Compton v. People's Gas Co.

89 P. 1039 | Kan. | 1907

The opinion of the court was delivered by

Porter, J.:

Various objections are raised to the validity of the first lease, based upon the fact that a portion of the premises was a homestead when the lease was executed. When the suit was filed and these objections were first set up, and when plaintiff procured his lease, the youngest child had become of age and the homestead character of the premises no longer existed-While the homestead right was in existence no one entitled thereto complained or objected. After it was terminated a third party, never interested therein, seeks to have an executed contract set aside because, as he now claims, it was void at its inception.

It. appears that the husband of Elizabeth Phillips died seventeen years before the first lease was executed. We are aware of no law which prohibits the sale, lease or other alienation of premises occupied by a widow and the children as a homestead. As was held in Gatton v. Tolley, 22 Kan. 678, such sale or alienation is always subject to the right of the heirs to continue to occupy the premises as a homestead until the widow marries, the youngest child becomes of age or the homestead is abandoned. The interest of any heir may be sold, subject always to the rights of those occupying the premises as a homestead. (Dayton v. Donart, 22 Kan. 256; Mitchell v. Mitchell, 69 Kan. 441, 77 Pac. 98.) The widow herself may sell her interest, and, of course, may lease the same interest. The case of Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995, holding a lease given on lands owned by tenants in common and occupied as a homestead to be valid and binding upon the interest conveyed, settles the law adversely to plaintiff. The lease conveyed the interest of the lessor, Elizabeth Phillips. It binds her interest in the common property. This is precisely the effect which the judgment of the trial court gives to it.

It is insisted that the first lease was void because it authorized the commission of waste, which the widow herself could not commit nor authorize another to do. The argument is that, as it was impossible to take oil or gas from under one portion of the premises without taking it from under some portion belonging to the heirs, no valid lease could be given without all the heirs joining therein. But if the widow could not give a valid lease permitting others to take oil or gas from the lands, it must follow that she could not herself lawfully drill thereon for oil or gas or take them from under any of the lands. This would be placing a construction on the homestead laws which was never intended, and one which would lead to absurd consequences.

The original lessees in the lease executed by Mrs. Phillips were the Pennsylvania Oil Company, a partnership composed of two persons. We do not regard as serious the contention that the lease is void because this partnership was not a corporation. The petition alleges that the People’s Gas Company is now the owner and holder of the pretended gas lease.

Another contention is that the People’s Gas Company has no legal capacity to sue. This is based upon an extremely technical and narrow view of the statute which declares the purpose for which corporations may be formed. The language of the twenty-third clause-of section 1249 of the General Statutes of 1901 is: “The manufacture and supply of gas, or the supply of light or heat to the public by any other means.” The words “by any other means” are certainly broad enough to include natural gas, although when the act was passed the use of natural gas may not have been within the contemplation of the legislature. Plaintiff brings this suit against the People’s Gas Company and alleges it to be a corporation duly organized and existing under and by virtue of the laws of Kansas. It will not do for him to sue the company as a corporation and in the same suit deny that it is such, if it is within his power to question the corporate capacity of defendant in a collateral proceeding, which it is not necessary to decide.

At the time Compton took his lease Mrs. Phillips was using gas for domestic purposes, which had been furnished her for more than three years under the terms of the lease. She had never served any notice on the gas company that she desired a forfeiture of the lease, but had continued to use gas furnished thereunder. In view of these facts, which are admitted, it hardly seems necessary to present other reasons why plaintiff, who claims under her, is estopped from now setting up that the lease constitutes a mere license, revocable at her pleasure, and that the mere execution of the second lease constituted a revocation.

In the case of Monfort v. Lanyon, 67 Kan. 310, 72 Pac. 784, the lease provided that if no gas-well should be drilled on the lands the lease should become void, unless the lessee paid forty dollars per year, and it was held that the payment of the money continued the lease in force. Here, instead of the payment of a sum of money the lesseé preserved all the rights granted under the lease by piping and furnishing gas for domestic purposes. Besides supplying gas for these purposes, the court found that the company drilled a paying well on the premises at an expense of $1250. Although the drilling was done after the execution of the second lease, the machinery was placed upon the ground before the second lease was made, and the agent of Mrs. Phillips selected the location of the well. These and other facts mentioned likewise prevent plaintiff from overturning the first lease on the ground that it is void for want of mutuality. After a lessee has operated under a lease for four years, and expended money in carrying out its terms, and the lessor during that time has accepted the consideration and benefits, a third party who takes a subsequent lease with notice of the former and of the facts cannot be permitted to defeat of set aside the former lease upon such grounds.

Numerous suggestions are made in plaintiff’s brief in regard to the character of oil-and-gas leases generally, the necessity that there should be mutuality, and whether they are mere options revocable at pleasure. None of these questions, in our view of this case, is involved. The lease of plaintiff contains this provision:

“It is agreed by the parties to this contract that this' lease is taken by second party with full knowledge as shown by the records of Montgomery county, Kansas. The party of the second part agrees to pay all expenses that may arise by the granting of this lease.”

He contracted with knowledge of the first lease, its terms and conditions, and bought a lawsuit. Most of the facts are admitted by stipulation. The court made but two findings in addition'to the agreed facts; Plaintiff made no request for other findings or to set aside those made. They are based upon the evidence, and, of course, cannot be ignored or set aside here. The judgment of the court is supported by the facts and the law, and is just and equitable. It is affirmed.