Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1890-06-25
VERY IMPORTANT.
AN OPINION BY JUDGE BRANNON OF THE
SUPREME BENCH
In the Case Of Gufey and Murphy '. Hukill
Which Will Interest All Oil Men, Lessons
and Operators.

In the Case Of Gnfey and Murphy '. Hukill
Which Will Interest All Oil Men, Lessons
and Operators.
An opinion was rendered by Judge Bran
non in the Supreme Court of Appeals, yes
terday. which is of vital Importance to
large number Of the citizens Of this State,
including both oil and gas operators, and
farmers whose lands are under lease, OF
who NAV contemplate the making of such
leases.
The case was that of Guffey & Murphy
Y Hukill. from MOnongalia county. In his
opinion Judge Brannon said;
This was an action of unlawful de
tainer i'm the Circuit Court of Monongalia
county. by Guffy and Murphy against
Hukiil. for possession of 80 acres OF land
for drilling for petroleum oil and gas, IN
which there was Judgment for plaintiff, to
which Judgment Hukill obtained this writ
of error. ,..
..The case was decided upon a demurrer
IN evidence. from which ii appeared 10 be q
contest between those claiming under TWO
conflicting leases made by Wise, the owner
for drilling for oil and gas. Wise made to
HAYS a lease of this 30 acres, dated June
"A lSS6 for 70 years, which on January
iO iSSq. was assigned 10 Hukill. Under
this lease Hul1ill defends. BY lease dated
.J1llv II. ISIS. Wise leased the 80 acres 70
Rein Calvert. for - years, and Calvert
ASSIGNED this lease 70 Ida G. and Winnie
Calvert. ON March Ii, 1859, and they as
signed IL 10 Guffcy and Murphy on May :
1850 Under this lease the plaintiffs claim
II is claimed by the plaintiffs that INC
hostile lease 10 Hays became forfeited
uuder provisions contained in it, and there
fore the later lease 10 Calvert cOnlers q
valid RIGHT. This HAYS lease contains TINS
clause: 'rhc parties OF the second par
covenant 10 commence operations FOR salc
nurnoses within nine months from
and after the execution OF TINS
Lease and to thereafter pay t.
the party of the first par
II a3I1 per month until work is commenced
the money TO be deposited in the hands o.
John Kennedy for each and every month
and a failure on the part OF said second par
ties to comply with either one or the othei
of the fore going conditions shall work M
absolute forfeiture of this lease.
"Havs' lease was recorded October 70
tSS6 before the execution of the Calvert
lease About MAY /, 1889, Hukill began
boring for oil under the Hays lease, and
continued the work until November, lSS9
when he obtained large quantities OF oil II
two wells.
..No rent was paid under the provisions
for the monthly payment OF SlS3t8 on tnt
Havs lease until about January !, 1871
when Hays paid ii TO Wise. Men Ken
nedv. in October. ISIS, offered To pay wise
~, IL a tntn.
hut received il afterwards from Hays. All
the rent due Wise under the Hays lease
was paid him. Hukin took possession UNI
der the HAYS lease. and began boring iof
oil with the knowledge and consent oil
Wise.
mo demand was ever made by Wise on
HAYS for the rent, except that ne called
once on Kennedy for it.
AN important question in TINS case Is
whether or not the lease TO Hays became
forfeited and of no further force by reason
of the failure to bore for oil or pay the
monthly sum of Sl.33lT in lieu thereof, and
the subsequent lease by Wise TO Calvert
of value: for n the Hays lease be still in
life. Hukill can defend ms
but if dead, il affords him no
defense. Such boring, or the monthly pay
ment of 81. 33 as its cOmmltOn, is maze ON
the Hays lease an express condition tor
with which its life IS 10
cease. But il is earnestly contcnded Tor
the appellant that such failure does not
ipso fdctO end the lease, but that demand
must have been made for the payment oil
said money as rent, and on the failure OF
payment, re-entry ON the premises by the
lessor Wise, under the principles oil com
mon law. Does this law apply TO
IL. 1,,-,l . 4 that faflurp OF the
lessee TO commence operations or pay
81 3d. per month in lieu Of so doing,
shall work an absolute forfeiture
of this lease bat contains no
provision for re-entry for such
omission. Where there is not only a
declaration that certain act OF omission
shall work a forfeiture, but also that
the landlord may reenter, II may plain
" be said that the landlord may or may not
choose 10 enforce the forfeiture by re-entry,
and if he elects 10 So enforce II, he must
make such re-entry, as that Is the act
pointed out by the express terms OF the
lease. as the mode Of the enforcement OF
the forfeiture: whereas, when there Is no
provision for re-entry, il Is not required.
is. then, this common law method oil en-
forcing a forfeiture by demand and re-
entry applicable 10 a lease, which simply
provides forfeiture for breach OF
its covenants, but contains no
clause of re-entry. Or rather, IN
such case, are demand and re-entry the
only mode of declaring the Will oil the lessor
TO enforce the forfeituref
Aftera citation to Kent. Commentaries,
Vol. 1, page rs; Iowa, Deg. $3S; /
Minors Inst, 229; Taylor's Land. and Ten.
Sec. 4Q2, etc. The Judge says:
thai
the original rule. that breach OF the cOndi-
ton in a lease for years per sc forfeits II,
prevails in Pennsylvania, and there have
been contrariaut decisions in New York,
and cites decisions in Il few other States
that there must be some declaration by the
lessor of his election to forfeit am not
aware of any decision in Virginia TO tell
US whether the original rule as above
stated prevails But Jet us take
the law 10 be as Taylor states
il. II is only partial modi-
fcation. or, rs he states IL, an abatement OF
the original rule. He says that the effect
of these later decisions is To make the lease
void at the option of the lessor only, IN ca
ses where the condition is intended for his
benefit; that is, that the lessor may waive
the proposition. and if he chose not to de
clare the lease forfeited, it does not lie In
the mouth of the tenant who has broken
his covenant to set up the breach of the
condition as destroying the lease, but he re-
mains liable for rent He further says that
until the lease be avoided by the landlord,
il continues good, though the lessee IS es-
topped to set it up against the lessor. Inc
lessee is in the wrong, and he cannot set up
the lease Us continuing against the landlord,
who insists on its forfeiture. Under the
law as il had stood, so dead was
the lease upon the mere breach of the con-
dition that the landlord could not recognize
il as existing or revive it by new Lease,
but il was dead rs to both him and his ten
ant: but under the modification of the rule
wrought by the later decisions, the lease
continued good until the landlord avoided
il. but so far as the tenants rights are
il was VOID, and he could not
set it up against the landlord. The cause
of forfeiture only renders the lease VOID as
TO the lessee. and il may be affirmed by the
lessor and the rights and obligations OF
both parties win continue IN that case.
CLARK V. Jones, l. DEMO, SIG. Thus, no re-
entry is necessary in case of lease for
wears which contains clause OF forfeiture
for breach of covenant, but no clause OF re-
entry.
.There is in this case another reason why
no one re-entry was necessary. The lease
let TO HAYS only the right to bore for OIL,
and reserved the use of the land TO Wise fof
tillaee. and he was in actual possession.
No man can enter upon himself. y man
need not make re-entry where he IS III