Opinion
No. 4228.
January 17, 1933. Rehearing Denied January 26, 1933.
Appeal from District Court, Rusk County; R. T. Brown, Judge.
Action by Margaret Coolidge Clark and husband against the Humble Oil Refining Company and another. From a judgment for defendants, plaintiffs appeal.
Reversed and rendered.
The suit was by Mrs. Clark, nee Margaret Coolidge, joined by her husband, against the Humble Oil Refining Company and the Gulf Production Company. The object of the suit was to procure the cancellation of a certain oil and gas lease on a 440-acre tract of land, the conclusion of the instrument mentioning the lease to be of the date of April 25, 1928, but presented for signing on September 12, 1930, so far as the lease pertains to and affects the appellants' one-sixth undivided interest in the 440 acres. The allegations, as grounds for cancellation, are in substance that: (1) The lease was procured through fraudulent representations consisting of presenting a prepared instrument on September 12, 1930, for execution as of date of April 25, 1928, and stating that it was to be signed by her, and sister and mother, for the purpose of correcting errors in the field notes of the land and irregularities in the guardianship proceedings as contained in a prior lease of April 25, 1928, and as occurred in the original guardianship proceedings; (2) there was no agreement to pay any consideration for the lease in suit and that no consideration whatever was paid therefor and that it was void for want of any price or compensation therefor; (3) that the lease terminated by its terms for failure to pay the rental for 1931, due on April 25, 1931, for deferring drilling operations.
The appellees answered with general denial and specially pleaded that: (1) The instrument presented on September 12, 1930, for re-execution as of April 25, 1928, was freely and knowingly executed by the plaintiff and the other lessors for the purpose of ratifying and confirming and to make effective and to be cumulative of the prior leases of 1928 executed by Mrs. Price individually and as community survivor and as guardian, respectively; (2) that the plaintiff subsequently ratified and was estopped from asserting invalidity of the prior leases of the entire land through the execution and delivery of certain named deeds conveying a one-eighth undivided interest in the oil and gas under the land, and which deeds contained a recital as to the lease executed in favor of the Humble Oil Refining Company; (3) estoppel by conduct; (4) timely payment of the rental in substantial compliance with the terms of the lease, stating details.
At the conclusion of the evidence the court peremptorily instructed the jury to return a verdict in favor of the defendants, and a judgment was accordingly entered in keeping with the instructed verdict to the jury.
The following appear in the record as facts, without dispute: On December 27, 1915, W. H. Coolidge died, leaving surviving him his wife, Mrs. Lou Emma Coolidge, and three children under twenty-one years of age, Nannie, Margaret, and William. Nannie Coolidge married L. H. Moore. W. H. Coolidge owned 440 acres of land in Rusk county which was the community property of himself and wife. Mrs. Coolidge after the death of her husband qualified under the statute as community administratrix. Subsequent to qualifying as community administratrix and before April, 1928, she and W. L. Price were married. On April 25, 1928, an oil and gas lease was executed and delivered to J. M. Wood upon the 440 acres of land with rights to seven-eighths of the oil produced. The lease was signed by Mrs. Price, formerly Coolidge, and her husband, and purported to be a lease by Mrs. W. L. Price, formerly Coolidge, "individually and as community survivor of the estate of W. J. Coolidge, deceased," of the 440 acres, specially describing it by metes and bounds, and with the right to seven-eighths of all the oil produced. This lease was duly acknowledged and registered in the county clerk's office. Mrs. Price collected the full $440 covering the leasehold interest in the land. On May 4, 1928, J. M. Wood assigned the lease to the Humble Oil Refining Company, and it was registered on September 5, 1928. The Gulf Production Company acquired an undivided one-third interest in the lease.
