Warmack v. Zingg

Decision Date15 April 1929
Docket Number(No. 262.)
Citation16 S.W.2d 17
PartiesWARMACK v. ZINGG.
CourtArkansas Supreme Court

H. B. McKenzie, of Prescott, for appellant.

McRae & Tompkins, of Prescott, for appellee.

MEHAFFY, J.

The appellant instituted this suit to partition an oil and gas lease on land described in the complaint, and for an accounting on certain royalty interests from oil produced and sold by the appellee R. M. Zingg.

The defendants filed answer denying all the material allegations in plaintiff's complaint, except as to the royalty interests of appellant, and admitted that the defendant was due appellant $61.80. The court entered a decree finding in favor of the plaintiff against the defendant as to the royalty interests for $61.80 and costs, and dismissed the complaint for want of equity in so far as the other relief asked was concerned. There are only two questions to be considered by this court. The first is whether there was a forfeiture of the lease, and, the second, whether a judgment for all the costs should be against the defendant.

The first is purely a question of fact, and we deem it unnecessary to set out or call attention to the evidence, except that part of it relating to the forfeiture.

Fanny Kendrick testified that the rentals were paid regularly until the lease lapsed; the rentals were paid to Solberry McKinney, who was authorized in writing to collect same. Witness does not remember when the last rentals were paid to her, but it was before the lease was made to Warmack; that no rentals were paid to her after that time. Her portion of the rentals was a little more than $5. Witness never received the rentals due just prior to the lease to Warmack; it was never tendered to her. After the lease was made to Warmack, Warmack paid the rentals.

P. R. Warmack testified that he took a lease from Fanny Kendrick dated February 1, 1924, and that six months, or a year later, he sold it to J. B. Warmack the appellant.

J. B. Warmack testified as to the purchase of the lease, and that he paid the rentals. The well had been drilled by Miss Zingg, which produced oil, but he did not know how much. Before he purchased the lease, he had been told that the Zingg lease was forfeited.

Solberry McKinney testified: That the rental due December 1, 1923, was tendered to him on the first Sunday in February, and he refused to accept it, because it was tendered two months after the time it was due; that he finally accepted it and sent it to his sister, but she returned it. That Miss Zingg insisted on him accepting the money, that he told her he had sent Fanny her part of it, and that she did not accept it; that after that time he never sent any more money to his sister. That Miss Zingg had not settled with him for the royalty. That Miss Zingg paid him $20 on February 7, 1924; that was the only $20 she ever paid; she paid it in cash. That he had collected several payments and turned the money over to his sister. He also testified that the family did not want Miss Zingg to drill in the cemetery. Witness testified that the part of the money sent to his sister was returned with the explanation that she had leased her interest to Warmack, and that she had never received any rental after that.

R. M. Zingg testified that she was the owner of the oil and gas lease in controversy and that she tendered the rental due a week or ten days before December 1, 1923. She tendered it to Solberry McKinney, and he refused to accept it. Later, she learned that the trouble was that they did not want any drilling in the cemetery, and he said, "if I would not drill in the cemetery he would accept the lease rental"; this was agreed upon, and the $20 was paid. She had always paid the rent to S. D. McKinney. There is a good deal of testimony about the cemetery and a controversy about the McKinney's not wanting any drilling done in the cemetery.

The appellant insists on a reversal of the case on the ground that the lease had been forfeited, and states that, as to whether the tender of rentals was made depends upon the testimony mainly of two witnesses, the defendant Miss Zingg and S. D. McKinney. It is undisputed that the rentals had been paid prior to this time to S. D. McKinney and accepted by him up to December 1, 1923. Miss Zingg testified that she tendered the rental a week or 10 days before it was due; McKinney testified that the rental was not tendered to him until February 7, 1924. It is conceded by appellant that, under the testimony of these two witnesses alone, the court would probably be justified in saying that the plaintiff had not shown by a preponderance of the evidence that the lease had been forfeited, but it is contended that the facts and circumstances corroborate McKinney, and that the preponderance of the evidence shows that the lease was forfeited. The lease itself provided that, if no well was commenced on said land on or before the 1st day of December, 1921, this lease shall terminate as to both parties unless the lessee on or before that date shall pay or tender to the lessor or to the lessor's credit in the Bank of Waldo at Waldo, Ark., or its successors, which shall continue as a depository regardless of change in ownership of said lands, the sum of $.25 per acre, which shall operate as a rental and cover the privilege of deferring the commencement of a well for six months from said date. It is agreed that a tender to S. D. McKinney, if made before the time expired, would prevent a forfeiture. The lease itself provides that, if the lessee tenders or pays to the lessor, this would prevent a forfeiture, and the lessor had constituted S. D. McKinney her agent to collect, and he had collected up to that time. Therefore, if the tender was made, as testified to by Miss Zingg, there was no forfeiture. If the tender was not made, as McKinney says it was not, then there was a forfeiture. It is argued by the appellant that Miss Zingg had the choice of two alternatives; she could tender to the lessor or to the Bank of Waldo. Also, that she should have tendered to the bank and thereby avoided any litigation or dispute. It is contended that her failure to do so, under the circumstances, is a...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT