JOSEPH A. PROUT et al. vs. THE HOY OIL COMPANY et al. Appellees. (P. C. ANDREWS et al. Appellants.)

Opinion filed April 23, 1914.

1. Leases—owner of a dower interest in land has no power to make oil and gas lease. The owner of a dower interest in land has no power to make a lease under which oil, gas or minerals can be removed from the land, unless she has been authorized in writing by the owner of the fee to make the lease as his agent.

2. SAME―an oil and gas lease is not void because executed on Sunday. In Illinois the fact that an oil and gas lease, or other contract, is executed on Sunday does not render the lease or contract void.

3. SAME what is not a false representation. A representation. by a party desiring to obtain the execution of an oil and gas lease by the owner of a dower interest in land, to the effect that a former lease made by her was invalid, is not a representation of fact but merely an opinion as to the legal effect of the lease, and such opinion furnishes no basis for a charge of fraud in obtaining the execution of the second lease by her, particularly where the first lease was, in fact, invalid.

4. SAME-rule where parties are dealing at arm's length. Parties desiring to obtain an oil and gas lease from the owner of the fee, where no fiduciary relation exists, are not obliged to volunteer any information as to the surrounding conditions, although if they do volunteer information for the purpose of influencing his action they must tell the truth and the whole truth.

5. SAME essential elements of a false representation. A false representation such as will warrant a court af equity in setting aside a contract must be a statement of a material fact which the party making it knows is untrue and which is made for the purpose of inducing action by the other party, who believes the statement and acts in reliance thereon.

APPEAL from the Circuit Court of Wabash county; the Hon. WILLIAM H. GREEN, Judge, presiding.

S. J. GEE, and JOHN MCGAUGHEY, for appellants.

KOLB & WHITE, and JONES & Low E, for appellees.

Mr. JUSTICE VICKERS delivered the opinion of the court:

Joseph A. Prout and his mother, Mary Prout, and Robert Rapp, Charles D. Carter and P. C. Andrews, filed their bill in equity in the Wabash circuit court to cancel an oil and gas lease and for other relief against the Hoy Oil Company and others who were supposed to have some interest in said lease. Several of the defendants filed a disclaimer and were dismissed out of the case. The Hoy Oil Company and B. F. Wireback were the only defendants who appeared to have any interest in said lease. Answers were filed denying the material allegations of the bill, and a hearing was had upon evidence taken in open court, resulting in a decree dismissing the bill for want of equity. A freehold being involved, complainants Carter and Andrews have prosecuted an appeal direct to this court.

This contest is between claimants under two alleged leases, both of which purport to lease the oil and other minerals in the same land. The ultimate question is as to which of the two leases is valid.

The circumstances preceding and connected with the execution of the two leases are as follows: Prospecting for oil and gas in the vicinity of Allendale, Illinois, and the taking of leases for that purpose, had been going on during the first half of the year 1912. A prospect well had been sunk on lands owned by a man by the name of Biehl. On July 30, 1912, oil was struck on the Biehl land in such quantity that the well filled up and ran over the casing, which projected eight or ten feet above the floor of the derrick used in drilling the well. This was the first well in Wabash county that produced oil in paying quantities. The Biehl well was about one-half mile east of north of the Prout lands which are involved in this controversy. After the Biehl well came in the prices of leaseholds advanced rapidly and competition in procuring them became sharp. The fee in the 52 acres embraced in the two leases in con

