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forms of embezzlement, and the punishment | may mislead a prisoner in making his deordained for its commission is the same as fense, and because they may expose him to the punishment for embezzlement proper. the danger of being again put in jeopardy for We feel quite clear that the principle upon the same offense.” Harris v. People, 61 N. which State v. Brown, 38 Kan. 390, 16 Pac. Y. 148. See, also, State v. Thompson, 28 Or. 2.39, was decided applies in this case, and that 296, 42 Pac. 1002; Kruger v. State, 135 Ind. the court should have instructed as the de- 573, 3.) V. E. 1019; Oats v. State, 1.33 Ind. fendant requested." The argument seems 436, 55 N. E. 226; State v. Wilson (Kan.) equally applicable here, for the law calls the 80 Pac. 639. Complaint is also made of a (rime larceny, and that is what it is in ef- variance between the allegation and the proof fert. Whatever doubt there might otherwise of the date of the mortgage. There was no be regarding the true interpretation of the variance. The allegation was of the time the statute is removed by an examination of its mortgage was made, and the evidence cortitle, which reads as follows: "An act re- responded with the allegation, although the lating to chattel mortgages, providing pun- mortgage bore an earlier date. ishment for the selling, destroying or dis- A plea in abatement was filed and overposing of chattel-mortgaged property or any ruled. As a reason why this should be repart thereof, with intent to defraud, and re- garded as error it is argued that, since there pealing chapter 107 of the Laws of 1899.” were two counts in the information, there Law's 1901, p. 197, c. 103. Apart from any should have been two in the complaint and consideration of whether under such a title warrant. There was no such necessity. The any sales roull be (lenounced excepting those practice does not require the separate statemade with intent to defraud, the language ment of clifferent offenses in these prelimshows a legislative purpose to penalize some inary proceedings. The forms of the verdicts that were of that character, and, inasmuch are criticised, but they seein to be sufficient. its only one kind of sale is described in the Other specifications of error have been act. it is a fair inference that what the made, but no discussion of them is thought Legislature had in mind in that connection necessary. was a sale made with a fraudulent design. No error being found affecting the first It is, of course, competent to have recourse count, the conviction based upon it will be to the title for whatever light it may shed affirmed. The judgment upon the second upon a doubtful meaning. 26 A. & E. Encycl. count will be reversed for the reasons given, of L. (211 Ed.) (627, 028. We conclude that and the case will be remanded for such furit was error to omit an instruction regarding ther steps as may be found proper under the the intent of the defendant, and the convic- decision. All the Justices concurring. tion upon this count must therefore be set aside. This conclusion does not affect the pro

(74 Kan. 581) (nedings based upon the other count (State

RINGLE et al. v. QUIGG et al. 1. Guettler, 34 Kan. 592, 9 Pac. 200), and it (Supreme Court of Kansas. Nov. 10, 1906.) remains to determine whether any of the 1. CANCELLATION OF INSTRUMENT-PETITIONitssignments of error which affect that count SUFFICIENCY. are well founded. In the information the

In an action by the lessor, to cancel a gas

and oil lease, on the ground that it is void, the Mortgage involved was described as having

petition alleged the execution of the lease, givbeen exeruted by the defendant and his wife ing a copy thereof, which is given hereinafter. to secure a note signed by them.

by them. The evi

No facts outside of the lease itself indicating once showed that both had signedl the mort

imposition, fraud or mistake, or that the in

terests of the lessor were being or would be ingage, which included an assumption of lia

juriously affected by any of the provisions of bility for any part of the debt remaining un- such instrument, were stated in the petition. paid after the property should be exhausted,

II clan, that a general demurrer to such petition

was properly sustained. but the defendant alone signed the note.