It seems that subsequent to the lease on April 25, 1928, Mrs. Price was advised that she could not legally convey the minors' interest in the land as community administratrix, having remarried after being appointed community administratrix. This lease was treated by all the parties as legally void as to the interest of the minors. Mrs. Price then initiated proceedings for appointment as guardian of the estate of her two younger minor children, and she was appointed the guardian. Miss Nannie was married at the time. Thereupon an oil and gas lease was executed and delivered to J. M. Wood upon the entire 440 acres of land, specially describing it by metes and bounds. This lease was signed: "Mrs. W. L. Price, Mrs. L. H. Moore (née Nannie Coolidge) L. H. Moore, Mrs. W. L. Price, Guardian of William and Margaret Coolidge." This lease at both the beginning and the conclusion mentions the execution and date of the lease to be the date theretofore given of "April 25, 1928," being the date of the original lease of the community administratrix, although "August 20, 1928," appears as the date of the acknowledgment before the notary. This lease was then assigned to the Humble Oil Refining Company. It appears that this guardian's lease was also treated and regarded by all the parties to the suit as being absolutely legally void as to the interests of the two minors, Margaret and William Coolidge, because of failure of compliance with the statutory regulations of guardianship proceedings as relates to the leasing of the minors' land by the guardian for the production of oil and gas.
There was no particular oil activity in the vicinity of the land in 1928 and 1929. The first oil well was begun on the land on June 30, 1931, and completed July 14, 1931. Margaret Coolidge became twenty-one years old on June 17, 1930.
It appears that in 1930 the Humble Oil Refining Company began to clear up its leasehold titles to lands. The field notes in the 1928 leases were not found satisfactory and the surveyor was directed to prepare corrected field notes of the particular 440 acres of land in suit. Accordingly, two leases entirely in the terms and provisions of the previous lease in 1928 were prepared by the Humble Oil Refining Company and presented on September 12, 1930, for re-execution as leases on the date of the leases theretofore given in the community administration and guardianship covering the 440 acres of land. One of the leases was to be signed by Mrs. Price as guardian of the minor William Coolidge, and the other lease was to be signed, as was done, by "Mrs. Nannie Moore (nee Coolidge) and her husband, L. H. Moore, Mrs. Lou Emma Price (formerly Coolidge) and Margaret Coolidge." This lease on its face at the beginning and conclusion mentions the execution and date as "April 25, 1928," and was signed by all the parties mentioned. The lease was not redated, but bore the same date the original prior leases had been made to bear, and was made to conform entirely to the provisions and terms of the previous leases executed in 1928. The only change was in the correction of certain field notes. There was no provision creating any new obligation or imposing any new duty. It was intended to operate solely upon antecedent events.
Margaret Coolidge claimed that the subsequent instrument presented to her on September 12, 1930, was procured by false representations. Her evidence, as material to state, in that respect is here briefly set forth. She testified to the effect that on September 12, 1930, the authorized representative of the Humble Oil Refining Company brought to the home of her mother, where appellant at the time was residing, an Instrument of several pages prepared for signing by her mother and her sister and herself. The representative requested her to sign and acknowledge the instrument, stating "that it was a correction instrument. An instrument to correct the field notes and guardianship proceedings." That "they did not tell me it was an oil and gas lease covering my one-sixth interest in the land. They told me it was an instrument to correct the field notes and the guardianship proceedings." That she complied with the request of the representative and signed the instrument; that she did not read the instrument because she relied upon the statement of the representative that it was merely in correction of the errors of a previous instrument; and that in signing the instrument she believed that she was only co-operating with the representative in correcting some minor defects or errors in the original guardianship proceedings and guardianship laws, and would not in any way prejudice her future rights in the property. That she did not know at the time she signed this lease in evidence that the guardian's lease which her mother had executed as her guardian had in point of fact expired and terminated; that she understood that the guardian's lease would last for ten years; that she was not familiar with oil and gas leases or the law pertaining thereto and was wholly inexperienced in matters of business and had never transacted any character of business for herself. That the representations made deceived her in signing and acknowledging the instrument. The evidence on the part of the mother of appellant is to the effect that the representative of the Humble Oil Refining Company came to her home with the prepared instrument, and accompanied by a notary public, and read the lease to her and stated "that it was only a correction paper of the former guardianship lease, and there was irregularity in that lease and that the metes and bounds in regard to the field notes and callings had not been properly followed." That "Margaret was there in the room when they made that representation, and she signed the lease, but did not know at the time that the guardianship lease had terminated." The evidence on the part of the appellee is to the effect that no coercion was used and no facts were concealed from appellant; that appellant had ample opportunity to read the instrument, and was not prevented from reading it, and was not in any way induced by the representative to sign without reading it; that there was no misrepresentation of any fact, and no fraud or overreaching; that appellant relied on the advice of her mother, who read and understood the instrument. That the purpose of the instrument "was to be a ratification or a correction lease, correcting the field notes of the former lease which Mrs. Price executed covering Margaret's interest."
