Hester v. O'Rear

• Decision Date: 19 February 1924
• Parties: HESTER ET AL. v. O'REAR.
• Court: Kentucky Court of Appeals

259 S.W. 41

202 Ky. 176

HESTER ET AL. v. O'REAR.

Court of Appeals of Kentucky.

February 19, 1924

Appeal from Circuit Court, Warren County.

Action by Mrs. Virginia A. Hester and another against J. H O'Rear. Judgment for defendant, and plaintiffs appeal. Affirmed.

John L Stout, of Bowling Green, for appellants.

Rodes &amp Harlin, of Bowling Green, for appellee.

McCANDLESS J.

Mrs Virginia A. Hester and her husband, L. S. Hester, instituted this equitable action in the Warren circuit court, alleging her ownership of two small tracts of land containing an aggregate of 37 1/2 acres, and seeking to cancel an oil lease held thereon by J. H. O'Rear, and to quiet the title thereto. The names of the parties grantor appearing in that instrument are L. S. and W. A. Hester, and it purports to have been executed and acknowledged by them before Charles E. Locke, notary public, July 1, 1919; the grantee being Joe Hieatt.

This lease was recorded on the 13th day of September, 1919. In June, 1920, Hieatt executed and acknowledged an assignment of an one-third interest each to C. E. Locke and S. J. Tichenor. On August 23, 1920, Hieatt, Tichenor, and Locke assigned the lease to J. H. O'Rear; this being duly acknowledged and recorded.

Plaintiffs claim: That on the 29th day of May, 1919, Hieatt and Locke visited their residence and stated to them that they were representatives of the Standard Oil Company, and if they could get as much as 1,500 or 2,000 acres they would take leases and begin drilling shortly. They were not taking leases at that time but wanted a written agreement from plaintiff that she was willing to lease. Mrs. Hester did not want to sign this agreement, but after much persuasion she was induced to and did do so, but that Mr. Hester was at the house only a few minutes and left for his work without signing it or authorizing his wife to do so. That neither of them acknowledged any paper. That some time in July Locke and Hieatt returned and Locke came to the house and threw a dollar on the table, telling Mrs. Hester that was for her lease, and over her protest left it. That she learned later that the lease had been recorded, and the following spring the lessees on two different occasions sent to her a check for $9.25 as quarterly payments of the rental. This was brought to her by neighbors; she did not want to accept these payments but after much persuasion did so. That in August Mr. A. S. Walker of Bowling Green and some other gentlemen visited the plaintiff and induced her to accept $500 as the consideration for a new 90-day lease and to accept $18 then due as rental on the former lease, this under an agreement that the drilling should begin within 90 days. Such is the testimony of Mrs. Hester, and she is corroborated as to the first conversation by her niece, who states that she was present, and indirectly by others in the neighborhood as to conversations with Locke and Hieatt. An objection was sustained to the competency of L. S. Hester as a witness.

On the other hand it is stated by Locke and Hieatt that at the time that neighborhood was "wild cat" territory. Hieatt wanted some leases if he could get as much as 1,500 or 2,000 acres, and went through to ascertain if this acreage could be secured. Mrs. Hester was agreeable, but no paper was signed at that time; that they went back on the first of July. In the meantime Hieatt had filled a blank lease which Locke carried to the house; Hieatt remaining in the machine about 40 or 50 feet distant. The lease was fully read by the parties and signed and acknowledged by Mrs. Hester. Mr. Hester requested her to sign his name, which she did, and he also acknowledged it, and that no other paper was there signed; a consideration of $1 being paid at this time. Locke testified fully to these facts. Hieatt could not hear the conversation, but says that he could see all that was going on, and is positive in his declaration that the instrument was signed and acknowledged at the time by both parties. It is further shown that Hieatt sent quarterly checks for the rental in the spring and summer of 1920 to Mrs. Hester by her neighbors, and two of these have testified. They appear to be gentlemen of character and standing, and both of them state that while Mrs. Hester grumbled about the amount she was receiving she did not claim any invalidity in the lease, and accepted the checks in payment of the rental without any insistence on their part.

It is further shown: That the parties negotiated the lease to the defendant O'Rear for the sum of $5,500. He had A. S Walker, a gentleman of the highest standing, to...