TEd. Note.--For cases in point, see Cent. Dig. It is strenuously urged that this was a fatal vol. 8, Cancellation of Instruments, $$ 77, 78.] variance. There is nothing substantial in

1. VIXES AND MIXERALS-GAS LEASE -VAthe contention. The essence of the offense LIDITY. (harged was the fraudulent concealment of Igas lease is not void merely because the the property to the prejudice of another's

lessee stipulates therein that at the end of five

years, he shall have the option to keep the lease rights. The form of the mortgage bad little

in force by then doing some act which at the to do with it-that of the note still less. date of the lease he is unable to perform. There was no conceivable way in which the 3. SANE-PERFORMANCE. lefendant could have suffered any embar

A lessor in a gas lease has no right to ex

pect the lessee to perform the conditions therein rassment or injury, or have been in any way

on his part immediately, when, by the provimisled by the recital in the information that sions of the instrument, he is permitted to delay his wife as well as himself had executed performance for five years. the note which the mortgage secured. "The

TEI. Vote. For cases in point, sec Cent. Dig. strictness of the ancient rule as to variance

vol. :34, Mines and Minerals, $$ 20.5, 206.1

4. NANE-AMBIGUITY. between the proof and the indictment has

I written instrument is not void for ambeen much relaxed in modern times. Vari

biguity when the contrart of the parties can be ances are regarded as material, because they clearly and certainly ascertained therefrom.

5. SAME-ROYALTIES.

for each month while so taken. Royalties Although obtaining royalty may be the es

to be paid in cash on the 1st day of each sence of a gas and oil lease, the time when operations under the lease shall commence is a

month for the preceding month, payable proper subject of agreement between the par- at Eik ('ity, Kansas. In case that oil or ties, and, in the absence of imposition, fraud, or other products than gas are found the mistake, the provisions of the contract should be upheld.

loyalty shall be one-tenth of such product

delivered it the surface near (Ed. Xote:--For cases in point, see Cent. Dig.

mouth vi vol. 31, Wines and Minerals, $ 203.]

Well or shaft. It is mutually agreed that (Syllabus by the Court.)

the parties of the second part shall begin

operations on this lease within five years Error from District Court, Montgomery

(5 yrs.) from the delivery thereof, or in case County; Thos, J. Flannelly, Judge.

of failure to do so, then and in that case it Action by A. D. Ringle and others against

shall be at the option of party of the second 1. R. Quigs and others. Judgment for de

part to lay pipes from mains or wells to fendants, and plaintiffs bring error. Af

within 30 feet of residence occupied by first tirmed.

