#### Christie *v.*Blakeley.

In an action of ejectment by a lessee against his lessor, it appeared that an oil lease was executed on part of a tract of land, with a covenant to commence operations within sixty days, or pay forfeit money at specified times, or work a forfeiture of the lease ; shortly afterwards another lease was executed on the balance of the land, with a covenant to commence operations within a certain time from the completion of a well on the tract covered by the first lease. Subsequently, but within the sixty days, the lessor took the lease and withheld it from the lessee, claiming that it had been procured fraudulently. The lessee failed to perform the covenants of the first lease. The court charged that, if the second lease was fraudulently procured, there could be no recovery, and that the act of the lessor in taking the lease did not release or excuse the lessee from the performance of his part of the contract, and his failure to do so, within the time fixed, was a forfeiture of the first lease, and that the second lease fell with it. *Held,*on judgment for defendant, that the proceedings should be affirmed.

Oct. 18, 1888.

Error, No. 204, Oct. T. 1888, to C. P. Butler Co., to review a judgment on a verdict for defendant in an action of ejectment, by H. W. Christie against Andrew Blakeley et al., at June T. 1887, No. 15. Green, J., absent.

The summons in ejectment claimed 135 acres of land. Abstracts of titles were filed by both parties. The defendants pleaded not guilty.

On the trial, title to Andrew Blakeley from the Commonwealth was admitted by both parties, and that he had a good title. Plaintiff offered in evidence a lease, dated April 7, 1885, from Blakeley to him, for 15 acres. Also a lease, dated April 9, 1885, in substance as follows : Blakeley, in consideration of the stipulations, rents and covenants on Christie’s part to be paid and kept, transferred, sold and set over to Christie, for the sole and only purpose of boring and *119mining coal, rock, or carbon oil and gas, etc., for the term of twenty years, all that certain tract of land, etc., containing one hundred acres, being the entire tract, except twenty acres, leased to J. W. Smith, of Pittsburgh, and fifteen acres leased to H. W. Christie, and dated April 7, 1885. In consideration of this sale, Christie agreed to pay to Blakeley $1000 for every well drilled on the farm in lieu of royalties. Further covenants appear by the charge of the court. This lease was not properly acknowledged. Blakeley subsequently leased to other parties, made defendants in this action.

The further facts appear in the charge of the court.

At the trial, before Hazen, P. J., when Andrew Blakeley, one of defendants, called on their behalf, was on the stand, the defendants made the following offer :

“ Now, when was there any wells struck near your farm, or the adjoining one, for instance?”

“ Defendants propose to show that, at the time this lease was taken, this was undeveloped property; no flattering indication of oil in it or on it; that, before this suit, wells had been put down on adjoining land, that were very large productive ones, and a number of them, and that one well was down on this land, a large producing well, before suit brought; to show, by this and other testimony, that, after the lease was given, and before this suit was brought, the situation of the parties, the value of the land had entirely changed, and that the value of the lease which was given, understood for the purpose of developement, had, by the developement of other persons, quadrupled, and far more, in value; and to be followed by the proofs that, during this time, he neither paid nor performed the covenants of his contract in any form ; and to show thereby that his purpose was simply to have a contract, insist on it if it turned out well, let it slip if it did not, and that it would be inequitable and against law to enforce it now if everything else were fair.”

Objected to by plaintiff upon the ground that “ it would tend, if anything, to show an estoppel, as against the plaintiff; and, with the evidence showing that defendant, Blakeley, had fraudulently taken the lease, an estoppel cannot be set up against his title.” Evidence admitted and exception. [1]

When F. W. Leideker, one of the defendants, was on the stand, he was asked this question: “ Q. At what cost have you drilled six wells on this lease ? ”

Objected to by plaintiff, that the cost had nothing to do with it, and was immaterial. Overruled and exception. “ *Ans.*About $4,000 a well.” [2]

When Mrs. H. W. Christie was on the stand, the following offer was made: “ Plaintiff’s counsel propose to prove by the witness on the stand, in rebuttal, that the terms agreed upon by this lease were $1,000 for each well to be drilled upon it; to contradict the testimony of Andrew Blakeley, that the terms were to be $1,000 a year for each well.”

*120“ Objected to by the defence as not rebutting. It was charged in the abstract of title and in the trial of the case here that the torn lease was fraudulent and did not embrace or specify the terms of the contract as agreed upon. Mr. Christie testified in chief fully upon the subject, stating that it was in conformity with their agreement and stating what the agreement was, and not only that, but details specifically and circumstantially the whole agreement, conversation and preliminaries before the contract was written, was subjected to a close examination in which he repeated substantially that the terms of the contract were strictly written in the agreement. Now, while it would have been competent to prove by this lady or any other witness, in support of her testimony in chief, we rebutted that by our witness, and this is not rebutting and therefore incompetent.”

