Puritan Oil Company v. Myers
| Decision Date | 03 April 1907 |
| Docket Number | 5,779 |
| Citation | 80 N.E. 851,39 Ind.App. 695 |
| Parties | PURITAN OIL COMPANY v. MYERS |
| Court | Indiana Appellate Court |
From Henry Circuit Court; John M. Morris, Judge.
Suit by John W. Myers against the Puritan Oil Company. From a decree for plaintiff, defendant appeals.
Affirmed.
W. W Thornton, for appellant.
William W. Mann and Lincoln Lesh, for appellee.
This suit was brought by the appellee against the appellant to quiet his title to certain real estate in Delaware county. The complaint was in two paragraphs. The first was in the usual form. The second, alleging substantially the same facts, sought to cancel a gas-and oil-lease held by appellant on the tract of land in said county, owned by appellee. Demurrers were filed to each of the paragraphs which were overruled, and proper exceptions saved. Answers in general denial were filed to each paragraph, and special answers in second, third and fourth paragraphs to second paragraph of the complaint were also filed. The second paragraph of answer alleged the payment to, and acceptance by, appellee of $ 7.50 on August 1, 1903, the rental for the quarter beginning August 4, 1903, also the payment of $ 7.50 for the quarter beginning November 4, 1903, and further alleged the payments of $ 7.50 to the Merchants National Bank for the quarters beginning February 4, 1904, May 4, 1904, August 4, 1904, and November 4, 1904, and credited to appellee's account with said bank. The third paragraph, in addition to the facts alleged in the second, alleged that, prior to the notice given by appellee to appellant, appellee knew of the payments made to said bank for appellee for the quarters beginning February 4, and May 4, 1904, and before the bringing of this suit appellee well knew that other payments had been made to said bank for him. The fourth paragraph alleged substantially the same facts as the second and third, with the additional allegation that said $ 30 was not paid as an option for any one year, but, on the contrary, was a part of the consideration for all the rights under said contract; that this suit was brought before the end of the second year. Demurrers to each of these paragraphs were filed, overruled, and excepted to by appellee. The cause was put at issue, there was a trial by court, and finding and judgment for appellee.
The errors relied upon are the overruling of the demurrers to the complaint and the motion for a new trial. Demurrer was upon two grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action. For appellant's failure to discuss this cause in its brief, it is thereby waived. That the said Elizabeth Myers should be joined as party plaintiff herein. It is contended by the appellee that the second ground of demurrer is insufficient, in that it does not meet the requirements of § 342 Burns 1901, cl. 4, § 339 R. S. 1881. In view of our holding herein, as to Elizabeth Myers being made a party in this suit, it is unnecessary for us to pass upon this question. This was a suit to remove a cloud from the title to appellee's land, and his wife, Elizabeth Myers, was not a necessary party plaintiff in this suit. The court did not err in overruling the demurrer to the complaint.
The contract sought to be canceled is as follows:
"In consideration of the sum of $ 1, the receipt of which is hereby acknowledged, John W. Myers and wife, Elizabeth Myers, first parties, hereby grant unto Shade & Reedy, second parties, their successors and assigns, all the oil and gas in and under the following described premises, together with the right to enter thereon at all times for the purpose of drilling and operating for oil, gas, or water, and to erect and maintain all buildings and structures and lay all pipes necessary for the production and transportation of oil, gas or water from said premises. Excepting and reserving, however, to first parties, the one-sixth part of all oil produced and saved from said premises, to be delivered in the pipe-line with which second parties may connect their wells, namely: [Here follows description.]
To have and to hold the above premises on the following conditions: If gas only is found, second parties agree to pay $ 100 each year for the product of each well while the same is being used off the premises, and first parties to have gas free of cost to heat all stoves in dwelling-house during the same time, and lights. Whenever first parties shall request it, second parties shall bury all oil and gas lines, and pay all damages done to growing crops by reason of burying and removing said pipe-lines. No well shall be drilled nearer than 300 feet to the house or barn on said premises, and no well shall occupy more than one acre. In case no well is completed on the above-described premises within six months from this date, then this grant shall become null and void, unless second parties shall pay to said first parties $ 30 each year thereafter such work is delayed. Paid quarterly in advance. Paid at Merchants National Bank, Muncie, Indiana.
The second parties shall have the right to use sufficient gas, oil, or water to run all necessary machinery for operating said wells, and also the right to remove all their property at any time.
It is expressly stipulated and agreed that the parties of the second part may, at any time in their option, in consideration and payment of $ 1 to the parties of the first part, their heirs or assigns, surrender and cancel this lease, terminate all rights and rescind all obligations of either and all of the parties hereto, their successors, heirs or assigns. Also right to utilize the gas from said wells for the development of said lease.
It is...
To continue reading
Request your trial