Kokomo Natural Gas And Oil Company v. Matlock

• Decision Date: 06 March 1912
• Docket Number: 22,108
• Citation: 97 N.E. 787,177 Ind. 225
• Parties: Kokomo Natural Gas and Oil Company v. Matlock
• Court: Indiana Supreme Court

97 N.E. 787

177 Ind. 225

Kokomo Natural Gas and Oil Company v. Matlock

No. 22,108

Supreme Court of Indiana

March 6, 1912

From Tipton Circuit Court; Leroy B. Nash, Judge.

Action by Elizabeth Matlock against the Kokomo Natural Gas and Oil Company. From a judgment for plaintiff, the defendant appeals. (Transferred from the Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.)

Affirmed.

Bell & Purdum and W. O. Johnson, for appellant.

Joseph C. Herron, Oglebay & Oglebay, for appellee.

OPINION

Monks, J.

Appellee brought this action against appellant upon a written contract, to recover the compensation provided therein for the right to explore 112 1/4 acres of land for natural gas and oil. Trial by the court and judgment for appellee.

The errors assigned call in question the action of the court in overruling appellant's demurrer to the complaint and the motion for a new trial.

The written contract sued on was entered into by appellee with one Forehand, granting to him the exclusive right to explore the land, therein described, belonging to her "for natural gas and oil, for the period of five years with the privilege of a further period of five years for the same purpose and on the same terms, and as much longer as gas and oil may be found in paying quantities," the second party, Forehand, to pay the party of the first part compensation at the rate of fifty cents an acre annually after the expiration of the first year, "until the completion of a well on said premises which shall, in his opinion, produce gas in sufficient quantities to justify said second party in marketing said gas." The contract then provides what compensation shall be paid after a well is completed. Said payments are to be due and payable semiannually, on January 1 and July 1. The second party is to have the right to cancel and end the contract at any time. "All conditions and rights between the parties hereto shall extend to their heirs, executors and assigns." On February 4, 1905, said Forehand assigned said contract to the Indiana Northern Oil and Gas Company, and said corporation afterward assigned said contract to appellant. Appellant afterward, on June 24, 1908, canceled said contract, as it had the right to do under the terms thereof.

Appellant insists that the complaint was insufficient, because it was not alleged therein that "neither appellant nor its immediate or remote assignor had drilled or completed any well upon said land."

It will be observed that the compensation to be paid was fifty cents an acre annually after the first year until a well had been completed, as provided in the contract. If any such well had been completed by appellant or its assignors, that was a matter of defense as to so much of the complaint as sought to recover the compensation of fifty cents an acre annually thereafter. In an action on a contract by which the defendant is to pay the consideration only until the doing of some act by the defendant or other person--as completing a well--the plaintiff is not required to aver that the act has not been done or the contingency has not happened. That is a matter of defense to be set up by the defendant. 1 Chitty, Pleading (14th Am. ed. by Perkins) *321; 1 Chitty, Pleading (16th Am ed. by Perkins) *246; Gould, Pleading (5th ed.) §§ 17, 19; 9 Cyc. 727; 1 Abbott, Trial Briefs (Pleading) (2d ed.) § 182; Root v. Childs (1897), 68 Minn. 142, 146, 70 N.W. 1087; Wooters v. International, etc., R. Co. (1881), 54 Tex. 294; Redman v. Aetna Ins. Co. (1880), 49 Wis. 431, 435-442, 4 N.W. 591; Griswold v. Scott (1853), 13 Ga. 210, 214.

The second error assigned by appellant is the overruling of the motion for new trial, on the ground that the finding of the court was not supported by sufficient evidence and was contrary to law. It is contended that the contract on which appellee sued "was void, for the reason that appellee, being a married woman, was prohibited by statute from conveying or encumbering her land unless her husband had joined in such conveyance or encumbrance." The question presented is whether this contract for exploring her land for natural gas and oil for five years, with the privilege of renewal, was a conveyance or encumbrance of said land within the meaning of the statute.

Section 7852 Burns 1908, § 5116 R. S. 1881, provides that "no lands of any married woman shall be liable for the debts of her husband; but such lands, and the profits therefrom, shall be her separate property, as fully as if she were unmarried: Provided, that such wife shall have no power to encumber or convey such lands, except by deed in which her husband shall join."

Section 7853 Burns 1908, § 5117 R. S. 1881, provides that "a married woman may take, acquire and hold property, real or personal, by conveyance, gift, devise or descent, or by purchase with her separate means or money; and the same, together with all the rents, issues, income and profits thereof, shall be and remain her own separate property, and under her own control, the same as if she were unmarried."

Where a married woman is given by statute the right to the rents, issues, income and profits of her land and is given the control of the land, the same as if unmarried, it is evident that she has the power to lease her land for a term of years, without her husband joining in such lease. In Illinois a statute similar to § 7853, supra, has been construed to mean that a married woman may lease her separate property for a term of years without the consent of her husband, and such a lease for a period of ten years was held binding. Parent v. Callerand (1872), 64 Ill. 97; 21 Cyc 1501.

It has been held in this State that a lease of real estate for years is personal property, and passes to the personal representative of the lessee and not to his heirs. Shipley v. Smith (1904), 162 Ind. 526, 528, 529, 70 N.E. 803, and cases cited.

It has also been held under §§ 7852, 7853, supra, that a lease by a married woman of her lands, for the purpose of cultivation, for a term not exceeding three years, is not an encumbrance or conveyance within the meaning of this statute, and that it was not essential to the validity of the lease that the husband join in the execution thereof. Shiply v. Smith, supra; Pearcy v. Henley (1882), 82 Ind. 129; Nash v. Berkmeir (1882), 83 Ind. 536.

Appellant contends, on the authority of these cases, that a contract by a married woman for exploring her land for natural gas and oil, in which her husband did not join, and which runs for a term longer than three years, is an encumbrance under the statute, and therefore void. Said cases do not sustain this contention. Whil...