*1 сonstruction of the or furnished material labor improvement. Home difference that the Oil does not make It Company innocent Bank of Cowden are and the State maturity. They purchasers for value before the notes rights greater acquire Oil Com- the Sloan could no than pur- mortgagee. .Being pany, innocent which was. maturity, of the notes before for value chasers Company Bank of Cowden Oil the State Home against judgment McGraw entitled to recover would be give them would not notes, but as the maker prior question on the lots to have lien subcontractors, given in favor statute lien materialmen. laborers affirmed. will be the decree
Therefore Company Refining of Louisiana. Gulf v. 1929. Opinion March delivered
143 F. P. Sizer, Coulter & Coulter, Gordon master, Huff Campbell appellant. Tom W. and James D. for Head, Gaughan, Gaughan, Mahony, & Sifford, Godwin Yocym Saye& appellee-. and Patterson & for Hector, (after stating fаcts). C. J., In the first Hart, place, appellees counsel for claim that the interest cre- assigned by Oonyers ated the leases which were Hunt to such did create an interest in lands support ejectment against as would the lessees their assignee. question This was discussed and decided on appeal. eject- the first court The said that an -action of -might ment be maintained in State in all where this. cases legal right possеssion against there is a wrongfully who one person having
holds from the legal right. necessary phase It is not discuss the case say that, further than to whatever on, was decided appeal remains the law the case all fur proceedings. general grounded rule This is ther on expedience, public policy, reason. The rule has been uniformly long and so established adhered to so that it practice procedurе. matter of not mere Talia i-s Vogel 359,1 Barnett, 702; 47 Ark. S. W. v. v. Little ferro 13; 609, and Miller 19 S. W. Ark. Lumber Rock, 55 Com Floyd, Ark. S. pany W. 741. v. Hence we opinion in -our former may ap settled it is consider right maintain action. pellant had *6 144 appellant the ease remanded, filed what
.After complaint he terms an and amended substituted in the long circuit court. The amendment in too to be set out is opinion, only necessary this and we deem it to state changes parties it in no matter in issue between so far as it relatеs in the construction of the leases question; and, under the well this established rule in upon appeal State that law as settled the first be comes and must law of in observed as the the case subsequent progress throughout, its and, the circuit court upon appeal regard as as well, must this court a second appeal. conclusive the In issues decided in the former upon appeal, short, the as decision the fоrmer so far in judicata. question, it construed the Fort leases is res Attorney Company Lumber Smith ex rel. v. Gen State Ingraham, eral, 138 581, 211 v. 147 Ark. S. W. Baum 662; Improvement Ark. Atkinson 309, 407; S. W. 227 Company v. Nakdimen, 157 Ark. 561. S. W. respective parties Counsel for the to this lawsuit upon have entered learned elaborate discussions legal rights upon parties origi- by conferred right nal leases, and the which inured to the by appellant’s gran- virtue the second leases obtained tоr from the owners the land. needWe not consider phase judicata, having- case, because it res is expressly upon ap- been decided court the former peal. only grantor It was there held that it is where a attempts greater convey estate than lands he has conveyance right to at and title the time of an passes after-acquired grantee, title to the under Craw- Digest, greater § 1498, and then no ford & Mоses’ estate passed attempted conveyance. in the than to be first question the court On this said: of these “The execution the owners second appellant’s assignor, conceding even of the lands to it sufficiently alleged right conveyed that the estate was thereby immediately plaintiff to the
inured benefit could have statute, had no effect under the terms right plaintiff convey or other further than any already conveyed had the terms of under alleged lessors event, that the and it was not convey did not have a leasehold estates only It in cases where instance, the first as done. is attempts convey grantor greater in the estate *7 of the he the to at the time lands than conveyance has and title after-acquired passes any to the title grantee no statute, under the of the then and terms greater attempted pass estate would than conveyed in the first instance.” expressly it will be held that the
Thus seen it was any appellant acquire greater in no event could title or conveyed him interest the lands than had been it does not under the terms of the first leases. Hence were whatever whether the leases make difference years. gas estates or for The oil and estates freehold years longer as to run for and much leаses were five as paying quantities. The gas were found in oil and gas by oil and were to be and taken the lessees extracted money royalties assignee, were for or and their paid. to be
