Hukill v. Myers et at.
| Decision Date | 28 April 1892 |
| Citation | 36 W.Va. 639 |
| Parties | Hukill v. Myers et at. |
| Court | West Virginia Supreme Court |
Where in an oil lease there is a clause of forfeiture for nonpayment of rental, hut the lessor consents that it need not be paid at the times when due and indulges the lessee and acquiesces in his failure to pay, then1 is no forfeiture for nonpayment.
In case of such a leasethe lessor by hi? conduct clearly indicates, that payment will not be demanded when due, and thus lulls the lessee into a feeling of security and throws him off his guard, and because of this he does not make payments when due, the landlord can not suddenly without demand or notice declare a forfeiture, and there is no forfeiture which equity would recognize, and, if there is in such ease technically a forfeiture at law, equity would relieve against it.
If, after such rental has accrued and is not paid, whereby a forfeiture exists, the lessor with knowledge thereof receives the rentals accruing after forfeiture, he waives and can not enforce the forfeiture.
0. Jokmon for appellant cited 3 W. Va. 143; Id. 586; 7 W.Va.454; Id. 678; 10 W. Va. 59; 11 W. Va.175; Id. 311; Id. 427; Id. 511; 15 W. Va. 90; Id. 444; Id. 666; 16 'W. Va. 724; Id. 791; 19 W. Va. 179; 21 W. Va. 1; Id. 83; Id. 124; 22 W. Va. 160; Id. 404; Id. 1; 24 W. Va. 82; 28 W. Va. 336; 30 W. Va. 198; 3 Atk. 3; Id. 141; 4 Mad. 408; 2 Paige 396; 4 Paige 537; 1 Bland 252; 5 Por. 10; 1 Johns. Ch'y 111; 10 Gill & John. 66; 5 B. Mon. 96; Id. 593; High Inj. 615, 698, 701, 715, 718, 722; 5 L. R. A. 731; 8 W. Va. 95; 1 Wall. 61; 60 Pa. St, 452; 13 W. Va. 20, 21; Id. 24; Id. 12; 102 U. S. 108; 2 Sto. Eq. Jur. §§ 1316, 1321; Pom, Eq. Jur. § 453; Tay. Land!. & Ten. § 495; 80 Pa. St. 142; 96 Pa. St. 310; 1 How. 211; 15 Wall. 477; 40 Cal. 384; Boyd c. Talbot 12 Ohio; 20 Conn. 331;
40 Mo. 449; 118 Mass. 118; Miller v. Sparks 4 Col.; People v. Dudley, 58 K Y.; 3 Ind. 132; 21 Ind. 454; Bacon v. Furniture Co., 53 Ind.; 11 Cal. 432; 100 Mass. 353; 49 Ill. 211; 98 Pa. St. 555; 13 Ohio St. 471; 44 111. 326; 8 Humph. 614; 6 Ired. 65; 81 Va. 118; 3 McCr. 463; 4 II. & McII. 153; 64 Mich. 172; 3 Cal. 334; 41 Col. 432; 4 Col. 304; 49 111. 211; 17 Johns. 66; 20 N. II. 36; 4K II. 251; 8 X. II. 477; 34 N. II. 400; 12 B. Mon. 462; 3 C. & P. 613; 2 B. & C. 490; 1 Sm. Lead. Cas. 109; 5 Serg. & P. 375; Co. Litt. 216 h., 218; 37 Pa. 525; 21 Hun. 26; 86 1. Y. 638; 27 W. Va. 785; (las Co. v. DeWitt, 130 Pa. St.; 3 Cal. 334; 4 Kent Com. 128; 1 Lorn. Dig. 338; 1 Min. Inst229; 2 Min. 229; 2 Bl. Com. 155; 2 Tho. Litt, 3, 4, 87, 88, 95, 97; Ad. Eject, 197; 9 Paige 481; 6 N. Y. 74; Code (1891) c. 71, s. 1; 7 W. & S. 41; 38 Pa. St. 346, 353; 6 Brier 262; 1 M. & \V. 402; 2 Russ. 170; 16 C. B. (N: S.) 421; 40 Mo. 449, 460; 118 Mass. 446, 447; 123 Pa, St. 491; Wills v. Gas Co., 130 Pa.; Galey v, Kellerman, 123 Pa. St.; Parmellee v. R'd Co., 2 Seld.; 37 Pa. St. 529; 20 Vroom 521; 22 Vroom 34; 7 T. R, 117; Tay. Landl. & Ten. § 297; 5 Co. 39; 5 Cush. 214; 11 Johns. 