Hughes v. Franklin

• Decision Date: 10 February 1947
• Docket Number: 36282.
• Court: Mississippi Supreme Court
• Parties: HUGHES et al. v. FRANKLIN.

29 So.2d 79

201 Miss. 215

HUGHES et al. v. FRANKLIN.

No. 36282.

Supreme Court of Mississippi

February 10, 1947

Bee King, of Mendenhall, and Ernest L. Shelton, of Jackson, for appellants.

J. Ed. Franklin, Lamar F. Easterlin and L. C Franklin, all of Jackson, and J. B. Sykes, of Mendenhall, for appellee.

GRIFFITH, Justice.

Appellants W. F. Hughes and his brother, W. A. Hughes, were, on October 8, 1943, the owners as tenants in common of the land in Simpson County, Mississippi, here in question. W. A. Hughes was then temporarily in Baltimore, in the State of Maryland. Sometime during the month of September 1943, D. M. Yelverton who was in the business of obtaining such leases, approached W. F. Hughes at his home in the county where the land is located and offered to purchase an oil, gas and mineral lease on the land consisting of approximately 131 acres. W. F Hughes informed Yelverton that it would be necessary to communicate with his brother in Baltimore, and this was done by W. F. Hughes, who, in due time, was informed by his brother that it would be satisfactory with him that his brother, W. F. Hughes, make the proposed deal with Yelverton.

W. F. Hughes thereupon, and on the 8th day of October, 1943, went to the office of Yelverton and they arrived at an agreement, and on that day, October 8, 1943, Yelverton drew up the lease, dating it that day. It was promptly sent to the brother in Baltimore for his signature and acknowledgment. The brother in Baltimore promptly signed and acknowledged it and sent it to his brother in Simpson County, who took it to Yelverton, but the Baltimore acknowledgment was not in proper form, as Yelverton thought, and thereupon either the same instrument was returned to Baltimore for a corrected acknowledgment, or a new instrument dated as the original was dated, to wit: October 8, 1943, was sent, the witnesses not being certain as to whether the original was returned or a new instrument, a duplicate of the original, was then sent to Baltimore. The instrument thus last sent was properly signed and acknowledged in Baltimore November 20, 1943, and on arrival in Simpson County was signed and acknowledged by W. F. Hughes on November 26, 1943, and was delivered to and accepted by Yelverton on the latter day.

The only date anywhere in the lease preceding the signatures of the grantors was October 8, 1943, the opening sentence of the lease being, to quote, 'This agreement made this the 8th day of October, 1943', and the concluding sentence was, to quote, 'In witness whereof this instrument is executed on the date first above written,' there being no other date anywhere in the lease instrument, as already mentioned.

The lease was in the standard form commonly in use in this state, and was what is sometimes called an 'unless lease' or a delayed rental lease, that is to say, that unless drilling operations are actually begun within one year from the date of the lease, it will expire at the end of that year unless the lessee or his assigns shall pay on or before the expiration of that year, a stipulated annual rental and so on for each successive year through the primary period of ten years.

On December 3, 1943, Yelverton assigned or transferred the lease to appellee, the assignment or transfer stating in its opening recital, to quote: 'Whereas on the 8th day of October, 1943, W. F. Hughes' (and naming the original lessors in full) 'made and entered into a certain oil lease', etc., and appellee remitted the annual rental due in 1944 on September 16, 1944, stating with his remittance that it was for the annual rental for the period from October 8, 1944 to October 8, 1945. For the annual rental due in 1945, he failed to remit until November 5, 1945, his contention being that it was not due until November 26, 1945, and this by calculating the annual periods from the date of the delivery of the original lease, which was on November 26, 1943, instead of the date mentioned in the lease itself, all as already stated. The lessors decline to accept the tender made on November 5, 1945, on the ground that the lease under its express terms had expired on October 8, 1945, by reason of the failure to renew it by payment on or before October 8, 1945. The controlling question in this case is, therefore, whether the annual renewal date is October 8th of each year or whether November 26th.

Appellee filed his ...