Sparks v. Albin

• Decision Date: 02 May 1922
• Citation: 195 Ky. 52,241 S.W. 321
• Parties: SPARKS v. ALBIN ET AL.
• Court: Kentucky Court of Appeals

241 S.W. 321

195 Ky. 52

SPARKS v. ALBIN ET AL.

Court of Appeals of Kentucky.

May 2, 1922

Rehearing Denied June 13, 1922.

Appeal from Circuit Court, Lawrence County.

Action by Parish Sparks against A. C. Albin and others to cancel an oil and gas lease. From judgment dismissing the petition plaintiff appeals. Reversed.

O'Rear & Fowler, of Frankfort, S. S. Willis, of Ashland, and Jno. W Wheeler, of Paintsville, for appellant.

Holt Duncan & Holt, of Huntington, W. Va., and A. O. Carter, of Louisa, for appellees.

SAMPSON J.

In 1909 R. M. Sparks and wife conveyed a farm on which they lived containing about 100 acres to their son Parish Sparks in consideration of $600 cash, making the following reservations:

"The parties of the first part reserving the control of said land during their natural life."

This deed was duly recorded in the proper office shortly after this execution. On February 10, 1916, Parish Sparks and wife, joining with them the life tenants, R. M. Sparks and wife, executed an oil and gas lease on the said lands to one A. C. Albin, the consideration being $1, and this was paid to R. M. Sparks, by the terms of which lease Albin was granted the right to go upon the lands mentioned and explore for oil and gas, drill wells, erect and maintain buildings and structures, and to lay pipe lines. The landowners, it was provided, "shall have one-eighth part of all oil produced from said premises to be delivered in pipe lines to which said second party may connect its wells." In case gas was found in paying quantities, the grantors were to receive $100 per year for each well from which gas was marketed. Then follows a brief description of the lands and a statement of the source of title. The lease then provides:

"To have and to hold the above premises as long as gas or oil is found in paying quantities on said premises on the following condition:

In case no well is commenced within twelve months from this date, this grant shall be null and void, unless second party thereafter shall pay at the rate of ten cents per acre for each year drilling is delayed. A deposit to the credit of first party in any bank doing business in Blaine, Ky. will be good and sufficient payment for any money falling due on this grant. * * * In case no paying well is drilled on said premises within ten years from date this grant shall be null and void. * * * On payment of one dollar by second party and upon the abandonment of the premises by second party, or at the expiration of the rights and privileges granted, the failure to pay rentals by second party, then this lease shall be null and void and binding on neither party. All money due on this lease to be paid to Parish Sparks."

No well was commenced on the premises within 12 months from the date of the lease, nor was any rental paid until about the 5th of February, 1918, which was almost 2 years from the execution of the lease. This rental, $10, was paid to R. M. Sparks, the life tenant, and he gave $5 of it to his son, Parish Sparks, plaintiff herein. The next rental was paid to R. M. Sparks about February 1, 1919, and he tendered a part or all of this rental to Parish Sparks, but the latter declined to accept it and gave notice to the president of the Union Oil & Gas Company that he would consider the lease at an end unless the rentals were paid to him according to the terms of the lease contract. He also complained to the cashier of the bank at Blaine, Ky. where the deposits were being made to the credit of R. M. Sparks, that no rentals had been paid to appellant. The cashier of the bank took the matter up with the president of the oil company and told him that Parish Sparks had complained that no rentals had been paid him on the lease, and that he was claiming the rentals according to the terms of the lease, but the president of the oil company instructed the cashier of the bank to continue to pay rentals to R. M. Sparks, which was done for the years 1920 and 1921. In the meantime oil development was making progress in the immediate neighborhood of the lands in controversy. Conceiving that he had the legal right to a cancellation of the oil lease as a cloud upon his title, appellant, Parish Sparks, commenced this action in the Lawrence circuit court for a nullification of the lease upon two grounds: (1) the lease was void for want of mutuality; (2) it lapsed on failure of the lessee and his assignee to pay the rentals or delay money as provided in the contract. The case being prepared and properly submitted to the trial court, judgment was entered dismissing plaintiff's petition and adjudging him to pay the cost.

While it is earnestly and ably insisted with much show of reason that the lease contract under...