110 Kan. 663 | Kan. | 1921
Lead Opinion
The opinion of the court was delivered by
On February 15, 1919, Nora C. Mollohan (then Nora C. Rodner) executed an oil and gas lease upon a forty-acre tract which passed by assignment to H. H. Patton. On February 27, 1920, she brought an action against ,Patton to have the lease declared forfeited, and to recover damages and attorney’s fees for his refusal to release it of record. She recovered judgment for $10,000 damages and $1,000 attorney’s fee, and Patton appeals.
“It is agreed between said parties that the second party shall execute a release and surrender of all rights under the aforesaid oil and gas lease and deposit the same in The First National Bank of Peabody, Kansas, in escrow. That said release and surrender so deposited in The First National Bank of*665 Peabody, Kans., shall b3^ said bank be delivered to the first parties unless the second party shall commence another well on said premises on or before Oct. 1, 1919, and within thirty days after any producing well is obtained which is an offset to the leased premises and shall prosecute the work of drilling such well diligently. In case the second party shall, on or before Oct. 1, 1919, and within thirty days after a producing well is obtained offsetting the leased premises, commence a second well on said premises, then and in that event, the failure of the second party to complete said first well to a depth of twenty-seven hundred fifty feet as provided in said lease shall be waived by the first parties.”
In behalf of the defendant it is argued that the commencement of the well was all that was necessary to save the lease from forfeiture; that if an agreement on his part to finish the well is to be implied, then there is also an implication that he was to be relieved from this obligation by the neighboring wells proving dry. This argument fails to take sufficient account of the provision that the instrument of release was to be delivered unless the work on the well should not only be begun within the time set but should also be prosecuted diligently. It cannot be said as a matter of law that the failure of two wells in the neighborhood made it certain that the well the defendant had begun would be 3^1^1688. No other way than by the diligent prosecution of this well had been provided by which the lease might be continued in force. In the absence of some agreement to the contrary the defendant's rights with respect thereto were lost when he failed to carry out this provision of the contract.
Here the plaintiff gave a notice such as that described in the amendment, including a demand that the defendant execute and record a surrender of the lease, but did not make any separate demand for such release. The defendant’ argues that the demand incorporated in the notice was without effect save for the purposes of the amended first section of the act, and that a separate demand was necessary as a preliminary to bringing the action; that the original first section required the discharge of a forfeited lease, while the amendment seeks to lessen the severity of such absolute requirement. We regard the demand for release made in pursuance of the amended section as a sufficient compliance with the provision of the last section of the act requiring such a demand to be made twenty days before an action is brought. It serves every purpose of the statute and advises the lessee as fully of the lessor’s claim as though it were written on a separate piece of paper and had no other function than to lajr ground for a suit. The statute does not require that the lessee be notified that he is to be sued — merely that at least twenty days before suit is brought a demand for a release be made. The addition to the original section does not relieve the lessee from the duty of causing the record to show that a lease has been forfeited where such is .the case, but provides additional machinery for carrying out the original purpose, by requiring affirmative action on the part of the lessee to prevent the discharge of the challenged lease. Such has been the effect given to the statute heretofore. (Cole v. Butler, 103 Kan. 419, 173 Pac. 978; Elliott v. Oil Co., 106 Kan. 248, 187 Pac. 692.)
The judgment is affirmed.
Rehearing
OPINION DENYING A REHEARING.
The opinion of the court was delivered by
The statute here involved is quite analogous to those rendering a mortgagee liable to damages and attorney’s fees for a failure to release the mortgage upon full payment. It is quite generally held, although there is some difference of judicial opinion as to the exist
The motion for a rehearing is overruled.