Mccray v. Miller, Case Number: 10291

CourtSupreme Court of Oklahoma
Writing for the CourtRAINEY, J.
Citation78 Okla. 16,184 P. 781,1919 OK 283
PartiesMcCRAY v. MILLER et al. BLAND v. BLAND et al.
Docket NumberCase Number: 10291
Decision Date14 October 1919

1919 OK 283
184 P. 781
78 Okla. 16

MILLER et al.

BLAND et al.

Case Number: 10291

Supreme Court of Oklahoma

Decided: October 14, 1919


¶0 1. Oil and Gas--Lease--Effect of Surrender Clause.

The presence of a surrender clause in an oil and gas lease does not give the lessor the right to terminate the lease, where the lessee has not breached its terms.

2. Homestead--Definition.

The word "homestead" has both a popular and a legal signification and its popular and legal meaning is the same. In common acceptation of the term it means the residence of the family--the place where the home is, and it was employed in the common and popular apprehension of its meaning in that part of section 1, art. 12, of our Constitution. pertaining to rural homesteads.

3. Homestead--Residence.

Where the head of a family in this state is the owner of lint one tract of land, not within any city, town, or village, consisting of not to exceed one hundred sixty acres, the fact of ownership alone does not constitute it a homestead. There can be no homestead right in land where the owner does not and never has resided thereon, and has made no preparation or evinced any intention of so doing.

4. Corporations--Oil Lease--Corporation as Lessee.

There is no inhibition in section 2, art. 22 of the Constitution, against a corporation acquiring a lease to prospect land for oil and gas. On Rehearing.

5. Constitutional Law--Due Process of Law--Impairment of Obligation of Contracts--Oil and Gas Leases--Change in Judicial Decisions--Effect.

Defendants in error obtained an oil and gas lease on a tract of land prior to the rendition of the opinion of Brown v. Wilson, 58 Okla. 392, 160 P. 94, which case was thereafter overruled by an opinion of this court in the case of Rich v. Doneghey, 71 Okla. 177 P. 86. Held, the overruling of the case of Brown v. Wilson did not deprive the defendants in error of any of their property rights without due process of law, nor did the same impair any of their rights under and by virtue of their oil and gas lease in violation of section 1, art. 14, and sec. 10, art. 1, of the Constitution of the United States.

6. Courts--Stare Decisis--Decisions on Oil and Gas Leases.

Under the facts and pleadings in this case, the rule of stare decisis has no application.

7. Constitutional Law--Impairment of Obligation of Contracts--Change in Judicial Decisions.

It is well settled that an impairment of the obligation of a contract, within the meaning of the federal Constitution, must be by subsequent legislation, and no mere change in judicial decisions will amount to such deprivation.

Error from District Court, Creek County; Mark L. Bozarth, Judge.

Action by W. S. McCray against Ambrose Miller and others. From the judgment McCray and Owen W. Bland bring error. Reversed and remanded, with directions.

J. O. O'Meara, Chas. E. Bush, A. F. Moss and Stuart, Cruce & Riddle, for plaintiffs in error.

W. H. Kornegay, Owen Owen, W. V. Biddison and V. H. Biddison, for defendants in error.

West, Sherman, Davidson & Moore and Hill, Ramsey & Hagan, amicus curiae.


¶1 This is an equitable action for the cancellation of an oil and gas lease. At the request of all parties the trial court made separate findings of fact and conclusions of law, which are as follows:

"Findings of Fact by the Court.

"In this case the court finds the facts to be:

"1. That the land involved in this suit and covered by the oil and gas lease in controversy, is as described in the pleadings and consists of 160 acres of the allotment of one Owen W. Bland, who was a member of the Creek tribe of Indians by blood.

"2. The court finds that the said Owen W. Bland and the defendant Fern Bland were married on the 15th day of July, 1915, and that they separated on or about the first day of November, 1915, and never resided together as husband and wife thereafter.

"3. That on the 24th day of November, 1915, the said Fern Bland filed suit for divorce and alimony, and that in said petition she alleged that said separation took place on the 1st day of November, 1915.

