Papoose Oil Co. v. Swindler

• Decision Date: 27 March 1923
• Docket Number: Case Number: 13881
• Citation: 1923 OK 190,95 Okla. 264,221 P. 506
• Parties: PAPOOSE OIL CO. v. SWINDLER et al.
• Court: Oklahoma Supreme Court

1923 OK 190

221 P. 506

95 Okla. 264

PAPOOSE OIL CO. v. SWINDLER et al.

Case Number: 13881

Supreme Court of Oklahoma

Decided: March 27, 1923

Syllabus

¶0 1. Appeal and Error--Briefs--Sufficiency--Specifications of Error.

Where the specifications of error contained in the brief clearly and concisely state errors complained of, and where such errors were included in the assignments of error set forth in the petition in error, there is a substantial compliance with rule 26, although such specifications are not set forth in the same language or in the same order as the assignments in the petition.

2. Appeal and Error--Review of Equity Case--Necessity for Exception to Findings.

An exception to the findings of fact made by the trial court is not necessary to present to this court for review the sufficiency of the evidence to sustain the findings and judgment of the trial court in an equity case.

3. Guardian and Ward--Departmental Oil Lease--Extension Agreement--Validity.

Where a departmental oil and gas lease was executed by a guardian of a minor in 1907, leasing premises until the majority of the ward, and prior to the minor's reaching her majority the guardian for valuable consideration executed to the lessee an extension agreement extending the term of the lease so long as oil and gas are found in paying quantities, and such lease was approved by the county court, and having been made before the promulgation of rule 9 of this court (47 Okla. xvi), the extension agreement was valid, although the same was executed without notice and without competitive bidding.

4. Same--Nature of Oil Lease--Execution by Guardian.

The execution of an oil and gas lease by a guardian of a minor is not a sale of either personal or real estate of the minor so as to bring such transaction under the provisions of the statute governing sales of personal and real estate of minors; but an oil and gas lease is a contract for the use of the property for the purpose of exploring the premises for oil and gas and to take therefrom those products so long as they are found in paying quantities.

5. Same--Nature of Property Rights.

The execution of an oil and gas lease on premises already producing oil is not a sale of either real estate or personal property by the minor within the meaning of the provisions of the statute governing the sale of personal and real estate of minors. The lease does not vest title to the oil and gas in the lessee, no title being vested in such lessee until the substance is reduced to possession by extraction from the earth.

6. Oil and Gas--Compliance With Lease--"Drilling Through Certain Sand."

Where a lease provides for a forfeiture unless a well is drilled through a certain sand within a specified time, the lessee is not required to drill below such sand in search of a new sand, but his contract has been complied with when he has drilled through the specified sand.

7. Same--Acceptance of New Lease--When Effective.

The acceptance of a new and valid lease from the lessor during the time of the first lease, where the parties intended the new lease to take effect at once, operates as a surrender of the first lease, and the new lease becomes effective immediately.

8. Same --Extension Agreement --Consideration.

Where the oil and gas lease provided for 10 per cent. of the oil produced as royalty and the extension lease provided for 12 1/2 per cent., there was sufficient consideration to support the extension agreement.

Error from Superior Court, Okmulgee County; H. R. Christopher, Judge.

Action by James A. Swindler and J. L. Selby against the Papoose Oil Company to cancel lease. Judgment for plaintiffs, and defendant brings error. Reversed and remanded, with directions.

B. C. Conner, Beeman Strong, and Ames, Chambers, Lowe & Richardson, for plaintiff in error.

Calvin Jones, Rainey & Flynn, W. F. Semple, and D. H. Linebaugh, for defendants in error.

Geo. S. Ramsey and R. A. Hefner, amici curiae.

COCHRAN, J.

¶1 This action was commenced by the defendants in error, plaintiffs below, against the plaintiff in error, defendant below, for the cancellation of certain oil and gas leases held by the defendant.

¶2 The plaintiffs insist that the appeal of the defendant should be dismissed because of failure to comply with rule 26 of this court (47 Okla. x). It is our opinion that the brief filed by the defendant is substantially in compliance with rule 26, and where the specifications contained in the brief clearly and concisely state the errors complained of, and where such errors were included in specifications contained in the petition in error, rule 26 has been complied with, although the specifications contained in the brief are not set forth in the same language or in the same order as the specifications in the petition in error.