It was shown without dispute that the appellee did not pay to appellant any consideration or agree to pay her any price or compensation for the execution and signing of the new lease presented on September 12, 1930. In April, 1929, and in April, 1930, the Humble Oil Refining Company paid the annual rentals called for in the guardianship lease, paying one-half to Mrs. Price and one-sixth to Mrs. Moore (née Coolidge) and two-sixths to Mrs. Price as guardian of Margaret and William Coolidge, minors.
It was shown that on June 9, 1931, Mrs. Price and Mrs. Moore and her husband, and Margaret Coolidge executed to Salt Mount Oil Corporation a mineral deed conveying an undivided one-eighth interest in the oil, gas, and other minerals under the land in controversy, for the consideration of $11,125. Also, on April 6, 1931, the same parties executed and delivered to J. T. Perryman, Jr., a mineral deed conveying an undivided one-eighth interest in the oil, gas, and other minerals under the land for the sum of $22,000. The two conveyances contained recitations hereinafter stated.
The lease as presented on September 12, 1930, for signing expressly stipulated, as the prior leases had done, that if operations for drilling are not commenced "on or before one year from this date" (meaning the date the lease bore) "the lease shall then terminate as to both parties" unless "on or before such anniversary date" the lessee "shall pay or tender to the credit of the lessors in the First State Bank of Overton, Texas," the sum of $440, which would defer the commencement of drilling, operations for the period of twelve months. It appears that the Humble Oil Refining Company paid the rentals over to the First State Bank of Overton for deposit to the credit of the parties named. One check was in the sum of $220 payable to Mrs. W. L. Price and W. L. Price in their individual capacity, and one for the sum of $220 payable to "Mrs. W. L. Price as guardian of William and Margaret Coolidge, minors, and L. H. Moore and Mrs. L. H. Moore." The checks bore date of March 10, 1931. The depository bank made deposit of the money as directed to be done. The money was never credited to Margaret Coolidge and the bank was never directed to tender or credit it to her and there was no offer of tender to her by the bank or oil company or the mother. Up to the time of the trial Margaret Coolidge had not received nor been tendered any part of the money which was deposited in the bank as above stated. The money was still in the bank to the credit of Mrs. Price as guardian. The president of the Overton bank testified that had the personal check of Margaret Coolidge been drawn on the account or deposit it would not have been recognized or paid by the bank.
The appellant instituted the suit as soon as she learned in June, 1931, that in point of fact her guardian's lease previously terminated in June, 1930. A producing well was brought in on the land under the lease on July 14, 1931. Oil was discovered under the land in paying quantities.
McEntire, James Clower, of Henderson, for appellants.