By just of leases, which, the terms the as we appellant, rights- the to com- seen, fixed of was bound plete year lease, from the of a well within one -date the year expired or null and When the void. became it gas dug or within the well fоund oil a he had not by depth prescribed leases, the terms of the the leases complied terminated, unless he with themselves the other may Ithe A lease terminate end leases. or conditions in expiration of term it by created, for which as by or under breach a forfeiture well terms of the as expira- year from the of the Hence, when the date lease. assigned appellant expired which tion of the lease by required having well, drilled as terms, its without his comply attempting the other it, with conditions in provisions rights it terminated under his provided This is because lease so itself. lease required depth that, well to had express if a terms year, gas or if oil or had not within not been drilled depth, found at lesser then the lease become should null and void. The record shows that required depth bring drill well to the and did not in a producing depth' at from well a lesser within one year attempt date the execution He did not lease. one-year period, to drill another well after the did years not institute this action until than five after more expiration one-year period. of the It will be remem- years bered that the lease for term of a definite five long from- the date its execution and as thereafter as gas produced oil or or either of them from said land appellant’s right posses- the lessees. Hence to the purpose exploring gas sion of the land for the for it and oil had ended the lease terms and the itself, rightfully court held that he was not entitled to maintain ejectment o,f an action to recover the purpose exploring land gas of further it for *8 and oil. brings
This to a us consideration of that branch of damages the case where claims on account of having prevented drilling been from the well the assignors. fraudulent of his will acts It be remembered years that the in leases were remain force five and as longer gas produced being much oil was from as the land the lessees. The leases also contained a clause that the lessees should drill test a well under the condi- prescribed tions and if leases, that, well said was year not drilled within one from the date of the execu- leases, tion оf the leases would no effect. According to the version of ap- the transaction assignment pellant, an he toot the leases from Con- yers- having ever Hunt without and seen the leased premises. drilling rigs, Conyers He had three and and represented Hunt kind to him that one of them would be the up drill test well with. rig upon He set this premises, and found that it the leased not Was- the kind necessary, account of formation on of the earth in territory. attempted purchase then that rig:, He rotary a necessary drilling operations the kind
which prom- a territory. friends from tliat He had secured part rig, first buying in the rotary ise him in to finance on land April, of the leases month about a before fin- expire. have drilling could He which he was should leases of the drilling the terms ished the test well under compliance within month, and this would Conyers time with the About terms of contract. his 3,000 on about of the lаnd secured leases from the owners assigned’to He him. acres of the block had been which they reported refused and backers, this fact to his rotary rig, com- procuring he was assist him in pelled premises. operations He the leased to abandon on drilling there- did not well, did not finish test attempt one. This after to drill another suit years he had aban- after commenced for more than six premises. drilling operations the lеased doned on comply leases If he with the terms operations rights drilling the test his to continue wells, expired. an ex- The leases contained under the leases press provision within was not drilled that, a test well if leases, year of the one from the date the execution By and of no effect. become null and void should ap- assignment to him, terms drilling opera- pellant for the cost of the became bound undertaking unsuсcessful, alone and, if the tion, he was successful, If it was loss. to sustain the parties The were his lessor. the result with share competent into with each and entered other, to contract assignment of the leases because contract for *9 satisfactory parties. to both There the contract was drilling rig nothing the of in the as to kind contract Conyers and to of Hunt to statement be used. .The purpose rigs adapted Hеnry to the of one his that merely expression opinion, and not a mat- an of Henry into contract to to enter ter of inducement assignment Conyers of the leases. Hunt for an with and comply failed to with terms of the "When rights drilling well, his were forfeited in the test leases expiration Conyers, one- after the to Hunt 148
