State v. Welch
| Decision Date | 04 November 1919 |
| Docket Number | A-2055. |
| Citation | 184 P. 786,16 Okla.Crim. 485 |
| Parties | STATE v. WELCH. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
A lease, granting oil and gas mining privileges for a term of years, is only a grant of an incorporeal hereditament, and such a lease grants no corporeal interest or hereditament.
The execution of a lease, granting oil and gas mining privileges for a term of years, on lands held adversely, by a third person or persons, is not a violation of section 2260, Rev Laws 1910, defining the offense of champerty.
Appeal from County Court, Nowata County; Wm. F. Gillully, Judge.
Information against Frank Welch for champerty, and from a judgment sustaining a demurrer thereto, the State appeals. Affirmed.
J. E Bennett, Co. Atty., and F. A. Calvert, Asst. Co. Atty., both of Oklahoma City, for the State.
C Caldwell, of Vinita, for defendant in error.
This is an appeal by the state from a judgment of the county court of Nowata county, sustaining a demurrer to an information filed in said court, of which the charging part is as follows:
"That said Frank Welch did, in the said county and state, on the said date, unlawfully and maliciously sell, convey, and grant to C. Caldwell a pretended right or title to lands and tenements located and situated in Nowata county, state of Oklahoma, as follows: The northeast quarter of section 31, township 26 north, range 15 east, at a time and when neither the said Frank Welch, who made the said sale and grant, nor any other person by whom the said Frank Welch claims or claimed, have been in possession of the said lands, or of the reversion and remainder thereof, or have taken the rents and profits thereof for the space of one year prior to such grant, conveyance, or sale, and at such a time when G. W. Ellis, W. I. Ellis, J. A. Ellis, and Paul Lovell, either one or both, were in possession of the said lands, and had been in such possession continuously for the space of one year and prior thereto, before the said grant of the said pretended right or title by the said Frank Welch to said C. Caldwell, a copy of which grant is hereto attached, marked 'Exhibit A,' and made a part of this information, contrary to," etc.
The demurrer to the information was on the ground that "the facts stated do not constitute a public offense."
It is the contention of counsel for the state that the execution of the oil and gas lease by the defendant is a violation of section 2260, Rev. Laws.
The defendant in error contends that it is not.
The lease made a part of the information in its terms is the form in common use. It recites that it was given in consideration of $1 paid to the lessor, and the covenant and agreements of the lessee therein set forth. It contains the usual words of grant and demise; runs to the lessee, Caldwell, his successors and assigns; describes the purpose for which it was given as that of mining and operating for oil and gas, laying of pipe lines, building tanks, and structures thereon to produce and take care of said products when produced, and the term which it was to endure is five years from its date, and as long thereafter as oil and gas or either of them is produced from the premises. The lessee covenants and agrees therein to deliver to the lessor, free of cost, in the pipe lines to which the wells may be connected, the equal one-eight part of all oil produced and saved from the premises, and to pay $150 each year in advance for the gas from each well. There is also a surrender clause to the effect that upon the payment of $1, at any time, the lessee or his 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 determine.
Section 2260, Rev. Laws, is as follows:
"Any person who buys or sells, or in any manner procures, or makes or takes any promise or covenant to convey any pretended right or title to any lands or tenements, unless the grantor thereof, or the person making such promise or covenant has been in possession, or he and those by whom he claims have been in possession of the same, or of the reversion and remainder thereof, or have taken the rents and...
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