J. Q. Weatherly, R. E. Seagler, and John E. Green, Jr., all of Houston, for appellees.
The pertinent point for determination is that of whether or not the peremptory instruction to the jury was warranted, directing a verdict in favor of the defendants. The appellant insists that the verdict should have been directed in her favor, or, if not, the evidence adduced presented an issue of fact, which, if determined by the jury in her favor, would entitle her to recover. The appellees contend otherwise that the court did not err in giving a peremptory instruction in favor of them, for the evidence conclusively established their right to the same. It is believed that it may not be held that there was error in taking the case away from the jury, for in the state of facts proven there was no issue of fact arising to be submitted to the determination of the jury. The error was, as concluded, in instructing the verdict in favor of the defendants instead of the plaintiff for the facts proved at the trial to exist established the right of the plaintiff to recover her interest in the land. The instruction should have directed the verdict in favor of the plaintiff Margaret Coolidge because: (1) The several purported leases of her interest in the land through the community administration and the guardianship proceedings were legally void in the first instance, and she was not prevented from enforcing her rights by subsequent confirmation nor even by estoppel through writings or personal conduct; and (2) assuming a valid and legal confirmation of the guardian's lease by Margaret Coolidge, still such lease had, as conclusively proven, expired by its terms for failure of payment of rental at or before the end of the period designated in the lease.
The legal consequences of the facts, in support of the ruling above made, are here given and set forth at length. The attempted leases in 1928, both through the community administration and guardianship proceedings, as to the undivided interest in the land of Margaret Coolidge, were treated by the parties in the trial of the case, not as voidable, but as legally absolutely void in the first instance. This is a vital fact of the case, for if Margaret Coolidge may in any wise be deprived of her right in the land, it must rest in her acts and conduct or estoppel after she became twenty-one years old. The evidence in behalf of the appellant is to the effect that she was induced to execute the instrument tendered and presented on September 12, 1930, and about which the controversy in this case arises, upon the representation of the appellee's agent that it was for the purpose only of rectifying mistakes in the purported guardian's lease bearing the date on its face of April 25, 1928, in description of the land, and in the legal steps taken in making the lease by the guardian. That she executed the instrument purely in the purpose and intention of confirming such infirmities of her guardian's lease. That at the time she was three months past twenty-one years old and had no knowledge that the guardianship over her was brought to a close by reason of her majority. The testimony of the agent of the appellee goes to conclusively show that he likewise intended the instrument so presented on September 12, 1930, to be only a confirmatory lease of the infirmities of the prior leases of 1928 made by the administrator and guardian. He testified that his purpose in preparing and presenting and having appellant execute the particular instrument was to have it be "a ratification or correction lease correcting the field notes of the former lease which Mrs. Price executed (as guardian) covering Margaret's interest." In the circumstances stated it is believed that the contention of appellee should be upheld that neither fraudulent representation nor misrepresentation can be deemed as arising as an issue of fact, as being an imposition or deceit on appellant. It is clear that the appellant and the agent of appellee each acted in the same common purpose of having a confirmatory lease only executed, and that the instrument to be executed was intended to be in the nature and to operate only as "an instrument to correct the field notes and guardianship proceedings." The appellant was in no wise misled or deceived in point of fact in that respect, and the agent of appellee never in point of fact acted with the purpose of deception. Under the conceded rule, in order to say that fraud is proved, it must appear that false representation or misrepresentation was made.
Misrepresentation being absent, as we conclude, in obtaining the execution of the instrument presented on September 12, 1930, the vital question for decision is: What legal leasehold rights or estate can the appellee be regarded as having acquired in the land as against appellant by virtue of such instrument? The particular instrument reads:
"Oil, Gas and Mineral Lease.
"This agreement made this 25th day of April, 1928, between L. H. Moore and wife, Mrs. L. H. Moore, and Margaret Coolidge, a feme sole, and Mrs. Lou Emma Price, lessor (whether one or more) and Humble Oil and Refining Company, lessee, witnesseth:
"Lessor in consideration of $10.00 in hand paid, of the royalties herein provided, and of the agreement of the lessee herein contained, hereby grants, leases, and lets exclusively unto the lessee for the purpose of investigating, exploring, prospecting, drilling and mining for and producing oil, gas, and all other minerals, laying pipe lines, building tanks, power stations, telephone lines land other structures thereon to produce, save, take care of, treat, transport, and own said products, and housing its employees, the following described land in Rusk County, Texas, to-wit: (Here follows description of the land). It is the intention of the lessor (here follows the provisions and terms of the previously executed leases in April, 1928). In witness whereof this instrument is executed on the date first above written." (Here follows the signatures of the lessors named.)