The Court: “ It would have been clearly right to have introduced this witness in chief, but, at this stage of the case, it is certainly not admissible; therefore we sustain the objection.” Exception. [3]

The Court charged, inter alia, as follows:

“ Plaintiff avers that he has good title to this land; that he has the right of possession, and that now he seeks to unite his right of property and right of possession with actual possession of this land, described in the precipe and writ in this case, making a perfect title. Defendant, Blakeley, and others holding under him, are in possession. The question now is upon the title. This kind of action goes to the question of title. If plaintiff has satisfied you that he has a good right to recover the possession of this land, thereby making his title perfect, your verdict should be in his favor. It is obligatory upon him to recover, if at all, upon the strength of his own title, not upon the weakness or defect, if any may exist, in the title of defendants.

“ The parties start with good title in Andrew Blakeley. Plaintiff avers, and introduces in evidence, on the trial of this case, a lease, April 7, 1885, from defendant, Blakeley, to plaintiff, Christie, for about 15 acres of this land. He also introduces another lease, dated April 9, 1885, for defendant, Blakeley, to the plaintiff, Christie, for the balance of the land now claimed, making up the whole ground.

“. . . . There was a stipulation in the agreement of April 9,. that a lease to one Smith by Blakeley, that Blakeley was to attempt or make an effort to procure for Christie. It would seem that Blakeley made an effort but did not receive a transfer of this lease ; that the next day after he had executed and signed this paper, dated April 9, he went to Pittsburgh. The next day, it would seem, if we remember correctly, was Sunday. Probably Monday, the next business day intervening at all events, he came early in the morning to Butler to see the paper. Then he met plaintiff. Plaintiff, it seems, sent word to his brother, C. G. Christie, who procured the *121lease; — and here we will/emind you of part of the history that occurred at the recorder’s office the day the lease was signed; it was handed to one Dale to be placed, as alleged, in the safe, until, as claimed by Blakeley, both parties would be present, that the conditions which he alleged had not been inserted should be ascertained, to wit, the matter of the Smith lease and the matter in regard to his son’s rights upon the land, purported to be leased, and that he should have it examined, That, on this occasion, Mr. C. G. Christie procured the lease. You will remember what occured in the prothonotary’s office at that time, who were present, and what was said. That, subsequent to that, an agreement was made, probably on the 13th of April — you will remember the date, if we místate it — to meet in Mr. Scott’s office; what took place on the streets prior to that meeting that day; who the parties were that talked, and what they testified in regard to that when brought before you, sworn and examined in your hearing. You will bear in mind what is alleged to have taken place in Mr. Scott’s office; that the lease was in the hands of Mr. Scott; that he was reading it when Blakeley took it and went away with it. You will bear in mind what was said in regard to the part of the lease that was alleged to have been found upon the railroad, and the evidence in regard to its identity. The lease was produced in a mutilated form, and it is alleged that the piece that was found upon the Pittsburgh and Western Railroad is similar to that which had been taken from the paper. The paper, however, was admitted and is before you.”

“ One feature in this case that is for the court in order to give you light, and that is to interpret the written papers. The lease of April 7, 1885, seems to have been made in good faith. The covenants in it required that the lessee would do what? Just what I will read to you. Let it speak for itself: ‘ The said party of the first part is to fully use and enjoy the said premises for the purpose of tillage, except such part as shall be necessary for said mining purposes, and the right of way over and across said premises to the place or places of mining or excavating. The said party of’the second part further to have the privilege of using sufficient coal, water and gas, from premises therein leased, and to run the necessary engines for the transaction of said business. The said party of the first part covenants to grant to the said party of the second part the right to remove any machinery or fixtures placed on said premises by the party of the second part. The party of the second part covenants to commence operations for said mining purposes within sixty days from the execution of this lease, or to thereafter pay the party of the first part *$20*per month until work is commenced, or this lease to forfeit without liability or damage to the party of the second part. The second party agrees to pay for all timber destroyed by the party of the second part, also for all damages done to crops growing thereon.’

“ These covenants, you will see, gentlemen, bound the lessee, *122Christie, plaintiff in this case, to commence operations within sixty days from the date, to wit, April 7th, 1885, or, in default of commencing operations, thereafter to pay the party of the first part, Blakeley, $20 per month until work is commenced, or, in the event of neither commencing or pay as stipulated, this lease to forfeit without liability or damage to the party of the second part — that is, to Christie.

“ Now, he had his option, and we assume that this lease was made in good faith — we have no right to presume that the act of a party is from a bad motive. The law presumes it is from a good motive, and that prevails until the other is proven.

