100 P. 72 | Kan. | 1908
The opinion of the court was delivered by
The facts found by the court indicate that the lessees under the Evans lease violated the provisions thereof to such an extent that the lessors had a right to declare a forfeiture and terminate the lease. The language of the instrument itself, however, does not appear to be such as would work a termination
“The occurrence of a ground of forfeiture does not of itself work a forfeiture. A condition subsequent in a lease that upon neglect of the lessee to perform his covenants the lease shall determine and be void does not render the lease absolutely void upon a default of the lessee, but merely voidable at the election of the lessor, so that if he elects to waive the forfeiture the lessee is bound as though there had been no breach of condition. So, where the statute declares that the lease is forfeited on the occurrence of certain events, it merely means that it may be forfeited by the lessor on such occurrence.”
(See, also, Alexander v. Touhy, 13 Kan. 64.)
While a lessor may terminate a lease when facts exist which give him that right, the law does not require him to do so. If he prefers to have the lease continue, he may waive the right of forfeiture. The waiver may be in writing, or it may be evidenced by conduct which indicates such a purpose. When Dow and wife made the written request upon the gas company to lay pipe to, and furnish gas at, the leased premises, neither party had declared to the other that the lease was at an end, and neither party at that time seemed to regard it as terminated. It was competent then for them to renew it, and competent for the lessors to waive all past delinquencies on the part of the lessees, and we think the written request and the compliance therewith had that effect. Whatever the prior conditions may have been, th'e parties by this act re^ néwed the lease and infused it with its original vigor. Nothing occurred after this waiver of the lessors to impair the vitality of this instrument, and at the time of the trial the rights of the lessees thereunder were the same as when they first began furnishing gas in
The fact that the filing of this lease was not properly-indexed by the register of deeds has not been suggested as a fact which in any manner affects its validity. It was otherwise duly recorded, and therefore imparted, notice as fully as if it had been properly indexed. (Poplin v. Mundell, 27 Kan. 138; Lee v. Bermingham, 30 Kan. 312, 1 Pac. 73.)
The contract between defendants G. H. and Dollie Dow and the plaintiff, C. C. Harris, provided in substance that if no well was commenced within six months the instrument should become void, unless the party of the second part should pay annually thereafter in cash the sum of one dollar per acre on the leased lands. No well was commenced within the time stated, and to save the life of the contract Harris paid the stipulated rent up to August 27, 1906. The trial of the case ended July 3, 1906, but the hearing of motions delayed the rendition of final judgment until October 16, 1906.
The court in its decree recites specifically, as if to emphasize the fact, that this contract between Harris and the Dows was a good and valid and subsisting and binding contract, and that the plaintiff had complied with its conditions on his part, and that the same was in full force and effect on July 3, 1906; and again it is recited :
“And it is further by the court considered, ordered, adjudged and decreed that at the time of the trial of this action, to wit, July 2 and 3, 1906, and at all times theretofore, the plaintiff had complied with the obligations and conditions of the said grant . . . executed and delivered to the plaintiff by the said defendants G. H. Dow and Dollie Dow, and that the said grant and contract . . . was in full force and effect on July 3, 1906; and it is further considered, ordered, adjudged and decreed by the court that on said date said grant was in full force and effect, and that said plain*174 tiff’s right to the possession of said premises under his grant was, on said July 3, 1906, good, valid, binding and subsisting and in full force and effect, and that for the purposes therein named the right to produce the oil, gas and minerals in or under said premises by the terms of said grant . .• . is declared to be in plaintiff, subject, however, to the rights and privileges of the said Dow and Dow under said grant, and said defendants and each of them, except Smith and Swan, are hereby enjoined from interfering with the plaintiff in the possession of the gas-well thereon and the production of gas and oil under the terms of the contract.”
It appears from'this that the court, in October, 1906, entered its decree, based wholly upon a contract which, though valid and subsisting on July 3, 1906, was certain by its own terms to lapse and become void August 27, 1906, unless continued by the act of the plaintiff. There are no facts in the evidence or elsewhere in the record to indicate that the plaintiff did anything to prevent this lapsing of the contract, or to show that on the day the decree was entered in favor of the plaintiff he had any subsisting rights in the premises whatever. Even the presumption which is usually indulged in favor of a judgment is swept away here by the fact that the decree shows upon its face that the contract upon which it rested had already expired, unless its life had been preserved by payment of the stipulated rental on or before August 27, 1906. The burden of proof was upon the plaintiff to establish this fact before he was entitled to a decree. No such showing was made.
Upon this situation, Dow and wife, the owners of the land, were enjoined from interfering in any way with Harris in producing gas and oil upon said premises. No limitation is placed upon Harris’s right to enjoy this privilege; it is not provided in the decree that his right in the future will depend upon his performance of the conditions of the contract on his part. The words “subject, however, to the rights and privileges of the said Dow and Dow under said grant” may have
We think the injunction against Dow and wife erroneous, first, because no complaint is made against them for having done, or intending to do," anything toward encroaching upon or limiting the rights of Harris ; second, the evidence entirely fails to show any reasonable cause for such an order; third, it does not appear from the record that at the time the decree was made Harris had any rights whatever in the premises to be protected.
The entire decree is reversed, and the cause remanded for a new trial.
