In re Atlas

Hubbs, P. J.

(dissenting). I dissent and vote for affirmance. Both parties moved for a directed verdict. Therefore, all facts *43in the catee are resolved in favor of the respondents. The appellant is standing on the lease, insisting on his right to continue in possession under it. He is, therefore, bound by all of its terms. He has the right to have the $5,000 credited as provided in the lease but cannot recover the $5,000 and continue to hold under it. I do not think there has been a conversion of the $5,000 by the respondents. The lessee has not been deprived of his right to have it credited as provided in the lease.

Final order and order denying motion for new trial reversed on the law and facts and final order granted, dismissing the petition and providing that the lessee recover $3,637.29 on his counterclaim, with interest thereon from June 27, 1925, with costs in all courts.