“ Let us take the second, dated April 9, 1885 : ‘The party of the second part covenants to commence operations for said mining purposes on this lease within sixty days from the time a well is completed on lease given second party April 7, 1885, by first party, and persevere with due diligence until finished. Said party of the second part agrees, as further consideration, to pay first party $100 for Smith lease, if it can be obtained, which lease is to be added to above described lease, on the same terms, $1000 for each well, as above. Second party to pay all damages to crops, timber or fences. Said first party to furnish timber for first well, if suitable one can be found on said farm. Said second party agrees not to drill within 20 rods of buildings without consent of first party. Said second party agrees to pay any advance on taxes. Said second party agrees, if he does not commence a second well within sixty days after the first well on this lease is tested, this lease to be null and void.’

“ You will see, gentlemen, that the time for commencing on this lease is fixed at sixty days from the time a well is completed on lease given April 7, 1885, in the lease I just read to you, and the second one in the time fixed as named, and, if not done, the lease to forfeit.

“ Now, on the basis as we stated, that the first lease we assume was taken in good faith, at that time there was nothing said about a second, if we have a clear recollection of it. It was an independent lease. The second lease was made dependent upon the carrying out in good faith by the lessee of the covenants of the lease of April 7, 1885. If any other construction could be placed upon this, then it would be to show unquestionably that if the lease of April 7th — the first lease — was taken with a bad motive, and then the other lease taken, and deliberately, on the part of the lessee, to abandon the first and hold the other, it could not, we think, be other than fraud. Hence, naming it in the second lease, and in the hand-writing of the lessee who knew that it was — himself stated so, if you believe him, and he is credible — then he was in duty bound to act in good faith on his part, and come into this court with clean hands, otherwise he could not ask the other party into court. [Then we say to you that the second lease depended upon the good faith in carrying out the covenants in the first lease] *123[4] and [if the first lease was allowed to go by' default, with it went the second.”] [5]

“ Blakeley avers, and this is a question of fact for you to pass upon, that, in this lease which he gave on the 9th of April, it was to be in accord with the terms and conditions of the Smith lease. The Smith lease was received in evidence and read in your hearing. The Smith lease is referred to in the lease of April 9th. Blakeley alleges that, in accord with the language there if he could get it, it was to be. made a part of this 9th of April. The language would seem to sustain it. He alleges further, and if you believe both plaintiff and defendant and one or two of the witnesses from the recorder’s office, corroborative of what Blakeley claims, there was to be a matter ascertained in regard to the rights of Blakeley’s son, who was cropping this leased land.

“ Blakeley alleges, though it is denied veqy earnestly on the other side, that the lease of April 9th was to be held in the safe and not moved without both parties being present, and that it was to be so held for the purpose of his having it examined by h.is attorney. Now this is a question of fact like the others. If that be true, or if it be true that the Smith lease, if obtained, was to be written in this agreement, or it be re-written, then it would seem that that, if found as a fact, is corroborative of Blakeley’s position. If not found as a fact, then it sustains' Christie’s position. Take it on the basis of a written instrument, as it stands, it would be necessary for Mr. Blakeley, in order to change that instrument, to satisfy you by the evidence of two witnesses — he is a competent witness and so is Christie — or, if not by two witnesses, then by one witness and such corroborative circumstances as would be equivalent. If he has satisfied you from the weight of the evidence in that way, then he would be entitled to prevail.”

[“Another question, and doubtless it would come with very great force in a matter pertaining to the oil business, to which this related, and that is, whether time is of the essence of the contract. How will you ascertain that? We say to you that, in this contract, time would, under all the circumstances, in our opinion, be of the essence of the contract. Now, to determine — is to find out from the exigencies of the case — the surroundings of the case. They must be considered, in order to find out whether time is of the essence of the contract or not.”] [6.]

[“ We think, gentlemen, that clearly there was a forfeiture, by the lessee, plaintiff in this case, of the lease for the 15 acres. If that lease had been kept in force by the payment of the money, as stipulated, which he had the option of doing, he could have continued, on paying that, indefinitely, and Mr. Blakeley would be at bay, unless you should find as a fact that the lease of the 9th of' April was a fraud upon Mr. Blakeley, and we do not say whether it was or was not, but we submit to you all the testimony on that point for you to pass upon that fact. If that lease is found to be *124fraudulent, then there could be no recovery upon it in any event. If it is found to be a fair transaction, and no fraud on the part of Christie perpetrated upon Blakeley, then that lease was a subsisting lease, a valid lease, and if Mr. Christie had kept alive the first lease, viz., that of April 7th, by paying the consideration he'had covenanted to pay, he might have postponed the date of commencing operations upon the lease of of April 9th just as long as he had a mind to, so that he did not get outside of the time, 20 years, or whatever time was then stipulated; but it was all in his own hands — he .could do or not — he could not be compelled. It was his election, made so by the parties in the contract of April 7th. That having been forfeited by the election of the lessee, we think it carried with it the other.”] [7]