party on above-described land, and furnish On the 19th day of December, 1900, the gas for stoves and for lights, and no other or plaintiff's in error Were the owners of the additional expense shall be incurred under lans in controversy, and otcupied the sime this lease by second party, and this lease as a residence and homestead. On the date xhall be binding so long as gas shall be above mentioned they executed and delivered thus furnished, provided, that if wells are to the defendants, 4. R. Quigg and others, sunk, royalties shall be paid as above proa lease which reads: "This agreement, made vided for, otherwise this lease shall be null and executed in duplicate this 19th day of and void, and no longer binding on either December, 1. D. 1900, between A. D. Ringle party. It is mutually agreed that if gas is disand Sarah Ringle, parties of the first part, covered on sail land that the parties of the and A. R. Quigg, O. L. Hayward, S. S. Har- first part shall have free of charge a sufficient mon, and M. L. Stephens of Elk City, Kaun- quantity of gas for three stoves and three sas, parties of the second part, witnesseth: lights to be taken at the well so discovered That the said parties of the first part, for and utilized, or at the nearest pipe line, and the consideration of one dollar in hand that the party of second part, or its assigns, paid, the receipt of which is hereby acknowl- shall have gas if so discovered without Alged, and other valuable considerations, royalty for the further development or use hereinafter mentioned, do hereby lease', dem- of said products herein provided for the ise and let to the said party of the second part, above-described land. In consideration of the their heirs or assigns for the term of twenty premises the parties of the first part give (20) years and as much longer as gas or oil and grant to the party of the second part, may be found in paying quantities, from the or its successors or assigns, the exclusive date hereof, the following described real es- right to lay and maintain and remove pipe tate situated in the county of Montgomery lines for gas and oil, over and across said and state of Kansas, to wit: The northwest land: said pipe lines to be laid at least 12 quarter (W. W. 14) except one acre to schooi. inches uder the ground unless otherwise of section 35, township 32 south, range 13 mutually agreed, and the surface of the past of the oth P. J... containing 1.39 (les. ground left as near as practicable in its With full and exclusive power and authority original condition. The party of the second to the party of the second part or their heirs i part agrees to do no drilling within 200 feet or assigns, to enter upon the above-described of the building [house or barn unless mulands and drill, dig, or mine for gas, oil, tually agreed upon. Witness our hands and or any other mineral or substance of com- seal the day and year above written." mercial value, taking upon and removing This lease was duly acknowledged on the from said land any machinery or appliances same day and recorded in the office of the necessary to the prosecution of said work; register of deeds March 12, 1903. The lessees to erect any necessary buildings, tanks, or afterwards assigned their interest in said tracks for the legitimate use of said work lease to the defendant the Elk City Gas or the products thereof, and to remove or & Oil Company, and it executed and deconvey said products off said land by any livered to the defendant the R. J. Waddell reasonable methods, and the right from time Investment ('ompany a written instrument, to time to repair and replace the same, the legal nature and effect of which does avoiding as far as may be practical, damage not appear, except that it was given as seto growing crops or fences, but in case of curity. This instrument was recorded in such damage, to pay same as may be de. the otice of the register of deeds, and contermined by appraisers. In consideration of stitutes a cloud upon the plaintiffs' title the premises, the party of the second part to the leased premises. July 13, 1903, the agrees to pay as royalty to the parties of the plaintiffs notified the lessees and their asfirst part upon each well of gas from which signs that unless they canceled the lease ans product is taken, having any commercial suit woulii he brought to compel the cancelvalue, the sum of five dollars per month lation thereof as void. Upon failure of the

lessees to comply with this notice, plaintiffs commenced this action in the district court of Montgomery county July 24, 1903. The petition was amended from time to time, ind a second amended petition was filed March 15, 1904, containing three causes of action. The defendant the Elk City Gas & Oil Company filed a general demurrer to each of these causes of action separately, which was by the court sustained, and judgment entered against the defendants for costs. The petition to which the demurrer was sustained is very lengthy, and the averments in the different causes of action are duplicated to such an extent that it will be unnecessary to give a copy thereof at length, but so much as will give an intelligent view of the court's decision may be stated as follows:

"First Cause of Action. “(1) Leave of the court obtained to file this second amended petition, the plaintiff's represent and allege that they are husband and wife, and that said defendant the Elk City Gas & Oil Co. is a corporation organized under the laws of the state of Kansas with its principal office at Elk City, Montgomery county, Kansas, and that said defendant the R. J. Waddell Investment Company is also a corporation with one place of business or office at Kansas City, state of Missouri.

“(2) Said plaintiff's further represent that on the 19th day of December 1900, they were, ever since have been, and at this time are, the owners in fee and the sole occupants of the following-described land, situated in Alontgomery county, Kansas, to-wit: The northwest quarter (14) of section thirty-five (35) in township thirty-two (32), south of range thirteen (13) east, except one (1) acre; that on the date aforesaid, at said county and state, said defendants Quigg. Hayward, Harmon, and Stephens obtained from said plaintiff's a certain printed and written instrument, and then and there assigned the same to their codefendant the Elk City Gas & Oil Company, which said instrument appears of record in the office of register of deeds in said county in Deed Record 66 at page 297, a true copy of which said instrument, inluding said assignment, is hereto attached, marked 'Exhibit A,' and made a part of this second amended petition and first cause of action.