1; 9 Wend. 147; 3 Wend. 230; 1 Sm. Lead. Cas. 119; 37 Pa, St. 535; 3 Co. 64; 2 N. II. 168; 2 Seld. 74; 15 M. & W. 718; 39 X. II. 491; 12 Ired. 194; 6 Gill 343; 28 Minn. 437; 8 Eost. 324; 1 Den. 516; 5 Cush. 273; 53 Ind. 230; 63 Ind. 415; 40 Cal. 384;
41 Cal. 432; 1 Conn. 79; 15 Gratt. 329; 27 W. Va 663, 672; 1 Wash. Real Prop. 451; 8 Pick. 284; 3 Ind. 343; 45 Me. 359; 1 Sm. Lead. Cas. 114; 38 N. Y. 165; 16 Gray 309; 102 Mass. 328; 46 Barb. 122; 21 Wall. 44; 2 Kern. 131; 20 Ga. 563; 13 Cal. 107; 2 Seld. 506; 16 Pa. St, 140; 2 Dutch. 21; Id. 386; 31 Conn. 468; 24 W. Va 682.
W. P. Hubbard for appellant cited 6 W. Va 206; 130 Pa. St. 235, 254; 129 Pa. St. 94, 99, 102, 109; 63 Mo. 72; 26 X. J. Eq. 82; 2 Carr. & P. 246; 107 1ST. Y. 610, 618-620; 8 Leigh 160, 187; 1 Pom. Eq. Jur. § 455; 2 Lead. Cas. Eq. (4th Ed.) 1128; Id. 2025; 2044; Id. 2028; Tay. Landl. & Ten. § 495, 496; 2 Sto. Eq. Juris. §§ 1314, 1315; 1 Hare 109; 1 Sm. Lead. Cas. (6th Am. Ed.) 102; 7 Wall. 416, 421; 62 N. Y. 493; 12 Mete. 112; 4 Munf. 332; 68 Am. Dec. 85.
Keck, Son § Fast for appellant cited High Inj. § 615; Sto. Eq. Juris. §§ 716-718, 722, 724, 736, 741, 746, 751, 775, 779-784; 4Kent Comm. 126, 127; 6 W. Va. 206; Cas Co. x. He Witt, Wills v. Gas. Co. Pittsh. L. Jour, for Nov. 4, 1884 and December 11, 1889; 1 Sm. Lead. Cas. (H. & W.) 93-98; Lorn. Dig. 91, 92; 2 Sto. Eq. Jur. 1301, 1314-1316, 1321, 1322.
A. F. Haymond, A. C. Snyder, Alfred Caldwell, Berkshire § Stnrgiss and Cox § Baker for appellees.
A. F. Haymond and Cox $ Baker cited 18 W. Va 693; 11 Leigh 393, 398, 401; 19 W. Va. 288, 289; 28 Gratt. 60; 1 II. & M. 372; 11 W. Va. 146; Id. 449; Id. 562; Id. 584; 15 W. Va. 299; 3 Leigh 614; 9 Gratt, 294; 2 Dan. Ch'y Pr. 1073; 28 Gratt. 49; 10 Gratt. 398; 6 Ves. 147; 7 Ves. 305; 18 Ves. 184; 3 Dan. Ch'y Pr. 1852, 1853; 1 Johns. Ch'y 318; 7 Johns. Ch'y 315; 15 Vt. 84; 1 High Inj. (20 Ed.) § 730; 139 Pa. St. 235; White & Tud. 1060; 3 Edw. Ch'y 78; 7 Paige 82; 1 Johns. Ch'y 370; 1 Bus. Eq. 256; 36 111. 18; 21 111. 643; 13 111. 573; 5 Gilm. 309; 2 Stockt. Ch'y 577; 2 Ohio (K S.) 326, 332; 10 All. 239; 3 Leigh 161, 187; 7 Ohio 424; 9 Ohio 189; 1 la. 302; 45 Mo. 124; 34 111. 142; 11 P. E. Sm. 460; 83 X. Y. 85; 86 N. Y. 638; 47 Me. 500; Lead. Cas. Am. Law Real Prop. 150; 31 W. Va. 566; 27 W. Va. 639; 47 Miss. 189; 28 W. Va. 715; 31 W. Va 141.
