Appeal from District Court, Callahan County; W. R. Ely, Judge.
Suit by John R. Dawkins against the Atlantic Oil Producing Company and others. Judgment for plaintiff, and the defendant company alone appeals. Affirmed.
HARPER, C. J.
Appellee brought this suit against appellant, Atlantic Oil Producing Company, and others, to remove cloud and to quiet title to certain oil leases. Tried before the court, and judgment entered for plaintiff as prayed for, from which the above-named appellant alone has appealed.
The facts out of which the litigation arose are substantially as follows: Richard Cordovant
being the owner of the lands, executed two oil and gas leases to J. R. Dawkins. Then the latter executed the following:
"The State of Texas, County of Callahan.
"Know All Men by These Presents: That this contract and agreement, made and entered into on this the 19th day of June A. D. 1918, by and between John R. Dawkins of Callahan county, Texas, party of the first part, and A. Lewis and E. E. McGinley of Tulsa, Okl., parties of the second part, witnesseth: That the said party of the first part has this day assigned to said parties of the second part certain oil and gas leases hereinafter described, the consideration for the assignment of said leases being as follows:
"The said parties of the second part agree to begin the drilling of a well for oil and gas within sixty days from this date, said well to be drilled on the east one-half of the southeast one-fourth of section number twelve (12) in block number five (5) of the Southern Pacific Railway Company lands in said Callahan county, Texas. Said parties of the second part agree to prosecute the drilling of said well continuously after it is begun and to drill the same to the depth of at least 3,500 feet, unless an initial production of fifty barrels of oil per twenty-four hours for one week is found at a lesser depth. Parties of the second part agree that if a showing of oil is found at a lesser depth than 800 feet that they will clean the well out and run bailer for twenty-four hours and test well for amount of production before proceeding further. Parties of the second part agree to start well with hole sufficiently large to use an eighteen-inch casing, and, also agree to give to said party of the first part all information as to the log of the well at all reasonable times. The leases transferred to said parties of the second part in consideration of the drilling of said well, being described as follows: [Here follows description of lands.]"
The uncontradicted evidence shows that at the time this writing was executed there was a verbal agreement that a failure to perform forfeited all rights to acquire a lease, and appellee testified that he executed no other assignment than the following:
On October 15, 1918:
"Now, therefore, for and in consideration of the covenants and agreements entered into in a certain contract made and executed on the 19th day of June, 1918, by and between John R. Dawkins, party of the first part, and A. Lewis and E. E. McGinley, parties of the second part, by reason of which said contract this assignment is now made, I, the said John R. Dawkins, do hereby bargain, sell, transfer, assign, and convey unto A. Lewis and E. E. McGinley all right, title, and interest that I have in and to said two leases and all rights thereunder in so far as they cover the following described tracts of land, to wit: [describing same lands as above contract.]
"And for the said consideration I do hereby covenant with the said A. Lewis and E. E. McGinley that I am the lawful owner of the said leases and all rights and interests thereunder; that I have good right and authority to sell and convey the same, and that all rentals and royalties due and payable thereunder have been duly paid; and that I will warrant and defend the same against the lawful claims and demands of all persons whomsoever.
"But it is expressly agreed that this assignment is made subject to the complete fulfillment of said contract, and in event said contract is not fully complied with, this assignment shall become void and the property hereby assigned shall revert to and become the property of John R. Dawkins."
October 17, 1918, Lewis assigned his interest to McGinley.
On the 8th day of July, 1918, McGinley and Lewis assigned to appellant, by writing —
"in consideration of one dollar and other valuable considerations all their right, title and interest of the original lessee and present owner in and to the said lease and right thereunder in so far as it covers [lands described] together with all personal property used or obtained in connection therewith to Atlantic Oil Producing Company, a corporation and its...