forms of embezzlement, and the punishment ordained for its commission is the same as the punishment for embezzlement proper. We feel quite clear that the principle upon which State v. Brown, 38 Kan. 390, 16 Pac. 259, was decided applies in this case, and that the court should have instructed as the defendant requested." The argument seems equally applicable here, for the lay calls the crime larceny, and that is what it is in effeet. Whatever doubt there might otherwise be regarding the true interpretation of the statute is removed by an examination of its title, which reads as follows: "An act relating to chattel mortgages, providing punishment for the selling, destroying or disposing of chattel-mortgaged property or any part thereof, with intent to defraud, and repealing chapter 167 of the Laws of 1899." Laws 1901, p. 197, c. 105. Apart from any consideration of whether under such a title any sales could be denounced excepting those made with intent to defraud, the language shows a legislative purpose to penalize some that were of that character, and, inasmuch as only one kind of sale is described in the act. it is a fair inference that what the Legislature had in mind in that connection was a sale made with a fraudulent design. It is, of course, competent to have recourse to the title for whatever light it may shed upon a doubtful meaning. 26 A. & E. Encycl. of L. (2d Ed.) 627, 628. We conclude that it was error to omit an instruction regarding the intent of the defendant, and the conviction upon this count must therefore be set aside.

This conclusion does not affect the proceedings based upon the other count (State v. Guettler, 34 Kan. 582, 9 Pac. 200), and it remains to determine whether any of the assignments of error which affect that count are well founded. In the information the mortgage involved was described as having been executed by the defendant and his wife to secure a note signed by them. The evidnce showed that both had signed the mortgage, which included an assumption of liability for any part of the debt remaining unpaid after the property should be exhausted, but the defendant alone signed the note. It is strenuously urged that this was a fatal variance. There is nothing substantial in the contention. The essence of the offense charged was the fraudulent concealment of the property to the prejudice of another's rights. The form of the mortgage had little to do with it-that of the note still less. There was no conceivable way in which the defendant could have suffered any embarrassment or injury, or have been in any way misled by the recital in the information that his wife as well as himself had executed the note which the mortgage secured. "The strictness of the ancient rule as to variance between the proof and the indictment has been much relaxed in modern times. Variances are regarded as material, because they

may mislead a prisoner in making his defense, and because they may expose him to the danger of being again put in jeopardy for the same offense." Harris v. People, 64 N. Y. 148. See, also, State v. Thompson, 28 Or. 296, 42 Pac. 1002; Kruger v. State, 135 Ind. 573, 35 N. E. 1019; Oats v. State, 153 Ind. 436, 55 N. E. 226; State v. Wilson (Kan.) 80 Pac. 639. Complaint is also made of a variance between the allegation and the proof of the date of the mortgage. There was no variance. The allegation was of the time the mortgage was made, and the evidence corresponded with the allegation, although the mortgage bore an earlier date.

A plea in abatement was filed and overruled. As a reason why this should be regarded as error it is argued that, since there were two counts in the information, there should have been two in the complaint and warrant. There was no such necessity. The practice does not require the separate statement of different offenses in these preliminary proceedings. The forms of the verdicts are criticised, but they seem to be sufficient.

Other specifications of error have been made, but no discussion of them is thought necessary.

No error being found affecting the first count, the conviction based upon it will be affirmed. The judgment upon the second count will be reversed for the reasons given, and the case will be remanded for such further steps as may be found proper under the decision. All the Justices concurring.

(74 Kan. 581)

RINGLE et al. v. QUIGG et al. (Supreme Court of Kansas. Nov. 10, 1906.) 1. CANCELLATION OF INSTRUMENT-PETITIONSUFFICIENCY.

In an action by the lessor, to cancel a gas and oil lease, on the ground that it is void, the petition alleged the execution of the lease, giving a copy thereof, which is given hereinafter. No facts outside of the lease itself indicating imposition, fraud or mistake, or that the interests of the lessor were being or would be injuriously affected by any of the provisions of such instrument, were stated in the petition. Held, that a general demurrer to such petition was properly sustained.

[Ed. Note. For cases in point, see Cent. Dig. vol. 8, Cancellation of Instruments. $$ 77, 78.] 2. MINES AND MINERALS-GAS LEASE-VALIDITY.

