Witt v. Westheimer
| Decision Date | 05 April 1938 |
| Docket Number | Case Number: 27308 |
| Citation | 182 Okla. 645,79 P.2d 250,1938 OK 249 |
| Court | Oklahoma Supreme Court |
| Parties | WITT et al. v. WESTHEIMER et al. |
¶0 1. APPEAL AND ERROR - Review - Sufficiency of Evidence to Support Judgment.
In a purely equitable case, this court will consider the whole record, weigh the evidence, and where the judgment of the trial court is not clearly against the weight of the evidence, the same will be affirmed.
2. APPEAL AND ERROR - Review - Assignments of Error Unsupported by Authority.
Assignments of error, unsupported by authority, will not be reviewed, unless it is apparent without further research that they are well taken.
3. CONTRACTS - Construction - Written Portions Govern Over Printed Portions.
"Under provisions of section 5054, C. O. S. 1921, the written portions of a contract govern over the printed portions, in case of conflict." American Inv. Co. v. Davenport, 151 Okla. 184, 3 P.2d 434.
4. OIL AND GAS - Covenant to Explore not Implied Where Purchase of Land Primary Purpose for Executing Lease.
Where the purchase of land and not the exploration and development thereof is the primary purpose for the execution of an oil and gas lease thereon, a covenant to explore for oil and gas will not be implied.
Appeal from District Court, Love County; J.I. Goins, Judge.
Action by Simon Westheimer and another against J. H. Witt et al. Judgment for plaintiffs, and defendants appeal. Affirmed.
Dolman, Dyer & Dolman, Edward H. Chandler, Summers Hardy, and Ralph W. Garrett, for plaintiffs in error.
Earl Appleton Brown, for defendants in error.
¶1 This action was filed July 27, 1935, by Simon Westheimer and F.B. Conrad against J. H. Witt et al., seeking cancellation of certain instruments allegedly constituting a cloud on an oil and gas lease owned by the plaintiffs. Judgment was for plaintiffs, and defendants bring this appeal.
¶2 The parties will be referred to as they appeared below.
¶3 On November 5, 1915, plaintiffs owned jointly a 170-acre tract of land in Love county, which, on said date, was conveyed to J.H. Witt and wife Matilda. The consideration was $3,400, and included the assumption of a first mortgage in the amount of $1,250. The balance of $2,150 was payable by six notes, the first being due November 5, 1916, and the remaining five, annually thereafter. All were secured by a second mortgage on the land. At the same time a 99-year oil and gas lease was executed by the Witts to the plaintiffs, wherein it was stated: "This lease is executed as a part of the consideration of a deed of even date herewith covering above-described land." No down payment was made and the Witts went into possession under the deed on January 1, 1916. The debt evidenced by the first mortgage was paid, and the last note to plaintiffs was paid before maturity. All the instruments were properly recorded.
¶4 On April 17, 1935, the Witts executed a top lease on their land to one Frank Murta for ten years, which was assigned to the Sinclair Prairie Oil Company on May 9, 1935.
¶5 On April 25, 1935, the Witts conveyed to Marshall Strozier an undivided one-half interest in the oil and gas rights of the 170 acres. By subsequent conveyances, defendants E.J. Hendon and W.R. Bowman became owners of undivided interests in the mineral rights conveyed to Strozier.
¶6 Plaintiffs pleaded that their lease with the Witts was a part of the consideration for the land and prayed cancellation of the Murta lease and assignment thereof to Sinclair Prairie Oil Company.
¶7 Frank Murta disclaimed any interest.
¶8 Defendants Bowman and Hendon answered separately and averred they were the owners of 5/170 interest in the mineral rights, subject to some oil and gas lease, but made no allegation concerning the validity of the two leases.
¶9 Sinclair Prairie Oil Company and Strozier separately answered and alleged substantially that the oil and gas lease from the Witts to plaintiffs was invalid because it was obtained by fraud and executed without consideration; that lessees had failed to pay rentals thereunder, and comply with the express and implied covenants to drill, and had abandoned the same. These defendants then prayed cancellation of the plaintiffs' lease.
¶10 The Witts answered by alleging that they never knowingly executed the lease, and that if they did execute said lease, their signatures were obtained by fraud; that they paid plaintiffs in cash the full value and purchase price for the land; that said lease had been on record for 20 years, during which time the lessees had made no attempt to develop the promises and had made no delay rental payments; and that the lessees had breached the implied covenant to develop, and by their conduct had abandoned and forfeited the lease.
¶11 Defendants then prayed cancellation of plaintiffs' lease.
¶12 The case was tried to the court, and after making findings of fact and conclusions of law, judgment was rendered for the plaintiffs.
¶13 In their first proposition, denominated the Issue of Fraud, the defendants argue that findings of fact 2, 3, and 4 are not supported by the evidence. The above findings are substantially that the lease executed by the Witts, November 5, 1915, to plaintiffs was a part of the consideration for the sale of the land by the plaintiffs to the Witts; that there was no fraud in the execution of the lease or in the transactions leading to its execution; that the lessors executed said lease with full knowledge of its contents and import; and that it was executed in pursuance of the agreement between the plaintiffs and the Witts.
¶14 In a purely equitable case, this court will consider the whole record, weigh the evidence, and when the judgment of the trial court is not clearly against the weight of the evidence, the same will be affirmed. Rees v. Egan, 66 Okla. 20, 166 P. 1038. After considering the whole record, we are of the opinion that the above findings are not against the clear weight of the evidence.
¶15 Under proposition No. 2, defendants argue that the court committed an error of law in refusing to permit introduction of testimony of plaintiff F.B. Conrad, by which defendants sought to show that the land was deeded to plaintiffs by one Rector in satisfaction of a mortgage in the amount of $1,130 to the First National Bank of Marietta.
¶16 Counsel cites no authority in support of this proposition.
¶17 Decisive of this is the rule stated in the case of Title Guaranty & Surety Co. v. Slinker, 35 Okla. 128, 128 P. 696:
"Assignments of error * * * unsupported by authority, will not be noticed by the court, unless it is apparent without further research that they are well taken."
¶18 Under proposition No. 3, defendants contend that plaintiffs' lease, properly construed, required payment of delay rentals during the 99-year term, and since it is admitted that neither rentals were paid nor development had, the lease is of no force and effect.
¶19 The lease was a regular ten-year printed (Prairie) Form 10, with the blanks filled in to conform with the agreement between the parties. The printed term clause provided:
"It is agreed that this lease shall remain in force for a term of ten years from this date, and as long thereafter as oil or gas, or either of them is produced from said land by the party of the second part, their heirs, administrators, executors, successors or assigns."
¶20 In the signed lease the word "ten" had been stricken and "ninety-nine" typewritten in place thereof.
¶21 The development clause in the printed form was as follows:
"The party of the second part agrees to complete a well on said premises §§§§§ from the date hereof, or pay at the rate of§§§§§ Dollars for each additional §§§§§ such completion is delayed from the time above mentioned for the full completion of such well until a well is completed; and it is agreed that the completion of such well shall be and operate as a full liquidation of all rent under this provision during the remainder of the term of this lease."
¶22 In the lease signed by the parties the words "from the date hereof" and "Dollars" were stricken, and the blanks were filled as indicated by the emphasized words in the following:
"The party of the second part agrees to complete a well on said premises within the term of this lease, or pay at the rate of twenty-five cents per acre per annum for each additional year such completion is delayed from the time above...
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