69 Ark. 513 | Ark. | 1901
(after stating the facts). We need not consider the question as to whether the additional written agreement, executed nearly a year subsequent to the lease, was based upon a consideration, and therefore to be considered and construed in connection with the lease. If it be conceded that the latter agreement controlled the clause of the lease requiring mineral or fossil sub-' stances to be mined or quarried within the period of five years from the date of the lease, still, under the terms of the latter agreement, there was to be suspension of work (or the requirements of the five-year clause), only, to use the language of the agreement,“when the party of the second part shall have struck and found mineral in paying quantities in three several places on said demised premises.” It was purely a question of fact as to whether the mineral had been found in compliance with the terms of this latter agreement. We will not encumber the record by setting out and discussing in detail the evidence. In our opinion the preponderance of the evidence shows that the lessee had not “struck and found mineral in paying quantities in three several places on the demised premises/" But it is contended that this provision of the latter agreement, as well as the five-year clause of the lease, was waived by the lessor in a subsequent verbal agreement by which he accepted what had already been done as a compliance with the terms of both instruments.
While it is true that a lease or written contract concerning the leasing of lands for more than one' year cannot be altered or destroyed by any subsequent verbal agreement under the statute of frauds (Sand. & H. Dig., § 3469), yet “it is a settled doctrine of equity” — as was said by Judge Cockrill in Bazemore v. Mullins, 52 Ark. 207 — “never to lend its aid to one who invokes it for the purpose of perpetrating a fraud.” The uncontroverted proof of Patton, the lessor, under whom appellees claim, is as follows: “I recollect he (Hines, the lessee) commenced immediately after the lease was made, and worked continuously on that fall, next spring, and until the next fall and winter, when we made this agreement, — worked right on until we had an agreement by which he was permitted to quit work until a railroad was built so as to furnish transportation. I accepted the work which Mr. Hines had done as a compliance with the terms and the additional article of agreement filed herein, and relieved him from further work until there should be such transportation as was provided for in such lease and additional agreement. I was satisfied from what I saw, and from what Mr. Hines told me, that mineral in paying quantities had been discovered. At the time I sold the land to Mr. Dennis I told him that I had given Mr. Hines what he called ‘a lay off until the transportation comes near enough to ship the mineral off. He said that was all right — that he and the old man would fix that all right. I mean by the ‘old man/ Hines, and by ‘lay off/ that he was not to do any more work until the transportation comes near enough to ship the ore out.”
This proof furnishes the basis for the doctrine of estoppel in pais against the lessor and all claiming under him with notice of these facts. This court, in Shields v. Smith, 37 Ark. 47, quoted approvingly from Union Mutual Ins. Co. v. Mowry, 96 H. S. 544, as follows: “The doctrine of estoppel is applied with respect to representations of a party to prevent their operating as a fraud upon one who has been led to rely upon them. They would have that effect if a party, who, by his statements as to matters of fact, or as to his intended abandonment of existing rights, had designedly induced another to change his conduct or alter his condition in reliance upon them, could be permitted to deny the truth of his statement, or enforce his rights against his declared intention of abandonment.” Bigelow, Est. 557.
Mr. Bishop says: “Though the statute of frauds binds the equity the same as the law tribunals, it does not abrogate the prior equity jurisdiction over fraud.” And, continuing, he says: “It is a palpable fraud for one man to entice another with promises to change his course of action and to his injury part with his effects or his services, then fall back on the statutes to avoid doing what he had led the other to expect.” Bishop, Contr. (Enlarged Ed.) § 1237. Hnder this proof, to permit appellees to cancel the lease on the ground alleged in the complaint would be to enable them to take advantage of conditions which were brought about by the conduct of the lessor, and which neither he nor they could avail themselves of without perpetrating a fraud upon the rights of the appellants. The decree of the learned chancellor is therefore reversed, and the cause is remanded, with directions to dismiss the complaint for want of equity.