The language of the new instrument with its special recitals shows the intention of the parties to be, not to create any new duty or obligation or quitclaim any present interest or estate in the land, but only to execute an instrument made to effect or replace a transaction occurring at a time already long past — on the "25th day of April, 1928." There are no words in the instrument which by their own force would operate to create a new leasehold interest or estate presently as well as in the future. By its terms its execution was made to wholly relate back and be retroactive. The new instrument begins with the express statement of, "This agreement (of lease) made this 25th day of April, 1923," and at the conclusion expressly mentions the execution and date of the instrument by reference to the date theretofore given, namely: "In witness whereof this instrument is executed on the date first above written." It conforms entirely to the terms and provisions of the leases which had been previously executed through the community administration and the guardianship proceedings bearing date of "April 25, 1928," except in respect to the correction of certain field notes of the land as therein described. The language of the instrument is plain and unambiguous. If the true purpose of its execution was to be a present conveyance as of September 12, 1930, why date it more than two years before? It is thought the new instrument would properly be construed as intended by the parties to relate to a leasehold interest which had been created previously and to operate merely as confirmatory in character of infirmity of description of the land, and not as creating a new or present leasehold right or estate in the land. In this legal situation the new instrument could not be held operative as a valid and legal confirmation and ratification of the leases previously made, so far as relates to and concerns Margaret Coolidge. Margaret Coolidge, in view of the circumstances having special relation to her, must be regarded as standing independently of both her mother, Mrs. Price, and her sister, Mrs. Moore. In executing the previous leases as concerns their individual interests in the land, Mrs. Price and Mrs. Moore were doing so as adults and they were acting wholly independent of any exercise of power on the part of the probate court. Their previous leases were not as to them legally void, and it was allowable to them to render effectual by confirmation a defective, even voidable, deed or lease and to antedate and relate back to the original lease. Margaret Coolidge, though, at the time of the previous leases in evidence was a minor, and such purported leases as to her interest in the land was not made independent of any exercise of power on the part of the probate court or of any statutory community administration. The original leases were made in 1928, and through community administration and guardianship, respectively, and they were treated and regarded in the trial of the case, not as voidable, but as legally absolutely void instruments in the first instance, Such leases must be treated on this appeal as absolutely void in the first instance. Therefore, as a legal consequence at the time of tendering this new instrument on September 12, 1930, for execution, the appellee oil company had no legal leasehold interest or estate whatever in the land so far as concerns the interest therein of Margaret Coolidge. The new instrument having entirely a retroactive operation, the execution of it by Margaret Coolidge could not be held effectual and binding upon her as her confirmation and ratification of the original void leases of her interest through community administration and guardianship. The act in legal effect would be simply a continuation of the former leases as an act of guardianship and administration, and not a distinct action with an operative effect of its own presently and apart from the original previous leases. In general, contracts which are void from illegality because contrary to or opposed to statute cannot be confirmed and ratified, because the confirmation and ratification itself would be opposed to the statute.
