Farlow v. Frankson

• Decision Date: 07 January 1922
• Docket Number: 23,463,23,365
• Citation: 110 Kan. 197,203 P. 299
• Parties: WILLIAM C. FARLOW and BLANCHE FARLOW, his wife, Appellants, v. THOMAS FRANKSON, Appellee. E. R. TUCKER and L. B. TUCKER, his wife, Appellants, v. THOMAS FRANKSON, Appellee
• Court: Kansas Supreme Court

203 P. 299

110 Kan. 197

WILLIAM C. FARLOW and BLANCHE FARLOW, his wife, Appellants, v. THOMAS FRANKSON, Appellee.

E. R. TUCKER and L. B. TUCKER, his wife, Appellants, v. THOMAS FRANKSON, Appellee

Nos. 23,365, 23,463

Supreme Court of Kansas

January 7, 1922

Decided January, 1922

Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.

Judgment reversed and caused remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. OIL AND GAS LEASE--Provision for Advance Payment of Rents and for Termination of Lease Interpreted. In an oil and gas lease which contained the common provision that all rights under it should cease if a well were not begun within a certain time unless the lessee should pay a quarterly rental of $ 140 in advance, a clause was added to the effect that the lessee agreed to pay $ 140 each three months until the royalties should exceed that amount. It is held that the additional clause did not impose upon the lessee an absolute obligation to pay rent, but is to be interpreted as meaning that if he elected to continue the lease in force by paying rent such payments should cease whenever the royalties should exceed the amount named.

2. SAME--Provision of Lease Relating to Its Surrender Not Complied With. Under an oil and gas lease providing that it shall cease to be effective if no well is begun within a certain time, unless a specified periodical rent is paid in advance, and that the lessee may at any time bring the lease to an end by surrendering it and paying one dollar, where the lessee commences the payment of rent he is liable therefor until he avails himself of the surrender privilege.

3. SAME. The privilege of the lessee to end his liability under an oil and gas lease by surrendering it is not exercised by filing a release with the register of deeds, when the lessor has no notice or knowledge thereof.

John Bertenshaw, of Independence, for the appellants.

J. B. Tomlinson, of Independence, for the appellee.

OPINION

MASON, J.:

William C. Farlow and his wife on May 15, 1920, sued Thomas Frankson for rent claimed to be due upon an oil and gas lease executed by them to him on September 15, 1917. A demurrer to the petition was sustained, and the plaintiffs appeal.

The lease by its terms was to continue in force for five years and as much longer as oil and gas should be found in paying quantities. The paragraphs upon the effect of which the case turns read as follows:

"Provided, a well is not commenced on said premises within three (3) months from the date hereof, unavoidable accidents and delays excepted, then this grant shall become null and void, unless second party shall pay to the first party a quarterly rental of One Hundred Forty ($ 140.00) Dollars, payable quarterly in advance, for each three (3) months. . . .

"All pipe lines are to be buried below plow depth on plow ground. Second party agrees to pay One Hundred Forty ($ 140.00) Dollars each three (3) months until royalties exceed this amount.

"It is further mutually agreed by and between said party of the first part and said party of the second part that said party of the second part shall have the right to surrender this lease to said party of the first part at any time upon payment of One ($ 1.00) Dollar and that thereupon this lease shall cease and determine and become absolutely null and void and no longer binding upon either party."

No well was ever begun, but quarterly rentals were...