45 W. Va. 380 | W. Va. | 1898
Wade, on June 9, 189i, made a lease for five years to Me-Caslin of a tract of land for production of oil and gas, giving Wade one-eigdith of the oil and six hundred dollars per year for each gas well as rent, which lease was assigned July 2, 1890, by McCaslin to South Penn Oil Company. On April S, 1894, Wade made a deed, which, in its granting clause, granted to one Smith all the oil and gas in the tract, but the deed says that it was agreed that Smith had an option to buy at the end of five years the oil and gas in the tract, and on payment they were to be conveyed to him; and .the deed further states that it was on the condition that Smith should,, within, thirty days after the completion of a well, either pay Wáde one thousand two hundred and fifty-two dollars, or release and reconvey; and it further states that it was on condition to be void if a well should not be completed in five years, unless Smith should pay one thousand two hundred and fifty-two dollars before the expiration of that time; and it further provided that, if “the above lease become void,” then the oil and gas right should draw one dollar per acre yearly until “this option is paid in full, then deed to be made by parties of first part, or surrendered.” Smith assigned his rights under this instrument to the South Penn Oil Company, April 16, 1894. After-wards, July 31,1895, the South Penn Oil Company took from Wade a lease of the same land for production of oil and gas for the term of ten years, covenanting to pay Wade as rent one.eighth of the oil and five hundred and fifty dollars per year for each gas well. The company made no develop
There is no dispute of facts. The sole question in the case is as to the.effect of said papers.. There can be no question that the taking of the second lease was, by law, a surrender of the McCaslin lease by the company, as, if a lessee for life or years, or his assignee, take a new lease, of the reversioner, for a greater or shorter term than before, there is a surrender of the first lease. 2 Minor, Inst. 791; 2 Tayl. Landl. & Ten. § 512. But then comes the question, what is the effect of the second lease upon the option instrument? If it were a mere lease, it would be surrendered like the first lease; but it is not a lease. What is it? It is an option to buy all the oil and gas within five years of its date. Read by its four corners, it imports nothing else. If its strictly granting part stood alone, it would be an absolute grant, and, no doubt, the subsequent lease covenanting to pay a share of the oil would be binding on the lessee company, for there is the covenant to pay, and a lessee cannot deny his landlord’s title or his agreement to pay rent; and, even when one who is the real owner enters into a lease leasing his own land from another, this rule prevents him from setting up title in himself. 3 Tayl. Landl. & Ten. § 80. To bring the case under this doctrine, counsel for Wade contends that by the first lease and said option deed the company, at the date of the second lease, owned all the oil, and, taking the second lease, it is the case of a man making himself by deed a tenant to another of his own land, and he cannot deny his landlord’s title, or avoid the rent. This would be so were this option not a mere option,, but an instrument of abso
Afirmed.