It is the established principle that confirmation may make good a voidable or defeasible estate, but cannot operate upon or aid an estate which is void in law. 1 Devlin on Real Estate (3d Ed.) § 18, p. 30; 14 Tex.Jur. § 23, p. 776; Breitling v. Chester, 88 Tex. 586, 32 S.W. 527, 529; Montgomery v. Hornberger, 16 Tex. Civ. App. 28, 40 S.W. 628, 629; 1 Warvelle on Vendors, § 338, p. 402. As stated in the Chester Case, supra: "It would seem that, the deed as originally delivered being void, it could be re-executed but not ratified so as to give it a retroactive effect." As stated in the Montgomery Case above: "It may be true, as contended by appellants, that the deed of 1845 was void because it was not acknowledged by Mrs. Sawyer. It is also true that, being a nullity, it could not be confirmed by the subsequent deed, so as to have any validity of its own. The attempt to confirm it could not change the fact that the title had not previously passed out of Mrs. Sawyer, or, retroactively, impart to the nullity an efficacy which it had not before possessed. But at the date of the second instrument Mrs. Sawyer was still the owner of the land and had capacity to convey it by complying with the law. An attempt to confirm a void deed * * * may fail to effect that purpose, but may still operate as a new grant." In the case of Jackson v. Tonahill, 49 Tex. Civ. App. 169, 108 S.W. 178, the original deed had not been acknowledged, and a quitclaim deed was signed, acknowledged, and delivered by the grantors, Mr. and Mrs. Hooker. The effect of the subsequent quitclaim deed was that of the re-execution of a deed and which presently created an estate in confirmation and ratification of the estate previously intended to be passed. The difference, as may be seen, is that in the present case the instrument as signed by Margaret Coolidge was entirely retroactive, and did not of itself look to nor relate to any new or further estate and did not in any wise change the fact that the estate in the land of Margaret Coolidge, a minor, had never legally passed out of her in 1928 by the leases attempted to be made. The rights of appellant to her interest in the land remained vested in her the same after the execution of that instrument as they were before. If the new instrument tendered on September 12, 1930, for signing had been a quitclaim deed or in the nature or effect of one, the situation here would be different and the consideration paid the guardian would have been sufficient, and a new or different consideration would not have been necessary nor required.
The appellee, however, contends that the previously executed leases purport to cover the entire land and the interest of the lessors therein, and the subsequently executed royalty deeds to J. T. Perryman, Jr., and the Salt Mount Oil Corporation convey a portion of the royalty subject to the appellees' lease, and therefore the doctrine is made applicable of ratification or acquiescence by tenants in common of the acts of each other, and Margaret Coolidge would be estopped from denying the effect thereof. On April 6, 1931, a deed was executed by the mother and the sister and Margaret Coolidge conveying to J. T. Perryman, Jr., "an undivided 1/8 interest in the oil, gas and other minerals in and under and that may be produced from the following described land" (here follows description by metes and bounds of the land involved in suit). The deed recites:
"Said land being now under an oil and gas lease executed in favor of the Humble Oil and Refining Company, it is understood and agreed that this sale is made subject to the terms of the said lease, but covers and includes 1/8 of all the oil royalty and gas rental demanded to be paid under the terms of the said lease, insofar as it covers the above described property.
"It is understood and agreed that 1/8 of the money rentals which may be paid to extend the term within which a well may be begun under the terms of said lease is to be paid to the said grantee, and in event that the above described lease for any reason be comes cancelled or forfeited, then and in that event, an undivided 1/8 of the lease interest and all future rentals on said land for oil, gas and other mineral privileges shall be owned by the said grantee, he owning 1/8 of all oil, gas and other minerals in and under said lands together with 1/8 interest in all future rents."
On June 6, 1931, the same parties executed and delivered a like royalty deed to the Salt Mount Oil Corporation conveying an undivided one-eighth interest in the oil, gas, and other minerals in and under and that may be produced from the tract of land described. The deed contains the recitation as follows: "It is the intention of the parties to this mineral deed to cover all the land now covered by oil and gas leases held by the Humble Oil and Refining Company et al. with reference especially to that certain oil and gas lease executed by Mrs. W. L. Price, Gdn., to Humble Oil and Refining Company of date September 12, 1930, and recorded in Vol. 186, p. 25, Deed Records of Rusk County, Texas, reference to which is here made for more complete description." then follows the same recitations as above copied from the Perryman deed. The lease referred to as executed by Mrs. W. L. Price, guardian, was a lease as to the interest of the minor William Coolidge.