troversy was in Joseph Prout. His mother, Mary Prout, had an unassigned dower in the premises. She was a widow, about seventy-two years of age, and resided in Allendale, two and one-half miles distant from the 52-acre tract above referred to. Her son, Joseph, who owned the fee, was a married man and resided with his wife in Chicago. After the Biehl well came in a number of persons attempted to procure an oil lease on the Prout land. About nine o'clock in the morning of July 31, 1912, being the next day after the Biehl well came in, Carter and Rapp called on Mary Prout and obtained from her a lease of the tract, in which she had a dower interest. This lease was made in consideration of one dollar and a covenant to pay one dollar per day until a well was put down on the premises, unless such well should be completed within six months from the date of the lease. At the time the lease was signed by Mary Prout, Carter and Rapp advanced her $31, which was a month's rental but was not due under the terms of the lease unless the lessees failed to drill a well within six months from the date of the lease. Carter and Rapp knew the condition of the title and that it would be necessary to have the lease executed by Joseph Prout in order to make it valid. Some time before the execution of this lease by Mary Prout she had written to Joseph advising him that there was a probability that she would have an opportunity to make an oil lease on the land and asking his advice in regard to the matter. He answered this letter, and the answer had been received by Mary Prout before Carter and Rapp called on her to secure the lease. Neither Joseph's letter nor a copy thereof was produced on the trial. The witnesses who claim to have seen the letter vary somewhat in their recollection of its contents. Joseph Prout testified the contents of the letter were as follows: "This will be your authority to go ahead and lease; go ahead and use your own judgment in leasing the land, if you think you have a good proposition; I will leave it to

you." Mary Prout testified that the contents of the letter were: "Just lease if you think it is best; do as you please about it." Rapp testified that he saw the letter on the day that he and Carter obtained their lease, and that the letter said, "Go ahead and lease the land;" that what she did would be all right with Prout; that what he wanted was a copy of the lease. Carter said that the letter contained this language: "You may lease the land but I want a copy of the lease." The above is all the evidence found in the record bearing upon the contents of this letter. It is necessary to have the evidence in regard to the contents of this letter stated in detail, for the reason that one of the questions to be determined is whether it authorized the mother to enter into a lease that would be binding upon the interest of Joseph Prout. A copy of the Carter-Rapp lease was left with Mary Prout.

About two o'clock in the afternoon of July 31, being about five hours after Mary Prout had signed the CarterRapp lease, George A. King, W. T. Leach and Charles Tanquary arrived at the home of Mary Prout in an automobile. King, who was acquainted with Mary Prout, went in to see her, and learned from her that Carter and Rapp had been there in the forenoon and that she had signed a lease to them, and she exhibited the copy of the lease to King. Leach and Tanquary were then called into the house, and after examining the Carter-Rapp lease, and knowing that Mary Prout only had dower in the land, advised her that the lease she had signed to Carter and Rapp was not valid. After Carter and Rapp had left the Prout home, and before the arrival of King, Leach and Tanquary, Mary Prout had had an interview with her son-in-law, Mr. Leighty, the result of which was that she directed Leighty to telegraph her son, Joseph, that she had signed a lease but that she advised her son not to sign it. The telegram, which was sent at 12:10 P. M. following the execution of the CarterRapp lease at 9:00 A. M., omitting the address and signa

ture, is as follows: "Your mother leased that fifty acres this morning but is sorry of it, so do not sign it and you will get big money for it; we have a big oil boom on." After convincing Mary Prout that the Carter-Rapp lease was not valid, another lease was drawn leasing the premises to Leach. This lease contained substantially the same provisions that were in the Carter-Rapp lease, and in addition it provided for a cash payment to Mary Prout, in the nature of a bonus of $525. She, probably relying on the influence her telegram would have upon her son, assured these parties that her son would sign the last lease and that he would not sign the first. To protect the lessee against the possibility that Prout would not sign the second lease, the words, "To be cashed when J. A. Prout and wife sign the lease," were by the consent of all parties written across the face of the check for the $525 bonus, which was delivered in that form to Mary Prout.

After the execution of the second lease Leach and his associates drove to Mt. Carmel, a distance of ten miles, and made an effort to reach Prout by long distance telephone but were unable to do so. It was then arranged that King and Leach should go to Chicago that night to procure the signature of Prout. The party left Mt. Carmel in an automobile in the evening of the 31st and again went to Mary Prout's residence in Allendale, arriving there about nine o'clock in the evening. A letter had been prepared, addressed to Joseph Prout, advising him to sign the Leach lease, and it was for the purpose of obtaining Mary Prout's signature to this letter that the second trip to Allendale was made in the evening. She had retired when the party arrived but got up and signed the letter. The party then drove in an automobile from Allendale to Vincennes, Indiana, where Leach and King caught a night train for Chicago. The letter which Mary Prout had signed contained a statement that she had signed the Carter-Rapp lease and advised her son not to sign that lease but requested him to