A gas lease is not void merely because the lessee stipulates therein that at the end of five years, he shall have the option to keep the lease in force by then doing some act which at the date of the lease he is unable to perform. 3. SAME-PERFORMANCE.

A lessor in a gas lease has no right to expect the lessee to perform the conditions therein on his part immediately, when, by the provisions of the instrument, he is permitted to delay performance for five years.

[Ed. Note.-For cases in point. see Cent. Dig. vol. 34. Mines and Minerals, §§ 205, 206.] 4. SAME AMBIGUITY.

A written instrument is not void for ambiguity when the contract of the parties can be clearly and certainly ascertained therefrom.

5. SAME-ROYALTIES.

Although obtaining royalty may be the essence of a gas and oil lease, the time when operations under the lease shall commence is a proper subject of agreement between the parties, and, in the absence of imposition, fraud, or mistake, the provisions of the contract should be upheld.

Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Mines and Minerals, § 205.] (Syllabus by the Court.)

Error from District Court, Montgomery County: Thos. J. Flannelly, Judge.

Action by A. D. Ringle and others against A. R. Quigg and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

On the 19th day of December, 1900, the plaintiff's in error were the owners of the lands in controversy, and occupied the same as a residence and homestead. On the date above mentioned they executed and delivered to the defendants, A. R. Quigg and others, a lease which reads: "This agreement, made and executed in duplicate this 19th day of December, A. D. 1900, between A. D. Ringle and Sarah Ringle, parties of the first part, and A. R. Quigg, O. L. Hayward, S. S. Harmon, and M. L. Stephens of Elk City, Kansas, parties of the second part, witnesseth: That the said parties of the first part. for the consideration of one dollar in hand paid, the receipt of which is hereby acknowledged. and other valuable considerations, hereinafter mentioned, do hereby lease, demise and let to the said party of the second part, their heirs or assigns for the term of twenty (20) years and as much longer as gas or oil may be found in paying quantities, from the date hereof, the following described real estate situated in the county of Montgomery and state of Kansas, to wit: The northwest quarter (N. W. 14) except one acre to school. of section 35, township 32 south, range 13 east of the 6th P. M.. containing 159 acres. With full and exclusive power and authority to the party of the second part or their heirs or assigns, to enter upon the above-described lands and drill, dig, or mine for gas, oil, or any other mineral or substance of commercial value, taking upon and removing from said land any machinery or appliances necessary to the prosecution of said work: to erect any necessary buildings, tanks, or tracks for the legitimate use of said work or the products thereof, and to remove or convey said products off said land by any reasonable methods, and the right from time to time to repair and replace the same, avoiding as far as may be practical, damage to growing crops or fences, but in case of such damage, to pay same as may he determined by appraisers. In consideration of the premises, the party of the second part agrees to pay as royalty to the parties of the first part upon each well of gas from which any product is taken, having any commercial value, the sum of five dollars per month

for each month while so taken. Royalties to be paid in cash on the 1st day of each month for the preceding month, payable at Eik City, Kansas. In case that oil or other products than gas are found the royalty shall be one-tenth of such product delivered at the surface near mouth of well or shaft. It is mutually agreed that the parties of the second part shall begin operations on this lease within five years (5 yrs.) from the delivery thereof, or in case of failure to do so, then and in that case it shall be at the option of party of the second part to lay pipes from mains or wells to within 50 feet of residence occupied by first party on above-described land, and furnish gas for stoves and for lights, and no other or additional expense shall be incurred under this lease by second party, and this lease shall be binding so long as gas shall be thus furnished, provided, that if wells are sunk, royalties shall be paid as above provided for, otherwise this lease shall be null and void, and no longer binding on either party. It is mutually agreed that if gas is discovered on said land that the parties of the first part shall have free of charge a sufficient quantity of gas for three stoves and three lights to be taken at the well so discovered and utilized, or at the nearest pipe line, and that the party of second part, or its assigns, shall have gas if so discovered without royalty for the further development or use of said products herein provided for the above-described land. In consideration of the premises the parties of the first part give and grant to the party of the second part, or its successors or assigns, the exclusive right to lay and maintain and remove pipe lines for gas and oil, over and across said land: said pipe lines to be laid at least 12 inches under the ground unless otherwise mutually agreed, and the surface of the ground left as near as practicable in its original condition. The party of the second part agrees to do no drilling within 200 feet of the building [house or barn] unless mutually agreed upon. Witness our hands and seal the day and year above written."

