100 Kan. 255 | Kan. | 1917
The defendants appeal from a judgment enjoining them from operating under an oil and gas lease on land near Augusta, in Butler county.
In their answer the defendants denied each and all the allegations of the petition, denied that the plaintiff was the owner or in possession of the land described, and set up a lengthy affirmative defense, a large part of which was stricken out on the motion of the plaintiff. Of this the defendants complain. All the facts set out in that part of the answer which was stricken out might have been proved under the remaining allegations, and evidence was introduced tending to prove these facts. For these reasons this complaint of the defendant is without substantial merit., No reversible error was committed in striking out part of the answer.
“It is a modern tendency of courts to attach less importance to the phrase ‘burden of proof’ than was formerly the case, in so far as it is supposed to relate to or affect the order in which the parties shall offer their evidence upon a given issue. Much is left to the discretion of the trial court, and this is especially true where the trial is by the court. Where both parties have availed themselves of the opportunity to present all their evidence, the mere fact that the trial court required the*257 one upon whom the burden of proof would not, according to the rules of evidence, rest, to proceed first has been held not to be error.” (p. 196.) (See, also, cases there cited.)
“It is agreed that should said Beck make a bona fide sale of said 160 acres before lessee commences operations to drill on said land and refunds to lessee all money paid Beck, then lessee is to cancel this lease.”
The lease was recorded on the 9th day of October, 1912. Difficulty arose between J. L. Beck and the Wichita Natural Gas Company. This resulted in litigation by which Beck sought to have the lease canceled. Judgment was rendered against him. The time for ah appeal from that judgment had not yet expired when the present action was commenced'. Soon after the rendition of that judgment, and. some time prior to the commencement of the present action, Beck began to make efforts to sell the land, and continued those efforts until the land was sold to the plaintiff. One of the purposes of these efforts was to defeat the Wichita Natural Gas Company’s lease. About the 15th day of March, 1915, Beck orally agreed to sell the land for $8000, and on the 8th day of April, 1915, sold it to the plaintiff and executed to him a deed therefor. The negotiations that resulted in the execution of the deed were had hurriedly. The sale was an absolute sale of the property without conditions, except that the plaintiff gave to Beck a mortgage for $2500 as a part of the purchase price.
The plaintiff was engaged in the oil and gas business and had obtained a franchise from the city of Wichita to furnish gas to that city, in competition with the Wichita Natural Gas Company. On April 3, 1915, that company determined to
Under the condition named in the lease, the right of the Wichita Natural Gas Company to drill for gas or oil terminated when Beck made a bona fide sale of the land, if that sale was made before the company commenced operations to drill. The sale to the plaintiff was a genuine, absolute sale of the property. One of its purposes was to defeat the rights of the Wichita Natural Gas Company under the lease. The lease provided that these rights might be terminated by a bona fide sale. Beck acted within the terms of the lease and made a bona fide sale of the land to the plaintiff.
Under the circumstances disclosed by the evidence the judgment of the district court was right, and the judgment is affirmed. '