year period. Mahoney, v. 145 Ark. 225 310, Lawrence Epperson S. W. 340; v. Helbron, 566, 145 Ark. 225 S. W. Hughes 345, 15 L. R. v. 296 Cordell, 757, A. Ark. 597; Alphin, 735; S. W. Drummond v. 176 Ark. (2d) S. 942. W. by Conyers
The new leases taken frоm the owners purport of the lands did not until to commence after the expiration assigned of the leases which had to been Henry. they very things If so, had in done nature of they could not have been effective until leases which assigned Henry expired by had been to had either their his, by comply terms or own failure to with the terms thereof. did any It not make difference what motive prompted Conyers might to take the new leasеs. He have thought Henry comply fail would to with the terms original drilling might well, or leases test by regain have been actuated a motive to of the premises prospects bringing leased because the oil Henry rights had become better. The the leased premises by him vested in the terms the leases were assigned which had to could not taken him, away any by subsequent leases,, whether executed nothing Conyers, persons. owners other There to or to is assigned original in the terms of the which were Henry prevented giving new the owners from any Conyers, upon leases to the or one take effect else, expiration original If the term of leases. Con- yers right had a new leases, to take the the effect that might upon securing financial assist drilling ance to finish ele his test well was an damages ag’ainst Conyers ment of and Hunt. There "was nothing original gave in the leases which lessees preference right assignee their to secure reneAvalsor Hence extensions leases. one had a .of go expiration secure new into effect after original operation leases, of the either of law or perform lessees failure the covenants and prescribed being pro therein. conditions This so, the
149 damages curers of the not be liable new would backers, appellant’s appellant, fi Mm to refused and, if loss fact, nancial of this it a assistance because remedy. without may by
It have fin- be, stated that he could him, as drilling financial ished the test well if he had secured period, first-year assistance within the last month of the give loss, but his failure to do so own and was his Conyers damages against him to recover by already Hunt. As have terms of the" seen, we the expenses drilling leases he well, the test bear the by and he was to loss occasioned alone suffer opinion failure do we of the his so. Therefore are properly that a verdict favor court directed appellees. ably interesting propositions of have been
Other law by sideg, on views we have discussed counsel both but the adopted we have it and the conclusions reached render pretermit unnecessary them, we determine opinion. discussion of them this judgment It that must be affirmed. follows suggested rehearing). (on It has J.,C. Hart, rehearing petition in this should be case upon opinion necessary granted effect of the because style Henry Refining appeal, v. under the the first Gulf (2d) 687, Ark. S. W. Louisiana, Co. Henry entitled to some amount of recover hold that damages. not think so. doWe sustained demurrer court case circuit
In that complaint complaint. prayer оf the was that The judgment for the title and restitution of the have com- leasehold estates described damages wrongful for the plaint withhold- ; that he re- property defendant; ing of said gas damages against defendant oil and for the cover opinion In wrongfully them. of this converted execution second leases that the it was held court Henry’s assignor, Conyers, of the land owners *11 150' Henry right convey to no effect to further
could have conveyed already by him the terms thаn had been to judgment the first There restitu- leases. was-no for the possession Henry, tion of of the leasehold to estates expired by because leases had their own Hence his terms. possession he not to recover of the leasehold entitled was damages wrong- He was to estate. not entitled for possession withholding’ premises, ful 'because his premises of the leasehold not interfered with until was expired. his leases was no either There actual eviction, possession or constructive. His actual of the leasehold estate not was interfered with. There no construc- by paramount tive eviction assertion of a title in a person third Henry. which could have had the effect oust person by
Both leases were executed the same as Conyers having After Hunt, owner. made a lease to assigned duly Henry, pos- which all it that was by grant subsequent sible for the owner to- lease premises conveyed such in the leased as not by prior lease. The owner of the land, after grant- anything execution of could not in lease, subsequent previously granted lease which had Henry, having the first lease. Hence been ousted premises, from the of the leased was not en- damages titled on that account.
