230 Ill. 536 | Ill. | 1907
delivered the opinion of the court:
The lease in question was executed with the view to transfer a freehold interest in said premises, as it provided the term created thereby might last for an indefinite and undetermined period of time.in case oil or gas was discoveverd upon said premises, and in that regard this lease is not like a lease for a term of years. It was therefore necessary that the lease, to be valid, should contain a release or waiver of the homestead rights of David C. and Mary E. Brubaker, and if the premises, at the time the lease was executed, were of less value than $1000 the lease was void.
The first question presented upon this record for determination is the value of the premises in question on the eighth day of December, 1905, at the time the lease was made to McCarty by David C. and Mary E. Brubaker. If said premises at that time were of less value than $1000 then the lease from David C. and Mary E. Brubaker to McCarty is absolutely void and the appellants can predicate no rights thereon, unless it appears that the homestead rights of David C. and Mary E. Brubaker in the premises were waived and released or the possession of the premises was abandoned by them or they have estopped themselves from setting up their homestead rights as against the appellants.
The evidence as to the value of the premises on December 8, 1905, was conflicting. The witnesses who testified upon that point,—and they were numerous,—fixed the value thereof at that time from $17.50 per acre to $50 per acre, and thé appellants in their original bill, which was sworn to, admitted they were worth less than $1000. The trial court held they were worth less than $1000. The chancellor who tried the case saw and heard the witnesses, and in view of the conflict in the evidence his judgment upon the question of the value of said premises on December 8, 1905, we think should be held to control. It must therefore be held, for the purposes of this case, that said premises, at the time the lease to McCarty was executed, were worth less than $1000. As it is admitted that the homestead rights of David C. and Mary E. Brubaker in said premises were not waived or released and that they have not abandoned the possession of said premises, the question remains, did they voluntarily permit the appellants to enter upon said premises to explore and prospect for oil and gas, and did they receive rent from the appellants under the lease of December 8, 1905, subsequent to.its date, and thereby estop themselves from asserting the invalidity of said lease by reason of their failure to release or waive their homestead rights therein?
Up to the time of the filing of this bill the complainants had not done any prospecting for oil or gas upon said premises. After the bill was filed, however, and against the wish and protest of David C. and Mary E. Brubaker, they went upon said premises and sunk five wells, from which they obtained large quantities of oil and gas, and the rent provided for in the lease, which they claim to have paid to David C. and Mary E. Brubaker, amounted to but $2.25, which the trial court found was received by David C. and Mary E. Brubaker by reason of the fraudulent representations made to them by the complainants and their attorneys that the controversy over the McCarty and Hicks leases had been settled between those parties, and which amount they offered to return to the complainants and deposited for their benefit in court. We think it clear, therefore, that it cannot be successfully contended that the complainants were voluntarily let into the possession of said premises by David C. and Mary E. Brubaker, or that David C. and Mary E. Brubaker, or either of them, ever received, with a full knowledge of all the facts which affected their interest, any rent provided to be paid- to them by the terms of the lease of December 8, 1905. We are therefore of the opinion they are not estopped to challenge the validity of said lease by reason of a failure on their part to release their homestead rights in the premises covered by the lease.
It is contended, however, that although the court properly held that the premises on December 8, 1905, were of less value than $1000, that fact should not control, as it is said the court, in determining the homestead rights of David C. and Mary E. Brubaker in said premises, should have been governed by the value of said premises on the day on which oil and gas were discovered upon said premises, and not their value on the day on which the lease was executed. We cannot agree with this contention. If the premises, at the time the lease of December 8, 1905, was executed, were less in value than $1000, then the lease which attempted to give to McCarty and his assigns the right to use, possess and enjoy a portion of said premises for the purpose of min1 ‘ ing and operating for oil and gas, and laying pipe lines.and building tanks, stations and structures thereon to take care of said products, deprived David C. and Mary E. Brubaker of a portion of their homestead, and said homestead not having been waived or released in accordance with the terms of the statute, said lease was void. It may be conceded that the title to the oil and gas in said lands did not vest in the appellants, as assignees of said lease, until the oil and gas were discovered and appropriated by them; still the right to occupy the premises for the purposes aforesaid, conferred upon McCarty and his assignees a present vested right in said premises, which might last ten years and might last for an indefinite period if oil and gas were discovered in said premises, and to the extent of that use David C. Brubaker and Mary E. Brubaker were deprived of their homestead rights, which rights they could release to McCarty and his assigns only by an instrument in writing duly signed and acknowledged in accordance with the provisions of the statute governing the release and waiver of homesteads. Franklin Land Co. v. Wea Gas, Coal and Oil Co. 43 Kan. 518.
It is also contended that the court erred in correcting the description in the lease of April 5, 1905, by making the description therein contained correspond with the description of the premises which the parties intended to cover by said lease. The correction was limited by the decree to David C. and Mary E. Brubaker alone, and in no way affected the appellants. We think, therefore, they have no reason to complain as against that part of the decree.
It is also contended the decree is erroneous in enjoining the appellants from removing the property which they had attached to the .land of David C. and Mary E. Brubaker. From a careful reading of this record we are impressed with the view that the lease of December 8, 1905, was obtained from David C. and Mary E. Brubaker purely as a matter of speculation and not with a view to prospect their lands, as the Brubakers were led to believe the object of the lease was at the time it was executed, and that nothing was done under the lease by the appellants until other parties, acting under the Hicks lease, commenced prospecting for oil and gas upon the lands of David C. and Mary E. Brubaker, when the appellants, by a temporary injunction, tied the hands of these parties and then went onto the lands and commenced prospecting for oil and gas against the wishes and protests of the owners of the land, claiming under a lease which was absolutely void, and that while they may have expended a considerable amount of money upon said lands, we think they did so with a knowledge of all the facts and that they acted at their peril, and that the circuit court did not err in enjoining them from removing the property which they had placed upon the land.
Finding no reversible error in this record the decree of the circuit court of Crawford county will be affirmed.
Decree affirmed.