Argued May 21, 1872
Decided September term, 1872
L.J. Lansing for the appellant. T.R. Strong for the respondent.
Upon the trial the defendant claimed that it was the duty of Thayer Todd, under the contract signed by him, before July 1, 1864, to bore at least 380 feet in addition to the boring already done, unless they should find oil nearer the surface, and that he was not obliged to execute the conveyance called for by his contract unless they had done so. The plaintiff, on the contrary, claimed that the contract simply required Thayer Todd, before July 1, 1864, to examine and explore the lands, and satisfy themselves that there was oil there, and then upon their election the defendant was bound to convey, and this was the construction put upon the contract at Special Term. The court at General Term adopted the defendant's construction of the contract, and reversed the judgment upon the sole ground that the plaintiff had not before July 1st, bored to the depth of 380 feet or found oil nearer the surface.
I am of opinion that the construction put upon the contract at Special Term was the correct one. Prior to the first of July the contract gave Thayer Todd a license to go upon the lands and explore, bore, test and examine them; and if they became satisfied that there was oil there in sufficient quantities, then, upon their election, the defendant was to convey. The time when they were to commence boring was not otherwise specified than that it was to be as soon as they conveniently could; and there is no satisfactory evidence that the boring was not commenced as soon as convenient, and prosecuted in good faith with reasonable dispatch.
But there is an obstacle in the way of plaintiff's recovery which I am not able to overcome, which was not noticed at Special or General Term, and which was but slightly noticed upon the argument before us. The defendant gave Thayer Todd a license to explore, bore, test and examine the lands; and in case they found oil, or became satisfied that there was oil in the lands, and elected before July 1st to take them, he agreed to convey to them or whomsoever they might direct. Until they should elect, they had no interest in the lands; they had a mere license to go upon the lands, with the right of election. This license extended only to them and their agents. They could not sell or assign it. A mere license is personal to the licensee, and is not salable or transferable. The right of election was personal, and they could not transfer it. It was upon their becoming satisfied, and making the election, that the defendant agreed to convey. In Vandenburgh v. Van Bergen (13 J.R., 212), A., in 1734, granted to B. a certain saw-mill on the Coxsackie creek, with the ground and stream of water thereunto belonging; "and also the full liberty and license to erect and build another mill on any other place at or on the same creek, with like liberty of ground and stream of water." It was held, though B., in his lifetime, would have had a right to have erected a mill on the creek, and to have overflowed, so far as was reasonable and necessary, the land of C., adjacent to the creek, and subsequently purchased of A., yet that B., never having elected a place for another mill, or exercised his right to erect such other mill during his lifetime, it became extinct at his death; and the right could not be claimed or exercised by his heirs or assigns. The decision proceeded upon the ground that the right of election was not coupled with an interest which vested absolutely at the time of the grant. In Coke upon Littleton (145 a) the learned commentator lays down six rules as to elections, the first of which is as follows: "When nothing passeth to the feoffee or grantee before election to have the one thing or the other, then the election ought to be made in the life of the parties, and the heir or executor cannot make election. But when an estate or interest passes immediately to the feoffee, donee or grantee, then election may be made by them or by their heirs or executors."
Under the contract in question, prior to their election, no interest or estate in the lands was given to Thayer Todd which they could transmit to their heirs or transfer to their assigns. Hence, under the rules laid down by the authorities cited, the right of election was personal to them.
They did not go upon the lands after the execution of the contract by the defendants, and did not make any examinations or explorations for oil upon the lands, either in person or through their agents. They did not become satisfied that there was any oil in the lands, and did not make any election to take the lands. The plaintiff made some examination, became satisfied and made the election. But he did not act or profess to act as agent for Thayer Todd. He made the election for himself, in his own right, as assignee of the contract. His election did not satisfy the contract nor the requirement of the law.
Authorities were cited by the counsel for the appellant to show that an assignee of a contract for the purchase of land can compel specific performance against the vendor. This is not disputed. In such case the vendor, having a present interest by his contract in the land, may assign it, and a court of equity, looking, as it always does, to the real parties in interest, will ordinarily compel specific performance against the vendor. But these authorities, for reasons above stated, are not applicable to this case.
The order of the General Term should therefore be affirmed and judgment absolute ordered against the plaintiff, with costs.
Order affirmed and judgment accordingly.