W. E. Russell and wife filed suit in the district court of Erath county against B. J. Johnson, B. S. Millher, and A. M. Burden to cancel a certain oil and gas lease executed by Russell and wife to B. J. Johnson July 26,1918. Plaintiffs alleged that at the time said lease was given the defendant Johnson represented to the plaintiff W. E. Russell that he was going to drill a well on a block of leased land, of which plaintiffs’ рroperty would be a part if he should lease it within 90 days, and would begin the actual drilling of a well for oil and gas within three miles of plaintiffs’ land; that Johnson represented that he was Hot a speculator in oil and gas leases for commercial purposes, but took the same with the intent of drilling for oil and gas; that only $1 was paid plaintiffs for the execution of this lease, which nominal payment did not constitute the true consideration, but that the true consideration was the promise on Johnson’s part to drill the well, etc. Plaintiffs further alleged that the premises described in said lease constituted the homestead of plaintiffs, and that the notary takin'g the acknowledgment of both plaintiffs was the nephew оf W. E. Russell, and hence the lease was void. Other allegations were made, but the above statement will suffice for the present.
B. S. Millner was discharged with his costs, and a judgment was rendered for plaintiffs under a peremptory instruction. Johnson alone appeals. Appellees urge that the judgment cannot be disturbed for the following reasons. *353 to wit: (1) That it appears that the lease was dated July 16, 1918, and executed July 26, 1918, and that the lease provides that, “if no well he commenced on said land on or before the 16th of July, 1918, this lease shall terminate as to both parties,” etc.; (2) that the evidence shows that the premises were the homestead of plaintiffs, and that the acknowledgment of plaintiffs wеre taken by W. 3?. Russell, a nephew of Dr. Russell.
Plaintiffs attached a copy of the lease to their petition, in which the date when the lease should expire unless rental should bе paid for another year was given as July 16, 1919. No pretense was made in the testimony to show that the last-named date was not the true date, while the statement of facts doеs show that the lease would expire July 16, 1918, in the event no rental was paid. In fact, no reference is made as to the date. Hence it is evidence that the date given in the statement of facts is a mistake in copying the lease, and we will so hold,
■ “All the property that is owned by myself and wife is this farm and the home on which we live in Duffau — my house and lot. I have lived at Duffau 22 years. Duffau is not an incorporated town or village. There are 2 acres of lаnd, more or less, in the lot on which I live and 150 acres in this other tract. The two pieces of property are approximately one-half of a mile apart. * * * A pаrt of it [my contention] is because the land is a part of my homestead.”
These two bits of evidence seem to be all of the evidence on the question as to the leаsed premises being a part of the homestead. It is true that a piece of land separated from the tract of land on which the dwelling is Situated may be so used as to make it a part of the homestead, but the evidence in this case does not establish that fact so as to justify a peremptory instruction. Effinger v. Cates,
Appellees in their briеf set out the four grounds alleged in their petition for cancellation of the lease, and they are as follows: (1) The same was procured by fraud; (2) that the same was without consideration; (3) that the consideration,, if any there was, for the execution of the lease, had wholly failéd; (4) that the lease was void because the acknowledgment оf appellee Mollie Russell was taken by a notary public related to her within the third degree. We have discussed the fourth ground alleged and relied on, and in view of what we have heretofore said as to the condition of evidence relating to the question of whether or not the premises in controversy constituted a homestead, we must hоld that the judgment upon a peremptory instruction cannot be sustained, ■ by reason of the fact that Mrs. Russell acknowledged the instrument before a notary who was related tо her within the third degree by affinity. A conveyance by husband and wife to land to which the wife has no separate title, and which is not a homestead, is not void or voidable by reason of the fact that the wife has not acknowledged said instrument, or, if she has acknowledged it, that her acknowledgment is defective. Jacks v. Dillon,
Considering the first, second, and third grounds together, the evidence shows that $1 was paid at the time the first lease was executed. This lease was made in the spring of 1918. In July, 1918, and about the 26th day of the month, Johnson returned to Duffau аnd asked Dr. Russell if he would not give him a second lease in lieu of the first, stating to him that a Mr. Eddy and his associates were having blocked up certain leases, and that they would be drilling within 90 days оr by the 1st of October. Dr. Russell stated that Mr. Johnson told him that he wanted to turn this tract of land to Mr. Eddy in the drilling contract, with the block that Mr. Eddy had; that he showed to Dr. Russell a letter from Mr. Eddy addressed to Barry and Johnson which stated that he (Mr. Eddy) would like to get a lease on Dr. Russell’s property which contained more favorable terms than was contained in the first lease; that Mr. Eddy would not accept an assignment of the first lease because it contained a provision that the lessee had to drill on this land within a year, and he wanted a five-year contract. Dr. Russell stated:
That he asked Mr. Johnson if he would promise to turn this lease oven to Mr. Eddy, and Johnson replied, “You need not be uneasy; this land will be turned to Mr. Eddy for drilling;” that later on, after he did not turn it over to Mr. Eddy, he went down to Hico to see him, about the middle of September. “I got suspicious and went down and asked Mr. Johnson where my lease was, and he says, ‘You need not be uneasy about your lease.’ I said, ‘You promised to turn it to Mr. Eddy.’ He said, ‘Yes.’ I said, ‘Why haven’t you done it?’ He says, ‘I am going to give you another well; I have got the stuff down there; tools and tim-' bers are down there; it will be right close to you, and this will put you between two wells.’ ”
*354 He furthér testified:
“The second day, or a few days after that, he was down there and asked me if I would let Mm have my abstrаct, .and I told Mm, ‘Thunder, no,’ and I told Mm I was going to bring suit at once; told Mm it wasn’t to be bartered and sold that way; that I was in a drilling contract; and it wasn’t supposed to be handled for merchandisе. Then I would like to state that a few days after that I told Mm the suit was filed, tie laughed, and explained afterwards that he thought it was a joke, but he found out the suit was filed. He said he wanted thе abstract to get up so he could sell it right quick. If he had the abstract, he said, he could turn it right now. I filed suit as soon after that as I could get the man to see after the papеrs for me, and I told him that the suit was filed; that I was suing for the contract.”
The evidence of Dr. Russell showed that Eddy and his associates had drilled within three miles of plaintiffs’ land prior to the 26th day of October, 1918. But it is not shown that defendants had anything to do with the drilling of that well.
However, we conclude that appellant’s third assignment, directed tо the peremptory instruction, must be sustained, and the judgment reversed, and the cause remanded, and it is so ordered.
Reversed and rernanded.
¡¡&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes