Huston v. Cox

• Decision Date: 11 May 1918
• Docket Number: 21,467
• Citation: 172 P. 992,103 Kan. 73
• Parties: EDWARD J. HUSTON et al., Appellees, v. GEORGE W. COX et al., Appellants
• Court: Kansas Supreme Court

172 P. 992

103 Kan. 73

EDWARD J. HUSTON et al., Appellees, v. GEORGE W. COX et al., Appellants

No. 21,467

Supreme Court of Kansas

May 11, 1918

Decided January, 1918.

Appeal from Sedgwick district court, division No. 1; RICHARD E BIRD, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. JURISDICTION--Oil and Gas Lease--Land in another County--Appointment of Receiver. A receiver may be appointed by the district court for an oil and gas lease of land beyond the jurisdiction, when the instrument merely creates an incorporeal hereditament, and in any event when the court has jurisdiction of the persons of the interested parties.

2. OIL AND GAS LEASE--Mining Partnership. Unless an ordinary partnership has been created, a mining partnership between cotenants of an oil and gas lease may exist only while they actually engage in working the property.

3. SAME--Receiver Properly Appointed. The evidence considered, and held, a receiver was properly appointed for an oil and gas lease, although the interested parties were merely cotenants.

David Smyth, and J. W. Smyth, both of Wichita, for the appellants.

Thomas C. Wilson, Jean Madalene, and Charles B. Hudson, all of Wichita, for the appellees.

OPINION

BURCH, J.:

The appeal is taken from an order of the district court appointing a receiver.

The petition prayed for dissolution of a partnership, for an accounting, and for disposition of the partnership property. The appointment of a receiver was asked by way of provisional and auxiliary relief. The chief ground of opposition to the appointment of a receiver was that the subject of the action was real estate situated in Butler county, and consequently that the court had no jurisdiction to appoint a receiver for it.

The property involved is an oil and gas lease. The lease is of the familiar kind granting the right to enter on described land, explore for oil and gas, and if oil and gas be found in paying quantities, to operate and produce. The decisions of this court are too numerous to require citation, that instruments of that character are not leases, in the strict sense. The term lease is applied to them merely through habit and for convenience. They create no estate in land, but merely a kind of license. In the case of Oil Co. v. McEvoy, 75 Kan. 515, 89 P. 1048, it was said they create an incorporeal hereditament, that is, a right growing out of, or concerning, or annexed to, a corporeal thing, but not the substance of the thing itself. In the case of Robinson v. Smalley, 102 Kan. 842, 171 P. 1155, this nomenclature was approved and applied.

In this instance the right granted was exclusive to the grantees, and it is said this fact changed the nature of the grant. The circumstance that the grantors precluded themselves from making other leases did not change the thing the grantees acquired from one of an incorporeal to one of a corporeal nature.

Besides what has been said, it is unnecessary that property constituting the subject matter of a receivership be within the jurisdiction of the court, provided the parties in interest be subject to the control of the court. In this instance the court acquired jurisdiction of the persons of the defendants by personal service and by an answer to the merits, and it would have made no difference if the property had been land. (High on Receivers, 4th ed., § 44.)

Cox and Brush negotiated for the lease, which provided the lessors should receive one-eighth of the mineral produced. Cox and Brush took the lease in their own names. Huston and his associates contributed $ 3,200 to the enterprise. Huston and his associates signed a contract relating to the matter, and there was evidence that Cox and Brush were to sign, but refused to do so after the lease was procured. Material portions of the contract follow:

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