The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1909-10-09

would be a small matter when COM
pared to the injury to the great mass
of land titles in litigation and depend
ing on this same heretofore irrefutable
and invincible support.
Mr.. Dana called attention to the
various cases in different states where
notary's certificate has been taken and
never set aside except in cases where
fraud has been proved in a clear and
convincing manner.
AS to the contention that the de-
scription in the lease had been
changed, Mr.. Dana argued that that
had been done only to make the in
strument conform to the intention of
the parties making the contract and
cited the decision in a Kansas case
where the supreme court had declared
that only such alteration of contract
as would materially change the inten-
ton of the contracting parties would
invalidate that contract. In the trial
of this case Fletcher himself admit
ted that he did not own any land in
section twenty-four and therefore
could not have intended to convey
property in any other section except
No. 20, to which the lease had been
changed
Mr.. Dana asked for a reversal on
the strength of the fact that the judge
in the lower court had instructed the
jury in regard to law points in such
fashion that the burden of proof
should fall upon the plaintiffs when in
reality it was the defendants that had
made the allegations of fraud in con-
testing the validity of the plaintiffs
lease. (Plaintiff had been forced to
bring suit in order to enjoin A J. Yoke
from drilling on this land) The case
was brought under the rule of equity.
The contention is that the notary
public's certificate was prima facie
evidence that must be first broken
down by the defendant, so the bur
den of proof Law on the other side and
the defendants should have been
estopped.
The owners of the lease had accent
ed gas from the company in compli-
ance with the terms of the lease for
five years before contesting the lease,
and Mr.. Dana laid especial stress on
that point in his oral argument and
declared that the acceptance of gas by
the owners of the land in lease from
the gas company claiming the lease
was alone sufficient consideration to
uphold the lease should a contest
arise. Mr.. Dana'S Interpretation of
this point was that it is a principle
that where one party has right to
reject the benefits offered by the other
party to the lease under its terms and
does not do so tht he has no right to
at a later date.
Mr.. Dana closed his argument as
follows: eff Mrs. Fletcher did not
like this gas lease and its terms when
did she learn to dislike it? Certainly
not when she affixed her signature
thereto in the presence of a notary
public. Certainly not when the gas
to which she leased it dug |
bitches in her land and laid pipes |
therein clear to her house. Certainly |
not when she connected her stoves |
with these gas pipes and turned the |
valves through which came gas. Ger
-ainly not when she cooked for her
husband most appetizing meals on the |
Kitchen range and warmed his easy
chair and slippers for him by the front |
-oom CRATE.
when did she learn to dislike this
ease? Why it was about the time that |
L valuable gas we'll was drilled on the
and by the company to which she
had leased it and when A. J. Yoke
,ame along and offered a greater in
1ucement for lease to this same land
han which she had received in the
irst place.
1.-THE certificate and seal of a no.
airy whose lips are now sealed for
'ver by death is what we have to of
er in rebuttal to this change of heart
f the witness who made one lease
nd now seeks to make another and
more profitable one"