“(3) And said plaintiffs further represent and allege that said instrument was and is null and void, and that they have declared their intention to treat said instrument as null and voidl, and on the 13th day of July, 1903, they notified said defendants in writing that they, said plaintiffs, intended so to treat said instrument, and demanded said defendants to cancel and release the same of record within 10 days, but that said defendants refused, and still refuse, though neither of said defendants had endeavored to occupy said

land by virtue of said instrument prior to the service of said notice, nor have said defendants, or either of them, before or since the service of said notice, made any move ment or attempt toward beginning operations on said land, or endeavored to occupy the same or any part thereof for the purpose of beginning operations thereon by virtue of said instrument.

“(4) And said plaintiffs further represent that said instrument was and is null and void und subject to cancellation, because they say that said defendants did not, nor did either of them, directly or indirectly, pay said plaintiffs or either of them, the consideration of one dollar specified in said instrument, nor any sum or other thing of value whatsoever in consideration for the making and delivery thereof.

(5) The said plaintiffs further allege that said defendant the R. J. Waddell Investment Company claims an estate in said lands through some transaction had with its codefendant the Elk City Gas & Oil Company, which said transaction said plaintiffs allege was and is null and void.

"(6) Said plaintiffs therefore demand judgment against said defendants, and each of them, their assigns and successors, and each of them, that said instrument, to wit, the aforesaid so-called lease, be declared to be null and void, vacated, and set aside, and held for naught; and that each and all of said defendants, their assigns and successors, and each of them, be decreed to be foreclosed of all interests and estates they or either of them may claim in said land. And said plaintiffs demand judgment and costs.

"Second Cause of Action. “Paragraphs 1, 2, and 3 of this cause of action are the same as the first three paragraphs of the first cause of action, as above stated.

"(4) And said plaintiffs allege that said instrument was and is null and void because of the several causes and infirmities hereinafter set forth.

"First. Because, at the time of and prior to the making and delivery of said instrument, said plaintiffs had no knowledge or means of obtaining knowledge of and concerning the authority, powers, and rights of the lessees and their assigns to lay pipes and mains over, on and within the lands in the neighborhood of and adjacent to plaintiff's lands, so as to provide the plaintiffs with gas for fuel and lights in the event of failure for five years on the part of said lessees and their assigns to begin operations on said lands by virtue of said lease; and while said plaintiffs allege that the real value of sufficient of the gas product to provide said plaintiffs with fuel and lights, was and is wholly inadequate and unconscionable as compared with considerations to be real ized by said lessees and their assigus there

for, and wholly inadequate and insufficient | terms provide for the forfeiture or payas a penalty to guarantee the performance ment of any sum whatsoever by said leson the part of said lessees and their assigns, sees or their assigns as compensation for or or as compensation for said plaintiffs for damages sustained by said plaintiffs, their damages resulting from nonperformance, heirs and assigns, in the event of the failure they also allege that said defendants have or refusal of said lessees and their assigns not, nor has either of them, at any time to develop said land, or to explore thereon

wned or had control over mains or wells for gas and oil. from which pipes could have been laid to "Sixth. Because the terms of said lease do within fifty feet of plaintiff's residence; nor not contain any of the necessary covenants have said defendants or either of them at for the establishment of the elements of muany time had the lawful right to lay pipes tuality as to considerations and obligations ind mains, or either, over, on, or within | imposed or intended to be imposed upon the lands within the neighborhood of, or said parties, their heirs and assigns respecidjacent to the lands specified in, said lease, tively; and the disparity between performnor have said defendants or either of them

ances required of the parties respectively at any time had any assurance that they

is so unreasonably great and unconscionable or either of them could obtain such right. as to render it voidable.

