Opinion by
We have just held in an opinion handed down that whether an instrument in writing agreeing to sell and convey real estate shall be considered as an absolute conveyance, or only an agreement to convey, or an option to purchase, depends, not on any particular words or phrases, but on the intention of the parties to be derived from the instrument itself by a consideration of all its parts, and when that is doubtful, from the circumstances attending it. This1 rule, as to conveyances generally, is as old as our state, but its application to the modern option is more recent. The soundness of the rule is in no way better proven than, in its application to options on real estate. Nearly all of the large transactions relating to the purchase of coal lands in the bituminous fields are conducted in this way, and there are about as many binds of options as there are persons engaged in that particular business. The method is a proper one and the benefits resulting to all parties are often substantial, and if the agreements are fairly and honestly made, generally satisfactory. But whether satisfactory or not, the law recognizes the right of a landowner to enter into such an agreement, and, in the absence of fraud, misrepresentation or mistake, will enforce the same according to its terms. The agreement in the present case, as indeed in almost every such case, contains words and covenants ordinarily used in absolute conveyances or in agreements to convey. Mitchell, the appellant, on his part agreed to sell and convey by deed of general warranty, all the coal and mining rights underlying the tract of land described in the agreement. McHenry, the appellee, on the other hand, agreed to pay, or cause to be paid, a certain sum per acre for each and every acre of coal therein contained, one-third at the time of the presentation and delivery of deed, one-third in one year, and the remaining third in two years, with interest from the date of first payment. If
Forfeiture clauses in optional agreements as a rule are independent covenants and do not relate to or depend upon covenants in other parts of the same instrument, and when so, they must be construed according to their own terms ; but when, as in the present case, the parties themselves in express terms provide in the option clause that the first payment shall be made as hereinbefore stipulated, and the covenant to which reference is thus made requires the presentation and delivery of a deed before payment can be demanded, the optionor cannot assert a forfeiture on the ground of failure to make the payment within the time specified, if he fails to first present a deed for delivery within that time.
In the case at bar we agree with the conclusion reached by the learned court below in which it was held that the notice given by appellee, within the time specified, of his election to purchase was sufficient under the circumstances to require ap
Decree affirmed at the cost of appellant.