The recital was true that the land was under a gas and oil lease executed in favor of the Humble Oil Refining Company so far as pertains to the separate interest in the land of each Mrs. Price and her married daughter, Mrs. Moore, and the minor, William Coolidge. It would have special application to them and be an express recognition of the lease previously executed by them as to their individual interests in the land as existing and valid as to both of them. The lease referred to could truly exist as to some of the parties and wholly fail in legal validity as to the other party. As to Margaret Coolidge the reference to the lease of appellee would not have special application or application at all, and would amount merely to an incidental statement of a fact and not of adoption or acquiescence of the lease as covering her interest in the land. The oil company would be chargeable with notice of the interest of Margaret Coolidge by the leases to which it must look for its interest and estate in the land. The oil company would know that the attempted lease in April, 1928, by Mrs. Price as community administratrix was not valid as to Margaret Coolidge's interest. The oil company would know that the purported lease by Mrs. Price as guardian was not valid as to Margaret Coolidge. The authority of Mrs. Price to act and bind Margaret Coolidge, a minor at the time, in the transaction did not legally exist. Each lease on its face and by its terms reveals the intention to lease and pass no more than the title or distributive share and estate in the land of the lessors therein named, and not a share and estate that they or either of them did not hold or claim. Although purporting to have the lease cover the whole field notes of the tract, yet each tenant executing the lease in legal effect was letting her own undivided share and portion therein. Article 1290, R.S. In the execution of the lease Mrs. Moore merely joined with her mother, Mrs. Price, who was acting for herself "individually" and who was assuming to act for the minors respectively "as community survivor" and "guardian." Such character of execution and transfer of estate in the land would affirmatively show that Mrs. Moore and Mrs. Price were not attempting to pass all interest and estate in the land as if they were individually the sole owner of the same. They clearly were not undertaking to represent themselves as the sole owners of the land. Each of the first two leases contains the clause: "If the lessor owns an interest in said land less than the entire fee simple then the royalties and rentals to be paid the lessor shall be reduced proportionately." The purported lease to the Humble Oil Company presented for execution on September 12, 1930, and antedated to be made on "April 25, 1928," and which instrument was legally valid only as to Mrs. Moore and her husband, contains the clause: "It is the intention of the lessors and we do hereby lease all the land we own in the above and adjoining Surveys whether the same was acquired by purchase, inheritance, or limitation or otherwise, it being the intention to include all land owned or claimed by the lessors in said Survey or Surveys." The language "all the land we own" clearly indicates the interest and estate in the land which the lessors named intended to pass and confer in the leasehold estate or interest. In view of the evident situation shown, can it be held that the recital in the mineral deeds is sufficient and effective to predicate estoppel against Margaret Coolidge by ratification or acquiescence from asserting her interest or estate in the land? It is believed the doctrine in view sought to be applied may not be made applicable to the facts of this case. It is the accepted rule that a tenant in common not authorized by his cotenants cannot execute a lease that will bind them without subsequent ratification. 38 Cyc. pp. 101-104; 1 Devlin on Deeds (3d Ed.) § 109. It was not shown by the evidence that Margaret Coolidge did any positive acts of acceptance of benefits or oil royalties arising under or resulting from the lease to the oil company. There was no producing oil well on the land until from and after July 14, 1931. This suit was filed at a time shortly after the well came in and prior to September 26 1931. The rule that tenants in common, being owners of several interests, may ratify the acts of each other or acquiesce therein, is made applicable only against the nonconsenting tenant where there is attempted conveyance or lease, not of an undivided distributive share or estate in the land, but of the entire tract or some specific portion of the whole of the common property. 38 Cyc. p. 111. Unless the tenants in common signing the lease purported to lease all the land as if they were the sole owners, there would be absent the elements of ostensible ownership, or of ostensible agency which is necessary to be proven in order to predicate estoppel or preclusion to deny the existence thereof. There would be no such appearance of power in dealing with the rights or estate of the nonjoining tenant on which to found ratification and acquiescence of the particular act done or transaction. Ratification applies to agency. Mondragon v. Mondragon, 113 Tex. 404, 257 S.W. 215.