This lease was duly acknowledged on the same day and recorded in the office of the register of deeds March 12, 1903. The lessees afterwards assigned their interest in said lease to the defendant the Elk City Gas & Oil Company, and it executed and delivered to the defendant the R. J. Waddell Investment Company a written instrument, the legal nature and effect of which does not appear, except that it was given as security. This instrument was recorded in the office of the register of deeds, and constitutes a cloud upon the plaintiffs' title to the leased premises. July 13, 1903, the plaintiffs notified the lessees and their assigns that unless they canceled the lease suit would be brought to compel the cancellation 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, and 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 plaintiffs 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 plaintiffs 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 Montgomery county, Kansas, to-wit: The northwest quarter (4) 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 plaintiffs 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, including 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 void, 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 and 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 judg ment 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

ment of any sum whatsoever by said lessees or their assigns as compensation for or damages sustained by said plaintiffs, their heirs and assigns, in the event of the failure or refusal of said lessees and their assigns to develop said land, or to explore thereon for gas and oil.

"Second. Because at the time said plaintiffs made and delivered said instrument they had reason to and did believe that said lessees would cause operations to be commenced on said lands for the discovery of gas and oil soon after such delivery, and especially within reasonable time thereafter, notwithstanding the period of five years written therein, all which said lessees and their assigns at the time of the delivery and assignment of said lease, respectively, well knew; wherefore, said plaintiffs further allege that operations on said lands for the discovery of gas and oil within reasonable time after the delivery of said lease and the vigorous prosecution of such operations were of the essence of the contract, all which said lessees and their assigns at the times aforesaid well knew; which said reasonable time, said plaintiffs allege, had elapsed long prior to the service of the notice aforesaid on said defendants.

"Third. Because the terms of said lease are ambiguous and uncertain, and by reason thereof said plaintiffs cannot anticipate future performance and operation by said lessees or their assigns for the development of said land for the discovery of gas and oil, and therefore said plaintiffs, by reason of the premises, are and will be interrupted and hindered in the free enjoyment and disposition by them of their land, to the great and irreparable injury to themselves and their heirs.

"Fourth. Because, by the terms of said lease, said lessees and their assigns are under no obligation to pay any consideration whatever, other than a prospective royalty, dependent on so-called covenants, leaving it to the option of said lessees and their assigns to develop said lands for gas and oil. "Fifth. Because the terms of said instrument do not. by inference or otherwise, impose any obligation on said lessees and their assigns, or either of them, to begin operations on said land to explore for gas and oil, nor to continue such operations-such operations and the continuation thereof being the essence of the contract; nor do said

"Sixth. Because the terms of said lease do not contain any of the necessary covenants for the establishment of the elements of mutuality as to considerations and obligations imposed or intended to be imposed upon said parties, their heirs and assigns respectively: and the disparity between performances required of the parties respectively is so unreasonably great and unconscionable as to render it voidable.

"Seventh. Because it was the design of said lessees, as plaintiffs allege, to procure said lease and assign the same for the purposes of speculation only, and thereby realize profit without creating any liability against themselves, their heirs or assigns. by virtue of said instrument.

"Eighth. Because it was and is the design of said defendant the Elk City Gas & Oil Company, as plaintiffs allege, to procure the assignment of, and hold, said lease for the purposes of speculation only, and thereby realize profit without paying value therefor, and without creating any liability against said defendant company or the members thereof.

"And 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.

"Third 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.

"That since the assignment aforesaid of said instrument, the said defendant the Elk City Gas & Oil Company, in violation of law and of the terms of said instrument. and without any authority whatever, and without the knowledge or consent of plaintiffs, made and delivered to said defendant the R. J. Waddell Investment Company, an instrument in writing with the numbers of the land aforesaid and the numbers of other lands written therein, which said instrument in writing so made and delivered to said defendant the R. J. Waddell Investment Company was filed for record in the office of register of deeds within and for the said county of Montgomery, and thereafter duly recorded in Mortgage Record No. 56 at page 97 therein, and pages next following. And while said plaintiffs allege that they do not know the exact nature or full force of

said instrument, yet they allege that the same was made, delivered, and placed of record to secure the payment of a large sum of money, to wit, the sum of $12.000; and they also allege that said instrument creates a cloud on the plaintiff's title to said land, to the detriment and irreparable injury of said plaintiffs and their heirs.

