Butcher v. Greene

• Decision Date: 18 June 1912
• Docket Number: No. 7,647.,7,647.
• Parties: BUTCHER v. GREENE.
• Court: Indiana Appellate Court

50 Ind.App. 692

98 N.E. 876

BUTCHER

v.GREENE.

No. 7,647.

Appellate Court of Indiana, Division No. 2.

June 18, 1912.

Appeal from Circuit Court, Adams County; Jas. T. Merriman, Judge.

Action by Samuel A. M. Butcher against Hamer H. Greene. From a judgment for defendant on demurrer, plaintiff appeals. Affirmed.

S. A. M. Butcher and Clark J. Lutz, for appellant. Peterson & Moran, for appellee.

ADAMS, P. J.

[1] This appeal involves the construction of a written agreement, and the question for determination is whether the contract sued on is a lease of an option. The contract, omitting the immaterial parts, is as follows: “This indenture, made this 26th day of May, 1903, by and between S. A. M. Butcher of Adams county, in the state of Indiana, party of the first part, and Hamer J. Greene, party of the second part, witnesseth: That, in consideration of the sum of ten dollars in cash, lawful money of the United States, this day in hand paid by the said party of the second part to the said party of the first part, the receipt whereof is hereby acknowledged, the said S. A. M. Butcher, party of the first part, hereby grants unto said party of the second part all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of operating and drilling for oil and gas, and to erect and maintain all buildings and structures, and lay all pipes necessary for the production and transportation of all oil or gas taken from said premises; excepting and reserving, however, to the first party the one-sixth part of all oil produced and saved from said premises, to be delivered in the pipe lines to which said second party may connect his wells, viz., all that certain tract of land *** containing sixteen acres, more or less. To have and to hold the above premises for and during the term of five years from this date, and as much longer as oil or gas is found or produced thereon, or a rental paid according to the terms of this lease on the following conditions: *** In case no well is completed by August 1, 1903, from this date, this grant shall become null and void, unless second party shall pay to said first party a rental at the rate of five dollars for each month thereafter such completion is delayed, for the term of years above mentioned, to be paid at the end of each month. Second party agrees to drill one additional well after the completion of the first at intervals of six months, one well to be completed in six months after the time of the completion of the first, or forfeit the lease, as to the undrilled portion. Each well to hold eight acres, or to pay the rental as above stated, at the option of the first party. It is further hereby expressly agreed between all the parties hereto that said party of the second part shall have the right to hold said lease for the term above mentioned, if said rental is promptly paid when due; and the said sum of ten dollars this day received by the said first party from the said party of the second part is the consideration for the right of the party of the second part to pay said rental and hold said lease during said term or until said wells as above provided are completed.”

It is averred in the complaint that the defendant on the 26th day of May, 1903, took possession of said real estate by virtue of and under said lease, and has ever since had, and now has, the possession of the same; that defendant wholly failed to drill a well on the real estate described prior to August 1, 1903, and has ever since failed to drill any well or wells on the premises, all without fault of the plaintiff; that on the - day of October, 1903, appellee paid...