The present case is quite unlike the cases cited. In the case of Merriweather v. Jackson (Tex.Civ.App.) 38 S.W.2d 599, the mother undertook to convey to the oil company the specific portion of 5 acres of land out of a tract of the common property covering 162 acres. Later the mother and two daughters undertook to lease 157 acres of the tract, describing it as "containing 157 acres after deducting five acres off of the Northeast end of the tract conveyed to the Luling Oil Company." The circumstances and recital there went clearly to show that sufficient assent had been given by the daughters to the prior conveyance of the mother to make it operative entirely. The act of recognition was so distinct and emphatic as to preclude the daughter from afterwards denying that the mother owned and held the entire five acres. In the case of Texas Pacific Coal Oil Company v. Kirtley (Tex.Civ.App.) 288 S.W. 619, two tenants in common executed an oil lease and the lessees drilled productive oil wells. The cotenant who did not join in the execution of the lease did join in the orders, and took his proportion of the oil royalty after the oil was produced. Such acts on the part of the nonjoining tenant in dealing with the oil produced as his part of the oil royalty under the lease was strong evidence of acquiescence and consent to the leasing. He not only recognized the lease as existing, but actually took and claimed the royalty benefits resulting from it. In such affirmative circumstances, ratification and assent may be reasonably inferred, as was done by the court. In the present appeal Margaret Coolidge received no benefits and therefore that rule would not be applicable. 2 C.J. § 115, p. 495. In the case of Van Deventer v. Gulf Production Co. (Tex.Civ.App.) 41 S.W.2d 1029, 1038, the facts show that the mother and sister executed a lease of the entire land, and afterwards the brother, L. Q. Van Deventer, joined with his sister and mother in the execution of an option contract to purchase 72 1/2 acres of the 120 acres leased, and subsequently in executing a warranty deed which recognized that the land was encumbered by the oil lease. Further, as stated by the court, "Also, we have the additional fact that on the testimony of his mother he [L. Q. Van Deventer] received from her a part of the proceeds of the sale of the 25 acres [which was under lease] of land as well as the other lease money." The court thought, and correctly so, that the circumstances of the case brought it within the ruling in the case of Texas Pacific Coal Oil Co. v. Kirtley, supra, as supporting estoppel by ratification and acquiescence on the part of L. Q. Van Deventer. There was evident not only the recital in the deed of the existence of the lease, but the positive acts of L. Q. Van Deventer of accepting benefits and sharing in the consideration paid for the lease. Such acts of L. Q. Van Deventer amount in effect to the consent to the lease as existing and of intention to carry it in effect. In the present case there was no act of acceptance of benefits by Margaret Coolidge.
Upon another ground, however, we think the plaintiff would be entitled to recover, assuming the instrument presented on September 12, 1930, for execution was legally valid as a lease by Margaret Coolidge. Such lease must be regarded as having expired by its terms for lack of payment of rental to Margaret Coolidge on April 25, 1931. The oil company made payment of rental in the Overton bank but to Mrs. Price as guardian of Margaret Coolidge. The rental was never tendered by the bank nor the oil company to Margaret and there was no offer of tender to her or direction to have it credited to her in the bank. It was not shown that the bank had the power to appropriate the money to the credit of Margaret. There is no dispute as to these facts. The instrument expressly provides for forfeiture for nonpayment of rentals, annually from the date of the instrument (which was April 25, 1928), unless drilling operations were begun. Drilling operations had not begun before April 25, 1931.
Therefore, in the light of the grounds and reasons above reviewed, it is concluded that the judgment in favor of the appellees should be reversed and here rendered in favor of the appellant Margaret Coolidge Clark, as against the appellees the Humble Oil Refining Company and the Gulf Production Company, decreeing cancellation of the oil and gas lease upon the 440-acre tract of land executed on September 12, 1930, so far as the lease pertains to and affects her one-sixth undivided interest in the 440 acres. The cost of this appeal and of the trial court to be taxed equally against the appellees.