"Second. Because at the time said plain- "Seventh. Because it was the design of tiff's made and delivered said instrument said lessees, as plaintiffs allege, to procure they had reason to and did believe that said

said lease and assign the same for the purlessees would cause operations to be com

poses of speculation only, and thereby realmenced on said lands for the discovery of ize profit without creating any liability yas and oil soon after such delivery, and

against themselves, their heirs or assigns. especially within reasonable time thereafter,

by virtue of said instrument. notwithstanding the period of five years Eighth. Because it was and is the de written therein, all which said lessees and

sign of said defendant the Elk City Gas & their assigns at the time of the delivery and

Oil Company, as plaintiffs allege, to procure assignment of said lease, respectively, well

the assignment of, and hold, said lease for knew; wherefore, said plaintiffs further al

the purposes of speculation only, and therelege that operations on said lands for the

by realize profit without paying value thereliscovery of gas and oil within reasonable

for, and without

without creating any liability time after the delivery of said lease and

against said defendant company or the memthe vigorous prosecution of such operations bers thereof. were of the essence of the contract, all which

"And said plaintiffs further allege that said vaid lessees and their assigns at the times

defendant the R. J. Waddell Investment itoresaid well knew; which said reasonable

Company claims an estate in said lands time, said plaintiffs allege, had elapsed long through some transaction had with its coprior to the service of the notice aforesaid defendant the Elk City Gas & Oil Comon said defendants.

pany, which said transaction said plaintiffs “Third. Because the terms of said lease allege was and is null and void. are ambiguous and uncertain, and by reason thereof said plaintiffs cannot anticipate fu

“Third Cause of Action. tire performance and operation by said les- "Paragraphs 1, 2, and 3 of this cause of sees or their assigns for the development action are the same as the first three paraof said land for the discovery of gas and graphs of the first cause of action, as above oil, and therefore said plaintiffs, by reason stated. of the premises, are and will be interrupted “That since the assignment aforesaid of and hindered in the free enjoyment and dis- said instrument, the said defendant the position by them of their land, to the great | Elk City Gas & Oil Company, in violation and irreparable injury to themselves and

of law and of the terms of said instrument, their heirs.

and without any authority whatever, and “Fourth. Because, by the terms of said without the knowledge or consent of plainlease, said lessees and their assigns are un- tiffs, made and delivered to said defendant (ler no obligation to pay any consideration the R. J. Waadell Investment Company, an whatever, other than a prospective royalty, instrument in writing with the numbers of dependent on so-called covenants, leaving it the land aforesaid and the numbers of other to the option of said lessees and their as- lands written therein, which said instrusigns to develop said lands for gas and oil. ment in writing so made and delivered to

"Fifth. Because the terms of said instru- said defendant the R. J. Waddell Investment ment do not, by inference or otherwise, im- Company was filed for record in the office pose any obligation on said lessees and their

of register of deeds within and for the said assigns, or either of them, to begin opera- county of Montgomery, and thereafter duly tions on said land to explore for gas and recorded in Mortgage Record No. 56 at oil, nor to continue such operations-such page 97 therein, and pages next following. operations and the continuation thereof be- | And while said plaintiffs allege that they do ing the essence of the contract; nor do said not know the exact nature or full force of

11

said instrument, yet they allege that the Ray v. Western Pa. Gas Co. (Ta.) 20 Atl. 1065, same was made, delivered, and placed of 12 L. R. A. 290, 21 Am. St. Rep. 922; Glasrecord to secure the payment of a large gow v. Chartiers Oil Co. (Pa.) 25 Atl. 232; sum of money, to wit, the sum of $12.000; Eclipse Oil Co. v. So. Pa. Oil Co. (W. Va.) 34 and they also allege that said instrument S. L. 923; Roberts v. Beitman (W. Va.) 30 Creates a cloud on the plaintiff's title to S. E. 9); Federal Oil Co. v. West. Oil Co. said land, to the detriment and irreparable (C. C.) 112 Fed. 373; Martel v. Jennings (La.) injury of said plaintiffs and their heirs.