Again, judgment against damages he asked gas wrongfully by dеfendants for oil and converted them. already As we seen, the lessees under the second premises enter the and drill oil wells until assigned after the which had Henry had expired by their own terms. upon covers ap-
This all issues raised the first peal. Upon the remand of the case, filed what he terms a complaint. second amended and substituted In alleged Conyers it gether is conspired it and Hunt to- prevent to hinder and him completing from a well which he had premises. started drill on the leased He damages asked for prayer on that account. His in that complaint prayer com his contained is the same as the plaint appeal. We have treated on the former prayer complaint conform as amended so as to opening- case, counsel statements made intro ag-reement as the evidence treated which was at duced the trial. ap- opinion present
Complaint our is made of peal taken that the new leases because the said court *12 purport Conyers to owners of the land from the expiration the which of commence until after the “pur- assigned Henry. the word to The use of had been opinion, port”' in might and, out the left of any misapplication only of event, could be said to be say, use this to the of terms. the court meant What appears expressed it is that the substance as word, it might every person on the face of who read the lease to legal import appearance not it, and means the of the say there the In we meant to that leases. other words, they express showing language was no in the leases that legal impair obligation of intended to were by the of the land had been executéd owners leases which Henry. Conyers by them to to and Hunt and transferred The month before new leases were executed about a expiration They period do of fixed in the old leases. following: agreed lease is contain the “It that this- years shall in for a term of five remain force and effect .gas, long date, from and as thereafter as oil produced of from land the les- them, either is said legal import these We dо not think that the of sees/’ impair in words an the terms intent to Henry. such Indeed, which had been transferred an attempt At the of exe- would have been futile. time Henry possession leases, cution of in the new premises complaint, described in and such leased only possession world, was notice all the of- right, possession interest, itself, title but also of and. they may party possession. whatever be* 152 Conyers
In addition to this, Hunt had actuаl Henry prem- notice the leased was- paramount ises. There no assertion of title parties third aas result of which was ousted from possession. principles Mauney,
The announced Millar v. upon by Ark. appel- 498,W. relied S. counsel for application present lant, have no in the case. In that case by appellees posses- there a suit as owners to recover Appellants sion of certain leased lands. demurred chancery complaint, and made motion to to the transfer they They up also filed an answer in which court. set way appellees had in their thrown certain obstacles prevented performing them which from the covenants appellees, by that,-if their leases. The court held their instituting lawsuits, conduct or in other manner, put way obstacles in the which caused them perform appellеes fail covenants, their then would estopped setting up from an abandonment for- or. appellants. Appellees feiture based their *13 possession ap- ground recover their lands on that pellants, as had abandoned or lessees-, forfeited their right premises. Appellants of the leased appellees estopped by claimed were from conduct assert- ing they rights that had or abandoned forfeited their premises. the leased Here the owners of the leases new made no part claim of on abandonment or forfeiture Henry. They did not enter the land under the new leases until after the term of the first had leases ended. Henry only drilling during claims that he did finish not year money the first he not because could borrow after the execution of the new leases. present by ap-
In nothing case there was done pellees prevent drilling to from for oil under assigned the terms of the leases which were to him. any paramount was no There assertion of title third parties. same had The landowner executed both leases. In assigned order to extend leases which had been to provided beyond leases, Henry in. the the definite term engaged required Henry to that he was show premises, production on the leased of oil of his term, at definitе Hence, to the end failed do. expired by not think their terms. We do own leases legal damages simply for he has a cause shown establishing new the owners of the land executed expiration Conyers about month before the to leases as- had been the leases which of the definite terms Henry. signed did leases to The execution these new prevent drilling exploring for He oil. him from not only that, be case. claims claim such to He does not money promised persons had to lend him who when heard of the execution of these new his work continue they money him the with to furnish which leases, refused drilling operations. carry on his original opinion, that the execu- adhere to our We 'Conyers enlarge of the tion new first leases; a freehold estate under the opinion majority court is of that the Henry’s drilling backers to furnish him failure ex- penses new on account of execution of the leases does legal against appel- of action constitute cause damages. The which were transferred lees Henry their and he is not en- ended own terms, damages appellees from the for the al- titled recover wrongful taking premises leged of oil from the leased alleged of their new leases or for the under the terms money preventing borrowing him conspiracy in from with operations. drilling carry on his which to Therefore rehearing petition for a will denied. Mehaffy Humphbeys dissent.
Justices Wood,