The defendant presented the following points, which were affirmed :

“ 1. This action is in the nature of a bill in equity for specific performance.” [8]

*“2.*If .the jury find that the plaintiff did not take possession, nor pay nor tender the monthly instalments, nor begin operations thereon for oil before suit brought, he cannot succeed in this case.” [9]

“ 4. The testimony of the plaintiff himself, if believed, shows the lease was not complete, nor intended as a final contract, but something remained to be done; until that was done, the contract was not executed and could not be delivered.” [10]

“ 10. The plaintiff admitting that he had not performed any part of his covenants at any time, nor offered to do so, the act of Blakeley, in taking the lease, did not release nor excuse the plaintiff from performance of his part of the contract, and his failure to do so, within the time fixed, is a forfeiture of the lease by its own express language.” [11]

Verdict and judgment for defendants.

*The assignments of error*specified, 1, 2, 3, the rulings on the evidence, quoting the bills of exceptions, as given above; 4, 5,6, 7, the portions of the charge embraced in brackets,'quoting them; 8, 9, 10 and 11, the affirmance of defendant’s points, quoting them.

*T. C.*Campbell, with him *E. Mcjtmkin, W. D. Braden*and *S. F. Bowser,*for plaintiff in error.

As the case was taken away from the jury on the question of forfeiture, we may assume that, if they had had the opportunity, they would have found that the lease of April 9th was not obtained by fraud and was duly delivered.

The title of April 9th was legal and not equitable, and the court erred in treating the case as a bill for specific performance. Kemble Coal & Iron Co. *v.*Scott, 90 Pa. 332.

Christie made out a prima facie case and was entitled to recover, unless a forfeiture should be shown by defendants. The *125burden of proof was upon them. Whitton *v.*Whitton, 75 Am. Dec. 163; s. c. 38 N. H. 127; McKnight *v.*Kreutz, 51 Pa. 232.

Oct. 29, 1888.

Blakeley, by the fraudulent destruction of the lease of April 9th, estopped himself from invoking its aid to show title back in him by reason of the non-performance of conditions by Christie; by such destruction he lost the benefit of all covenants in his favor, and Christie is considered as having performed all things he had agreed to do. Bispham’s Eq., § 198; Whitton *v.*Whitton, supra; Lane *v.*Reynard, 2 S. & R. 65 ; Story’s Eq., §§ 182, 256; Townsend *v.*Townsend, 94 Am. Dec. 185 ; s. c. 4Coldwell, 70; Forrester *v.*Hannaway, 82 Pa. 218; Miles *v.*Lewis, 115 Pa. 580; Withers *v.*Atkinson, 1 Watts, 236; Wallace *v.*Harmstad, 44 Pa. 492 ; Bane *v.*Sutton, 3 Penny. 199. See, also, Brown *v.*Vandergrift, 80 Pa. 142.

During 60 days after April 7, Christie could have averted a forfeiture by commencing a well on the second tract; but, long before that time had elapsed, he was deprived of all chance of complying with his contract of April 9, by Blakeley’s act.. Surely he was not required, under the circumstances, to keep these covenants until he could assert his rights in court.

Instruction to the jury, as in point 4, that if they believe the testimony of certain witnesses named they should find a certain way, is error, if thereby the testimony of other witnesses is excluded. Ott *v.*Oyer’s Ex’r, 106 Pa. 6; Steel *v.*Tuttle, 15 S. & R. 210; Dayton *v.*Newman, 19 Pa. 194; Rigler *v.*Cloud, 14 Pa. 361.

*Charles McCandless*and *Col.*Thompson, of *Thompson & Son,*with them *Williams & Mitchell,*and *W. H. Lusk,*for defendant in error.

The verdict of the jury settled the question that the lease had been procured by fraud.

The construction of the lease was correctly made by the court. Shirley *v.*Shirley, 59 Pa. 267; Stouffer *v.*Coleman, 1 Yeates, 393; Dawson *v.*McGill, 4 Wharton, 230; Kenrick *v.*Smick, 7 W. & S. 41; Williams *v.*Bentley, 27 Pa. 301; Ogden *v.*Brown, 33 Pa. 249.

Per Curiam,

The verdict of the jury in this case, which was based on sufficient evidence, eliminates all other questions, and leaves nothing on which this court can pass.

The judgment is affirmed.