"4. The court further finds that the said Owen W. Bland as the owner of said land, never at any time during said marriage relation, or at any other time, designated or selected said land or any portion thereof as a homestead for himself and family, and never at any time had any intention of making said land the homestead of himself and family, nor did he have any intention at any time to improve the same for a homestead or live and reside thereon as such.

"5. The court finds that on the 18th of November, 1915, the said Owen W. Bland executed and delivered an oil and gas lease covering the land involved, the same being the 160 acres allotment of Owen W. Bland, to one John H. Simmons, for a valuable consideration; that on the 16th day of November, 1916, said lease was, for a valuable consideration, assigned by the said John H. Simmons, the owner thereof, to the Ross Investment Company, an Oklahoma corporation organized for the purpose of producing oil and gas for commercial purposes; that said oil and gas lease was sold and transferred by the Ross Investment Company to W. S. McCray.

"6. The court finds further that on January 11, 1916, and at all times thereafter the plaintiff had constructive knowledge of the execution of a lease by the said Helen Fern Bland to Ambrose Miller covering the lands involved herein and of the intention of the said Helen Fern Bland to hold the plaintiff lessees to the performance of the covenants of development in the Simmons lease.

"7. The court finds that on November 16, 1916, and after said Owen W. Bland had conveyed to Fern Bland the eighty acres in controversy, W. S. McCray paid to said Fern Bland eighty dollars, the amount provided for in the lease covering the eighty acres described in the deed of conveyance, and the same was accepted by the said Fern Bland; that some time prior to November 15, 1917, the plaintiff made personal tender of eighty dollars due Fern Bland as rental on the eighty acres herein, which was refused by her; that on the 15th day of November, 1917, plaintiff, W. S. McCray, deposited in the First National Bank of Tulsa, Oklahoma, in pursuance to the provisions of said oil and gas lease, the sum of eighty dollars, to the credit of the said Fern Bland.

"8. The court finds that on or about the 1st of September, 1917, the plaintiff W. S. McCray started drilling operations for the purpose of drilling a well for oil and gas, upon the land in controversy; that the average time for drilling and completing a well in said vicinity was thirty days; that plaintiff encountered unforeseen trouble and that said well was not completed prior to the 18th day of November, 1917; that there was no oil being produced in paying quantities from said land on the 18th day of November, 1917, nor until some time thereafter; that said drilling operations and development were started and continued in good faith and due diligence by the plaintiff, W. S. McCray, and continued until oil was found in paying quantities.

"9. The court finds that at the time Owen W. Bland and Fern Bland were divorced that they freely and voluntarily entered into an alimony and property settlement and settlement of their property and marital rights; that by reason of such settlement Fern Bland received the eighty acres in controversy by a conveyance from Owen W. Bland, and that she released all interest in his property, both real and personal, and assumed the payment of one-half of a mortgage for thirty-five hundred dollars against the entire allotment, and that said Owen W. Bland in effecting said settlement and executing and delivering said deed of conveyance, acted freely and voluntarily and free from any duress, undue influence, menace and compulsion.

"Conclusions of Law.

"1. The court concludes as a matter of law that from the facts found, the land in controversy and no part thereof was impressed with the homestead character and does not constitute the homestead of Owen W. Bland and Fern W. Bland, his wife.

"2. That the consideration for the Simmons lease was the covenants on the part of the lessee for the development of the property and the payment of prospective royalties, and that by reason of the surrender clause contained therein, the said lease was subject to surrender by the lessee and therefore subject to be terminated at a given rental paying period, by the lessor, and constituted a contract for the one year only for which the rental was actually paid; that the first lease to Ambrose Miller by Helen Fern Bland, in January, 1916, constituted constructive notice to the lessees, by reason of its due recordation, of her intention to hold the lessees to the covenants of development; that the rentals for the second year having been refused by defendant Fern Bland, the said plaintiff W. S. McCray failing to produce oil in paying quantities on said land on or

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