Rosson v. Bennett

• Decision Date: 21 April 1927
• Docket Number: (No. 502.)
• Citation: 294 S.W. 660
• Parties: ROSSON v. BENNETT et al.
• Court: Texas Court of Appeals

294 S.W. 660

ROSSON v. BENNETT et al.

(No. 502.)

Court of Civil Appeals of Texas. Waco.

April 21, 1927.

Appeal from District Court, Limestone County; J. R. Bell, Judge.

Suit by Sam Bennett and others against A. E. Rosson. Judgment for plaintiffs, and defendant appeals. Affirmed.

Jos. H. Byers, of Mexia, for appellant.

A. K. Doss, of Ballinger, and C. S. Bradley, of Groesbeck, for appellees.

GALLAGHER, C. J.

This suit was instituted by Sam Bennett and seven others, appellees herein, against A. E. Rosson, appellant herein, to establish the validity of a certain oil and gas lease and to set aside an attempted forfeiture thereof as a cloud upon their title to the minerals in and under the lands covered by said lease. Appellees alleged, in substance, that theretofore on July 23, 1919, appellant executed and delivered to them, for a cash consideration of $500, a certain oil and gas lease covering 25 acres of land in Limestone county, Tex.; that said lease was to continue for a term of three years from said date and as long thereafter as oil or gas should be produced from said land; that, in consideration thereof, lessees obligated themselves to pay to appellant a royalty of one-eighth of all the oil and gas produced and saved from said land; that said lease authorized appellees to sell and assign the same; that said lease provided, among other things, as follows:

"If no well be commenced on said land on or before the 23d day of July, 1922, this lease shall terminate as to both parties, unless the lessee, on or before that date, shall pay or tender to the lessor or the lessor's credit in the First State Bank at Coolidge, Tex., or its successors, which shall continue as the depository, regardless of changes in ownership of said land, the sum of one dollar per year dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date. In like manner and upon all like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but the lessee's option of extending that period as aforesaid, and any and all other rights conferred." (Italics ours.)

They further alleged that the real understanding and agreement was that appellees should pay or tender to appellant the sum of $1 per acre per year as rental for the privilege of deferring commencement of a well as therein provided, and that the use of the word "dollars" instead of "per acre" was the result of a mutual mistake in preparing said lease contract. They further alleged that they had paid, and appellant had accepted, rentals at said rate as therein provided for each of the years beginning July 23, 1922 to 1924, inclusive; that on July 9, 1925, appellant announced his intention of refusing to receive or accept said stipulated rental for renewal of said lease, and had since that time continuously refused to receive or accept such rentals; that appellees tendered said rental for said year at the proper time and for each year thereafter prior to the institution of this suit; that appellant executed and caused to be recorded in the deed records of said county a declaration reciting that lessees had failed and refused to commence a well on said land and had failed and refused to pay the rentals provided for in said lease according to the terms and stipulations therein contained, and that said lease had for that reason been forfeited and become null and void. Appellees further alleged that for several months immediately preceding the filing of this suit there had been a great deal of activity by way of drilling and producing oil on lands in the immediate vicinity and within a few hundred feet of the land covered by said lease, and that, by reason thereof, said land had become of great value for oil and gas purposes. Appellees tendered in court rentals at the rate stipulated in said lease for the years beginning July 23d, 1925, and 1926, and prayed that they be quieted in their title to said lease and that the declaration of forfeiture so executed and recorded by appellant be canceled and removed as a cloud upon their title to said lease and the oil and gas under the land described therein.

The case was tried to the court, and judgment rendered reforming said lease so as to provide for the payment of $1 per acre for each annual renewal thereof, and declaring and adjudging said lease to be and remain in full force and effect and in no way or manner impaired by appellant's attempted forfeiture thereof. Said judgment canceled the declaration of forfeiture executed by appellant, and recorded as aforesaid and removed the same as a cloud upon appellees' title to the oil and gas under said land, and awarded to appellant the $50 deposited in court by appellees as rentals which had accrued during this controversy. Appellant presents said judgment to this court for review.

Opinion.

The transcript in this case contains neither motion for new trial nor assignment of error. Such being the case, only fundamental error can be considered. J. G. Smith Grain Co. v. Payne (Tex. Civ. App.) 290 S. W. 841, 842, and authorities there cited.

Appellees' petition shows on its face that the specific term provided for in the lease declared on therein had expired at the time appellant attempted to forfeit the same....