what but times it be block, termed the and this mine was continuation clay appears, stated, land. And it drift during receivership bankruptcy mining company, practically market, least, constant effort was made to'find a at mined, clay already during and 'some was marketed those periods.
And, stated, defendants, from the made, time default was payment purchase price notes for sale of their stock in the mining company Gray, endeavored, vigorously suc without cess, Also, Gray to foreclose their trust. deed of 'vigorously foreclosure, when resisted he was.unable promises persuasion, effective with receivership followed citation contempt. to defendants for The receivership was at and, Gray understand, instance of as we primary purpose its towas prevent by foreclosure defendants. said cannot be that defendants were not interested after the leases sale of their stock in the Gray. company vitally They were All concerned. had to show purcháse price notes, for their stock was the executed company, which notes secured deed of trust on the leases in the zones. The trial two chancellor did terms abandoned, find that the "leases had been but plaintiffs alleged so *11 466 allegations “the the court found that respective petitions,
their ’’ are petitions plaintiffs in of true. both is the leases here interest of the lessees apparent It is mining estate in the corporeal interest the incorporeal or' conveyed by only be or an then released If it could were such land. royalty is re- writing limitations. But where instrument parties “it manifest that the intended to is production, served explore right the mining enterprise, upon and the embark have, thereto. The courts there- granted as incident was an premises creates a in an instrument fore, grant of the land that a held deed, incidental con- distinguished mineral to the lease, as from a viz., exploration the parties, purpose of the summation discovery gas quantities, development paying of oil Willingham’s profit.” & Law premises mutual to their [Mills Gas,& p. Oil 166.] ‘‘ says: whether, question page The text same further This abandoned, case, upon intent any depends the lease has been by his attitude to lessee. is to be determined But this intent might He intend to hold the land enterprise a whole. wards as itself, any proceeding premises without intention of to test lease, gas; he will having purpose abandoned oil granted incident the land which be held to have abandoned question abandonment, enterprise. any like other question, and circumstances sur determined all the facts - rounding particular Supporting quoted, each case.” text cases, following, among Oil & other are cited: Gas Co. v. Watford 9, 53, Shipman, 144; 84 N. 122 Am. Rep. 233 Ill. E. St. Manhattan Carrell, 526, 1084; E. Mt. Oil v. 164 Ind. 73 v. Co. N. Collins Pleasant etc., Co., 483, 54, Oil, S.) 38 (N. 134; L. R. A. 85 Kan. 118 Pac. 366, Gray Mining Norton, Ky. 79; Co. v. 174 S. W. v. United 192 345, 305, 372; Spring, 1913B, 129 56 Ann. La. Cas. So. Detlor v. 492, 690, Holland, 266; 57 N. 40 Highfield E. Ohio St. 49 L. R. A. Kirk, 19, McAfee, 93 109 Co. v. Pa. Atl. Grubb Tex. Price, 464; Laing 75 W. Va. S. E. Cases, page Archer’s & & Gas Law Practice Oil says: upon premises “Where lessee enters leased discovers oil gas paying right quantities produce gas his oil becomes right, right a vested and before can such be divested must be proven intentionally premises, that he abandoned the and has re- linquished possession thereof. The intentional, abandonment must be relinquishment questions actual. These fact, and it upon party asserting devolves such prove abandonment facts.” Gray charge that when took of these leases he commenced land, company on is called the what drift Kearbey land, was continuous from might when then possibly oil the land and
have been conducted either Gray witness Doane said that the fact that And lease. "wouldn’t clay any royalty” on pay company removed from have to land commencing the reasons” for his "probably one of the com- Gray this action pany land. Plaintiffs’ invoke evidence *12 conceded, If it it be no abandonment. so means conclusive. equity try and we de
This cause is novo and reach our own doing any In equity we conclusion. this case give should and do finding judgment due deference to of the trial chancellor. burden to establish plaintiffs, (cid:127)The abandonment we are not, rule constrained to record does opinion, justify our these conclusion that might were abandoned. We state here offerings upon we have Also, drawn for some of the facts. we may have considered some stricken, that was plaintiffs evidence agree may equity done in an case. Karr, Graham v. [See 1157, 995, 1000, (2d) W. Mo. 55 S. l. c. v. Salisbury, Webb (2d) 1045, 327 Mo. 39 W. l. c. and eases there cited.] judgment should be reversed and the cause remanded with plaintiff’s directions to dismiss petitions, Fergu- is so ordered.
son GO., Hyde, concur. PER foregoing opinion CURIAM: The by Bradley, C., adopted opinion of the court. judges concur, All the except, Douglas, J., voting because not a member of the court when cause was sub-
mitted.
George W. Appellant, v. Fred M. King, Edward H. Rieth Rieth,
and Albert J. (2d) Rieth. 1. One, July
Division notes for their to defendants stock mining company due, paid became foreclose, endeavored completed. but foreclosure was never Some- Gray times make payment would and foreclosure would be aban- doned, occasion, and on one contempt by defendants were cited for Louis, foreclose, the Circuit St. of their activities to Court because contrary restraining by to order made the St. Louis Circuit Court. July 20, 1933, defendants, public at sale trustee bank- rupt estate company, purchased Aden and- Defendants’ bid the two blocks. leases, and also other subject to “mort- that it was $10, trustee’s deed recites and the record,” reference to deed of gage which had indebtedness of trust held defendants. according no actual was done