¶3 The defendant challenges the judgment rendered on the ground of the insufficiency of the evidence to support it, and the plaintiffs contend that the findings of fact made by the trial court are conclusive as to the facts, because no proper exceptions were saved to such findings of fact. At the conclusion of the journal entry of judgment, in which the findings of fact and conclusions of law are incorporated, appears the following exception:

"To all of which the defendant excepts and saves his exception and files notice in open court of his intention to appeal to the Supreme Court of Oklahoma."

¶4 Reference is made by the plaintiffs to the following cases as authority for the contention that the findings of fact are conclusive unless proper exceptions are saved, to wit: St. Louis Carbon. Co. v. Lookeba State Bank, 59 Okla. 71, 157 P. 1046; Allen v. Wildman, 38 Okla. 652, 134 P. 1106; Shuler v. Lashhorn (Kan.) 74 P. 264. The rule announced in those cases has been applied by this court in all law cases tried without a jury where the findings of fact are made, but has no application to equity cases. The purpose of an exception is to raise an objection to a decision of the trial court upon a matter of law. Section 565, Comp. Stat. 1921, provides as follows:

"An exception is an objection taken to a decision of the court or judge upon a matter of law."

¶5 In the case of McDonald, Adm'r, v. Strawn, 78 Okla. 271, 190 P. 558, this court said:

"There is no reason for a demurrer to the evidence in an equity case tried before the court or before a jury, or for a motion to direct a verdict, or for a declaration of law by the chancellor as a prerequisite to the review by this court of the whole case, including evidence. * * * But a timely motion for a new trial is necessary in equity in order that the trial court may have an opportunity to correct its errors on the law and the facts."

¶6 We may also say that there is no reason for an exception to findings of fact made by a trial court in an equity case. Such findings are not a decision of the court or judge upon a matter of law, and upon appeal of a case of purely equitable cognizance it is the duty of the court to weigh the evidence and, if after weighing the same it is found that the judgment of the trial court is clearly against the weight of the evidence, to render or cause to be rendered such judgment as the trial court should have rendered. It is not necessary to save an exception to the final judgment in an equity case in order to obtain a review thereof. Nichols v. Board of Comm'rs of Weston County, 13 Wyo. 1, 3 Ann. Cas. 543, 76 P. 681; Koehler v. Ball, 2 Kan. 160; Commercial Bank of Cincinnati v. Buckingham, 12 Ohio St. 402; Board of Comm'rs of Wyandotte County v. Arnold, 49 Kan. 279, 30 P. 486. Such being the case, and in view of the rule of this court that on appeal in a case of purely equitable cognizance this court will weigh the evidence, there can be no necessity for an exception to findings of fact in an equity case. We, therefore, conclude that it is not necessary to save an exception to the findings made by the trial court in order to have the questions of the sufficiency of the evidence to sustain the judgment reviewed by this court, and if the questions are properly presented by motion for a new trial, this court on appeal will review the entire record for the purpose of ascertaining whether the judgment of the trial court is clearly against the weight of the evidence.

¶7 The trial court concluded that the extension of the oil and gas leases executed by James Osborn as guardian of Clara and Irene Osborn, minors, to the Ventura Oil & Gas Company on January 30, 1913, was void. In 1907, James Osborn, as guardian of these minors, executed departmental oil and gas leases to the Ventura Oil & Gas Company, which leases provided for a royalty of 10 per cent. of the oil produced and expired upon the minors reaching their majority. The leases contained the following provision:

"It is mutually understood and agreed that this indenture of lease shall in all respects be subject to the rules and regulations heretofore or that may hereafter be lawfully prescribed by the Secretary of the Interior relative to oil and gas leases of the Five Civilized Tribes. * * *"

¶8 On April 20, 1908, the Secretary of the Interior promulgated rules and regulations wherein it was provided that in leases like the above the lessees might with the approval of the Secretary of the Interior increase the royalty to 12 1/2 per cent. of the gross proceeds and that the leases would be subject to all the rights, privileges, and conditions of the lease form approved and issued by the Secretary of the Interior on April 20, 1908, which form provided that the lease should continue so long as oil and gas were produced in paying quantities. The Ventura Oil & Gas Company, with the approval of the Secretary of the Interior, entered into the stipulation for the payment of 12 1/2 per cent. royalty, and considered that by so doing, its leases were extended to run so long as oil and gas are found thereon. In 1913, the attorney for the Ventura Oil & Gas Company became doubtful as to the validity of...