Bruner v. Hicks

• Decision Date: 06 December 1907
• Citation: 82 N.E. 888,230 Ill. 536
• Parties: BRUNER et al. v. HICKS et al.
• Court: Illinois Supreme Court

230 Ill. 536

82 N.E. 888

BRUNER et al.

v.HICKS et al.

Supreme Court of Illinois.

Oct. 23, 1907.

Rehearing Denied Dec. 6, 1907.

Appeal from Circuit Court, Crawford County; E. E. Newlin, Judge.

Bill by Andrew Bruner and others against Frank Hicks and others. David C. and Mary E. Brubaker intervened as defendants, and also filed a cross-bill, as did the other defendants. Decree for defendants, and interveners and complainants appeal. Affirmed.

C. S. Conger, J. C. Maxwell, McCarty & Arnold and Brownlee & Browne, for appellants.

Parker & Newlin and Jay A. Hindman, for appellees.

This was a bill in chancery filed by Andrew Bruner, John Righter, and W. G. Skelly, in the circuit court of Crawford county, against Frank Hicks, John Kerr, John W. Smith, Lem Neely, David C. Brubaker, and Mary E. Brubaker, to enjoin the said Hicks, Kerr, Smith, and Neely from sinking or drilling any well or wells for oil or gas upon a certain 36-acre tract of land located in Crawford county, by virtue of a certain lease bearing date April 5, 1905, made by said David C. Brubaker and Mary E. Brubaker, the owners in fee of said premises, to said Frank Hicks, and which lease had in part been assigned by Hicks to Kerr, Smith, and Neely, upon the ground that said David C. and Mary E. Brubaker, on the 8th day of December, 1905, had executed a lease of said premises for the purpose of mining and operating for oil and gas, and laying pipe lines and building tanks, stations, and structures thereon to take care of said products, to one George D. McCarty for the period of 10 years or so long as oil and gas might be found on said premises, which lease had been assigned to Bruner, Righter, and Skelly, and which lease, it was alleged, contained a release and waiver of the homestead rights of David C. and Mary E. Bruner in said premises, and was entered into by said McCarty with said David C. and Mary E. Brubaker, and assigned to the said Bruner, Righter, and Skelly, and recorded in the office of the recorder of deeds of said county, without notice to them, or either of them, of the fact that said lease of April 5, 1905, had been made by said David C. and Mary E. Brubaker to Frank Hicks, and which lease to Hicks, it was averred, was void by reason of the fact that said premises were of less than $1,000 in value, and were occupied by said David C. and Mary E. Brubaker as a homestead, and the homestead rights of David C. and Mary E. Brubaker therein were not waived or released in said lease, and that the premises described in said lease were so imperfectly described therein that they could not be located or identified as the property owned by David C. and Mary E. Brubaker.

A demurrer was sustained to the bill, whereupon a supplemental and amended bill was filed by said Bruner, Righter, and Skelly, in which they omitted to name David C. and Mary E. Brubaker as defendants, and from which they also omitted all averments in regard to the homestead rights of David C. and Mary E. Brubaker in the premises, and averred that the complainants had been let into the possession of said premises by David C. and Mary E. Brubaker under the lease of December 8, 1905, and that they had made valuable improvements on said premises. The misdescription of the premises in the lease of April 5, 1905, and the want of notice to McCarty and his assigns of the lease of April 5, 1905, at the time of the execution of the lease of December 8, 1905, were also averred, which averments were relied upon to establish complainants' rights under the lease of December 8, 1905, and to avoid the rights of Hicks, Kerr, Smith, and Neely under the lease of April 5, 1905.

On their petition David C. and Mary E. Brubaker were allowed to intervene as defendants to said supplemental and amended bill, and they thereupon filed an answer thereto. They also filed a cross-bill, in which they averred that at the time the lease of December 8, 1905, was made, and at the time of the filing of their answer and cross-bill, said premises were owned in fee by them; that they occupied the same as a homestead; that said premises, at the time said lease was executed, were in value not to exceed $1,000; and that they had not waived or released their homestead in said premises or abandoned the possession of said premises or surrendered the possession of said premises voluntarily to the complainants, and asked that the lease of December 8, 1905, be canceled and set aside as a cloud upon their title, and that the complainants be enjoined from interfering with their possession of said premises. The other defendants to the supplemental and amended bill also filed an answer and cross-bill. By their cross-bill they asked that the description of said premises in the lease of April 5, 1905, which was admitted to be incorrect, be corrected, and for other relief.

The cross-bills were answered, and replications were filed and a trial was had in open court, and the chancellor entered a decree setting aside and canceling as a cloud upon the title of David C. and Mary E. Brubaker the lease of December 8, 1905, and the assignment thereof to the complainants, and perpetually enjoined the complainants from going upon said premises to prospect for oil or gas, or otherwise, and from removing therefrom any property placed thereon and in the wells drilled by them, and from removing any oil therefrom, directly or indirectly, by themselves, agents, etc., and corrected the description of the premises contained in the lease of April 5, 1905, as...