A. C. Snyder cited 80 Pa. St. 948; 96 Pa. St. 310; 123 Pa. St. 491; 130 Pa. St. 222; Id. 235; 21 Hun. 26; 86 X. Y. 638; 24 W. Va. 49.
By deed of 30th October, 1885, David Myers leased to E. M. IIukill and George P. IIukill for a term of twenty years a tract of three hundred acres of land in Monongalia county for the purpose of producing oil, said deed containing a covenant on the part of the lessees "to commence operations for said purposes within one; year from and after the execution of this lease, or to thereafter pay to said party of the first part twelve dollars per month until the work is commenced; and a failure of the party of the second part to comply with either one or the other of the foregoing conditions shall work an absolute forfeiture of this lease."
Ilukill did not commence operations within the year. He paid one month's rental, as required by the lease, and paid other money for rentals, as below more fully stated, hut not within the time required by the lease, which money was accepted by Myers; and on 27th July, 1889, on the theory that by reason of nonpayment the lease to Ilukill was forfeited under its provisions, Myers made a second lease of the same hind to J. 0. Smith and II. S. A kins for ten years, and they took possession of the land under it; and when on 29th July, 1889, E. M. Ilukill, who had become sole owner of the lease, by assignment by George P. Ilukill of his interest therein, attempted to haul material on to tin; premises to begin operations, they were driven off and prevented from taking possession by Smith and Akins claiming under their lease. Thereupon E. M. Ilukill brought a chancery suit in the Circuit Court of Monongalia county against Smith, Akins and Myers, to enjoin Smith and Akins from operating for oil on said premises, to compel specific performance by Myers of his lease to Ilukill, and to obtain possession of the premises by the award of a writ of possession; and, his bill having been dismissed, he appeals to this court. On motion of defendants, an injunction was awarded pending the cause, to restrain Ilukill from operating on the premises. Ilukill tendered all rental accruing subsequently to his last payment, but Myers refused it, he having then made the second lease.
I do not understand the bill in this case to be one which, conceding that there has been a forfeiture of the Ilukill lease, prays specific relief from forfeiture, under that principle of equity jurisprudence based on its liberality, charity and mercy, by which it relieves against the hard sentences of the common-law, based on the letter of the bond imposing forfeiture; but it is a bill which denies the exist-ence of any forfeiture of the Hukill lease, and asks relief based on the right of IIukill under its very letter.
Therefore the first question is this: 11 ad the IIukill lease become forfeit and dead by its own terms when the lease to Smith and Akins was made? 1 answer that it had not. And why not? IIukill paid Myers twelve dollars the first month's rental, on 16th November, 1886, before it was due, and on that day Myers signed a receipt therefor and it contains the clause, "I hereby agree to accept ray rental hereafter quarterly." The rental was not paid up quarterly, it is true; but Myers demanded no rental, did no act declaring his dissatisfaction and intent to insist on a forfeiture, but as an act unmistakably evincing no dissatisfaction, and repelling all idea that lie intended to insist upon a forfeiture, and affirmatively showing that he intended not to insist upon it, but to waive it, he drew an order on IIukill on 25th December, 1888, to pay Barrickman "all rents that may be due me at this time on oil lease, and this shall be your receipt for the same;" and IIukill promptly responded to this order by paying two hundred and eight eight dollars; and on 26th December, 1888, Myers executed a receipt to IIukill acknowledging the payment of the two hundred and eighty eight dollars, stating it to be "in full for rental on oil lease to December 30, 1888;" anel afterwards, on 18th May, 1889, IIukill paid Myers sixty dollars, and Myers gave him a receipt, stating that it was "in full for rental on oil lease to May 30, 1889."
After Myers had thus by his conduct clearly manifested a dispensation or waiver of the strict letter of the lease, without any demand on IIukill for the pittance of twelve dollars due under the letter of the lease on 30th June, 1889, if we ignore the saiel agreement to accept rent quarterly,...
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