Poe v. Ulrey

• Decision Date: 20 February 1908
• Citation: 233 Ill. 56,84 N.E. 46
• Parties: POE et al. v. ULREY et al.
• Court: Illinois Supreme Court

233 Ill. 56

84 N.E. 46

POE et al.

v.ULREY et al.

Supreme Court of Illinois.

Feb. 20, 1908.

Appeal from Appellate Court, Third District, on Appeal from Circuit Court, Clark County.

Action by J. V. Poe and another against Clarence Ulrey and others to have a gas and oil lease declared null and void. From a judgment of the Appellate Court reversing a judgment for plaintiffs, they appeal. Affirmed.H. C. Bell and W. W. Shuler, for appellants.

Golden, Schofield & Schofield, for appellees.

CARTWRIGHT, J.

On January 27, 1905, J. V. Poe and Mary E. Poe, his wife, the appellants, and Clarence Ulrey, one of the appellees, executed the following instrument:

‘In consideration of the sum of one dollar, the receipt of which is hereby acknowledged, we, J. V. Poe and wife, of Martinsville township, Clark county, Ill., parties of the first part, hereby grant and lease unto Clarence Ulrey, of Martinsville, Ill., party of the second part, all the oil and gas in and under the following described premises, namely: All that lot of land situated in Martinsville township, Clark county, Ill., described as follows, to wit: The southwest quarter of the northeast quarter of section 31, town 10 north, range 13, containing 40 acres; also the north one-half of the southeast quarter of the northeast quarter of section 21, town 10 the northeast quarter of section 31, town 10 the south one-half of the northeast quarter of the northeast quarter of section 31, town 10 north, range 13, containing 20 acres-in three descriptions containing 80 acres, more or less-together with the right to enter thereon at all times for the purpose of drilling and operating for oil and gas, and to erect and maintain all buildings and structures and lay pipes necessary for the production and transportation of oil and gas. To have and to hold the above-described premises for the term of five years from the date hereof, and as much longer as oil or gas is found in paying quantities on said premises, on the following conditions: Second parties shall, within 12 months from date hereof, drill to completion a test well upon said premises. If gas is found in sufficient quantities to transport, second parties agree to pay first parties the sum of $100 per year for the gas product of each well from which gas is transported, payable annually when a market is found for the gas, and first parties to have gas free of cost to heat and light one dwelling house, to be transported at first parties' cost. If oil be found in paying quantities, the first parties shall have the one-eighth part of all oil produced and saved from said premises, to be delivered in the pipe line with which second parties connect their wells.

‘The parties of the first part grant the further privileges to the parties of the second part the right of way over and across said premises to the place of operating, together with the exclusive right to lay pipes to convey oil and gas, the right to remove any machinery or fixtures placed on said premises; and the parties of the first part reserve the right to use and enjoy said premises for the purpose of tillage and all purposes not inconsistent with the objects and purposes of this lease, except such part as may be necessary for the purpose above specified, the second party to lay all pipes deep enough in the ground so as not to interfere with the cultivation of the soil. The second party hereby agrees to pay any damage done to growing crops by the laying of pipes, and to leave the tilling in as good order as same is found. In case no well is completed on said premises within 12 months from this date, the parties of the second part shall pay to parties of the first part, as rental, at the rate of one dollar per acre per year, to be paid quarterly at close of the first quarter of each such rental year, counting from the expiration of said 12 months. It is further agreed that in case no paying well is completed on said premises within five years from the date hereof this grant shall be null and void without further agreement of the parties hereto. No well shall be drilled within 200 feet of any dwelling house or building without a written permit from the first parties.

‘The second parties shall have the right to use sufficient gas and water to run all machinery for operating said wells, also the right to remove all its property at any time, but without interference with first parties' water supply. Upon abandonment by second party of the premises, or upon expiration of the rights and privileges of the second parties under the provisions hereof, the second party agrees to execute full release to parties of first part. The parties of the second part hereby agree to complete one test well on this block of leases in Martinsville township, Clark county, Ill., on or before the 1st day of May, 1905, or forfeit all rights under this lease.

‘It is understood between the parties to this agreement that all conditions between the parties hereunto shall extend to their heirs, executors, administrators, and assigns. If said first well is found productive of either oil or gas, second parties further agree to continue with due diligence on this block of leases in Martinsville township as long as paying wells are found. It is agreed that upon the payment of one dollar at any time by the parties of the second part, their successors or assigns, to parties of the first part, their successors or assigns, shall have the right to surrender this lease for cancellation, after which all payments and liabilities thereafter to accrue under and by virtue of its terms shall cease and terminate, and this lease shall become absolutely null and void.

‘In witness whereof the parties hereunto have set their hands and seals this 27th day of January, 1905.

‘J. V. Poe. [Seal.]

‘Mary E. Poe. [Seal.]

‘Clarence Ulrey. [Seal.]’

The instrument was acknowledged by appellants before a notary public, and was filed for record in the recorder's office of Clark county. The appellee Ulrey assigned the lease, except a one-sixteenth interest therein, to the Illinois Oil & Gas Company, the other appellee. On July 10, 1906, appellants filed their bill of complaint in the circuit court of Clark county, praying the court to set aside the lease as void on account of want of mutuality, and because it was unfair, harsh, and unconscionable, and also on the ground that appellees had failed to comply with the terms of the lease. The answer admitted the execution of the lease, the assignment of an interest to the appellee the Illinois Oil & Gas Company, and averred the performance of their agreements on the part of the appellees. The court heard the evidence and entered a decree declaring the lease null and void, setting the same aside, and canceling it as a cloud upon the title of appellants, and directing appellees to deliver up the lease to be canceled. Appellees removed the record by appeal to the Appellate Court for the Third District, and that court reversed the decree, and remanded the cause, with directions to the circuit court to dismiss the bill for want of equity. Counsel for appellants say that because of the great importance of the question of law involved in the case they applied to the Appellate Court for an appeal upon a certificate of importance, which was allowed. The record is here for review in pursuance of an order of the Appellate Court granting an appeal.

The first proposition of counsel for appellants to be noticed is their claim that the Appellate Court had no jurisdiction of the appeal from the circuit court, and that the judgment of the Appellate Court in a case of which it had no jurisdiction should be reversed and the cause should be remanded to that court, with directions to dismiss the appeal. The bill of complaint alleged that the premises were occupied as a homestead by appellants, and that the lease did not contain a release and waiver of the right of homestead. The answer admitted the existence of the homestead estate, and there was no release and waiver of the right of homestead in the lease or the acknowledgment; but the question of the validity of the instrument on that ground was not raised in the circuit court, and there was no finding on the subject. Counsel for appellants say that they did not raise the question nor discuss it in their brief or argument in the Appellate Court, and it was not presented in any way to that court. The appellees, who were appellants in the Appellate Court, assigned errors upon the record (not involving the homestead) of which the court had jurisdiction, and the...