38 South. 233. None of these cases are in "That said defendant the R. J. Waddell point here. No question is decided by any Investment Company claims an estate in

of them which would if followed dispose said land by virtue of the instrument afore

of this case. The instruments involved in said, but said plaintiffs allege that said claim

the cases cited are in substance quite similar

to the lease in question. There is a margin is null and void.

of difference, however, between the facts in"Said plaintiffs therefore demand judgment

volved in this case and those cited, susficient against said defendants and each of them,

to destroy their applicability to the question their assigns, successors, and each of them,

here presented. None of the

of the cases menthat the instrument last aforesaid and the

tioned were brought to cancel the instrument instrument first aforesaid, to wit, said so

involved, because it was void, but the object (alled lease, be decreed to be null and void,

in each case was to determine the rights vacated, and set aside and held for naught,

of the parties thereunder. It will be necesand that each and all of said defendants,

sary therefore to consider the validity of the their assigns and successors, and each of

lease in controversy, upon its own provisions them, be decreed to be foreclosed of all

and conditions. Taking the objections in interests in said land. And said plaintiffs

their order, the first is that it was impossible alemand judgment for costs."

for the lessee, when the lease was executed, Exhibit A is the lease given above.

to perform his option, by furnishing gas at R. II. Nichols, John P. T. Davis, and Whit- the end of five years, to keep the lease alive. ('omb & lIamilton, for plaintiffs in error. S. We do not understand that an option to do II. Piper, for defendants in error.

something five years in the future, is void merely because the person making the agree

ment is unable to perform the contract at GRAVES, J. (after stating the facts). This

once. The second objection is that the lesis an action to cancel a gas lease on the

sors expected

expected operations would be comground that it is void. The particular de

menced immediately, and not be delayed durfects which vitiate the lease, as alleged in

ing the five-year linit, and have been disthe petition, may be summarized as follows:

appointed in these expectations. We do not (1) The lessees were unable when the lease

understand that a written instrument is void, was executed to perform the conditions there

merely because one of the parties expects of having no right to lay pipes to lessors'

the other to perform the conditions thereof premises, which they might want to do, at

on his part at once, when by the express the end of five years. (2) The lessors ex

stipulations of the agreement such performpected operations to be commenced before

ance may be delayed five years. The third the expiration of the five-year limit. (3)

objection is that the lease is ambiguous. The lease is ambiguous. (4, 5) While the

While the terins of this instrument are not receipt of royalty is of the essence of the

as clear and specific, as usual in such imcontract, the lease imposes no obligation

portant agreements, yet it is not dificult to upon the lessees to begin or continue work.

ascertain therefrom what the parties in(6) The provisions of the lease lack mutual

tended thereby, and when this can be done, ity. (7) The design of lessees and assigns is

written contracts should not be set aside as to hold the land for speculative purposes

voidl, merely because to some degree amonly. A general demurrer was filed to each

biguous. The fourth and fifth objections of the several causes of action, which was

are apparently regarded as the most importsustained. The plaintiffs in error standing ant, and are chiefly relied upon. It is claimed upon their petition, judgment was entered

that the receipt of royalty is the essence of against them for costs. They bring the case

the contract, and the stipulations therein do here, alleging that the court erred in sus

not require the lessees to begin or continue taining the demurrer. This is the sole ques- operations. The lessees are thereby able to tion presented to this court.

defeat the real object of the lease, and for We are unable to attach the importance that reason the instrument is void, in the to these alleged defects which has been given language of the brief of plaintiff in error: to them by the plaintiff's in error. We "It cannot be said that this lease was valid cannot agree with the contention that the for a single minute, either before or after lease is so inherently vicious as to be void. the assignment thereof." This objection is In support of their claim the plaintiffs in | founded principally

founded principally upon paragraph 4 of error cite the following cases: Pipe Line, the lease. etc., v. Teel (Tex. Civ. App.) 67 S. W. 515; It may be conceded that obtaining royalty

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