"That said defendant the R. J. Waddell Investment Company claims an estate in said land by virtue of the instrument aforesaid, but said plaintiff's allege that said claim is null and void.

"Said plaintiffs therefore demand judgment against said defendants and each of them, their assigns, successors, and each of them, that the instrument last aforesaid and the instrument first aforesaid, to wit, said socalled lease, be decreed 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 in said land. And said plaintiffs demand judgment for costs."

Exhibit A is the lease given above.

R. II. Nichols, John P. T. Davis, and Whitcomb & Hamilton, for plaintiffs in error. S. II. Piper, for defendants in error.

GRAVES, J. (after stating the facts). This is an action to cancel a gas lease on the ground that it is void. The particular defects which vitiate the lease, as alleged in the petition, may be summarized as follows: (1) The lessees were unable when the lease was executed to perform the conditions thereof having no right to lay pipes to lessors' premises, which they might want to do, at the end of five years. (2) The lessors expected operations to be commenced before the expiration of the five-year limit. (3) The lease is ambiguous. (4, 5) While the receipt of royalty is of the essence of the contract, the lease imposes no obligation upon the lessees to begin or continue work. (6) The provisions of the lease lack mutuality. (7) The design of lessees and assigns is to hold the land for speculative purposes only. A general demurrer was filed to each of the several causes of action, which was sustained. The plaintiffs in error standing upon their petition, judgment was entered against them for costs. They bring the case here, alleging that the court erred in sustaining the demurrer. This is the sole question presented to this court.

We are unable to attach the importance to these alleged defects which has been given to them by the plaintiffs in error. We cannot agree with the contention that the lease is so inherently vicious as to be void. In support of their claim the plaintiffs in error cite the following cases: Pipe Line, etc., v. Teel (Tex. Civ. App.) 67 S. W. 545;

Ray v. Western Pa. Gas Co. (Pa.) 20 Atl. 1065, 12 L. R. A. 290, 21 Am. St. Rep. 922; Glasgow v. Chartiers Oil Co. (Pa.) 25 Atl. 232; Eclipse Oil Co. v. So. Pa. Oil Co. (W. Va.) 34 S. E. 923; Roberts v. Bettman (W. Va.) 30 S. E. 95; Federal Oil Co. v. West. Oil Co. (C. C.) 112 Fed. 373; Martel v. Jennings (La.) 38 South. 253. None of these cases are in point here. No question is decided by any of them which would if followed dispose of this case. The instruments involved in the cases cited are in substance quite similar to the lease in question. There is a margin of difference, however, between the facts involved in this case and those cited, sufficient to destroy their applicability to the question here presented. None of the cases mentioned were brought to cancel the instrument involved, because it was void, but the object in each case was to determine the rights of the parties thereunder. It will be necessary therefore to consider the validity of the lease in controversy, upon its own provisions and conditions. Taking the objections in their order, the first is that it was impossible for the lessee, when the lease was executed, to perform his option, by furnishing gas at the end of five years, to keep the lease alive. We do not understand that an option to do something five years in the future, is void merely because the person making the agreement is unable to perform the contract at The second objection is that the lessors expected operations would be commenced immediately, and not be delayed during the five-year limit, and have been disappointed in these expectations. We do not understand that a written instrument is void, merely because one of the parties expects the other to perform the conditions thereof on his part at once, when by the express stipulations of the agreement such performance may be delayed five years. The third objection is that the lease is ambiguous. While the terms of this instrument are not as clear and specific, as usual in such important agreements, yet it is not difficult to ascertain therefrom what the parties intended thereby, and when this can be done, written contracts should not be set aside as void, merely because to some degree ambiguous. The fourth and fifth objections are apparently regarded as the most important, and are chiefly relied upon. It is claimed that the receipt of royalty is the essence of the contract, and the stipulations therein do not require the lessees to begin or continue operations. The lessees are thereby able to defeat the real object of the lease, and for that reason the instrument is void, in the language of the brief of plaintiff in error: "It cannot be said that this lease was valid for a single minute, either before or after the assignment thereof." This objection is founded principally founded principally upon paragraph 4 of the lease.

It may be conceded that obtaining royalty