The plaintiff in error brought this action in the district court against the defendants in error to recover the possession of certain oil well drilling machinery and supplies, to which it claimed title and the right of possession. The case was tried to the court without a jury. The court found generally for the defendants; and specially that defendants Gibson, Veitch and Miller were, at the time of the commencement of the action and prior thereto, the owners of said property and had the right of property and right of possession thereof at the time of the commencement of the action, and at the time the same was taken from their possession on the writ of replevin; that the value of the property at the time it was so taken from said defendants was $5,625.00. Judgment was rendered, in favor of said defendants and against plaintiff and its sureties on the undertaking for said sum with interest and costs. . From that judgment plaintiff brings error.
The principal question presented is, whether or not a contract by which plaintiff claimed title to the property comes within the following provisions of our statute of frauds, Sec 3751,. Comp. Stat. 1910. “In the following cases every agreement shall be void unless such agreement or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith* * * “Fifth — Every agreement or contract for the sale of real estate, or the lease thereof, for more than one year.”
The plaintiff attempted to prove that the defendants Gibson, Veitch and Miller had agreed with plaintiff to furnish the necessary machinery and perform the work of exploiting certain lands in Big Horn County for oil and gas accord*7ing to the terms of certain — so called — leases held or controlled by plaintiff, and' according to certain additional terms; and if oil or gas was discovered in said lands in paying quantities to develop said land and pay plaintiff a royalty; that if said defendants failed to carry out any of the terms of the contract the plaintiff might repossess itself of the lands and take possession of all property of every kind placed upon the land or used about the wells. The consideration for this agreement was the nominal sum of one dollar and the agreement of the plaintiff to assign and transfer to said defendants all of its right, title and interest in said lands acquired by virtue of said leases. It is not claimed that the agreement or any note or memorandum thereof was in writing and.subscribed by said defendants. The district court struck out and excluded the testimony tending to prove a verbal agreement, and that ruling is assigned as error. Plaintiff’s contention is that the agreement sought to be proved was not an agreement or contract for the sale of real estate or for a lease thereof for more than one year, and hence not within the statute. There were a number of these leases — so called — all of the same tenor, except as to lessors, lands described, time within which work should be commenced and duration. The lan-' guage of each is, that the parties of the first part “have granted, bargained, sold and conveyed, and by these presents do grant, bargain, sell and convey unto the party of the second part, his heirs and assigns, all of the oil, gas, and coal,.and other minerals in and under the following described lands, together with the right of ingress and egress at all times for the purpose of drilling, mining and operating for minerals,” * * * *.
Then follows provisions for the payment of royalties for the several minerals, if discovered, and other provisions and description of land. “To have and to hold the above described premises, unto the said party of the second part, heirs and assigns, on the following conditions: In case operations, for either the drilling of a well for oil, or mining for other *8minerals are not begun and prosecuted with due diligence within six months from date then this grant shall immediately become null and void as to both parties* * * “In case the party of the second part should bore and discover either water, oil or other minerals, then in that event this lease, encumbrance or conveyance shall be in full force and effect for ten years from the time of the discovery of said product, and as much longer as oil, water, gas or other minerals can be produced in paying quantities thereon.” * .* * * “This lease is not intended as a mere franchise, but is intended as a conveyance of the property therein mentioned, and it is so understood by both parties to this agreement.”
Whether this instrument be regarded as a conveyance of the minerals supposed to be contained within the land or as a lease, in either event an agreement to transfer or assign the right, title and interest of the grantee or lessee therein, would be within the provisions of the statute making such agreements void unless such agreement or some note or memorandum thereof be in writing and subscribed by the party to be charged therewith. If it be regarded as a lease, it was for a term of years, subject to be declared forfeited by the lessor for failure of the lessee to begin prospecting within six months, or his failure to continue the same with due diligence; the forfeiture clause in the lease being for the benefit of the lessor. In Underhill on Landlord and Tenant, 643, it is said: “The rule seems firmly established by all the decisions, both in England and America, that however absolute and certain the words of the forfeiture may be, even though they shall expressly declare the lease null and void or at an end, they will be always construed as meaning that it is voidable merely and this at the option of the lessor.” (Ogden v. Harty, 145 Pa. St. 640; Mathews v. Gas Co., 179 Pa. St. 165.)
The contract by which plaintiff claimed the property being such a one as the statute requires to be in writing, and neither tide agreement itself nor any note or memorandum *9thereof being in writing and subscribed by said defendants— they being the parties to be charged therewith, being the parties against whom the contract was sought to be enforced (20 Cyc. 272) — the court properly excluded the oral testimony by which plaintiff sought to prove the agreement.
It is also contended that the court erred in not rendering an alternative judgment. But in this there was no error. Under our statute, Sec. 5010, Comp. Statutes,' 1910, the property taken on the writ is delivered to the plaintiff upon the execution of an undertaking to. the defendant “to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him.” And by Sec. 5017, id., it is provided, “When the property is delivered to the plaintiff, * * ' * * if the jury, upon issue joined, find for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commencement of the suit; and if they find either in his favor, they shall assess to him such damages as they think right.and proper, for which, with costs of suit, the court shall render judgment for the defendant against the plaintiff and his sureties.” There is no statute permitting the plaintiff to satisfy such judgment, either in whole or in part, by a return .of the property. “The plaintiff’s undertaking, when given, stands in the place of the property to the extent of defendants’ interest and the property passes into the exclusive possession and control of plaintiff. (Smith v. McGregor, 10 O. St. 461; Uphaus v. Miller, 68 O. St. 401; Union Pac. R. R. Co. v. U. S., 2 Wyo. 170).” (Boswell v. Bank, 16 Wyo. 161-208.)
The only remaining question is as to the value of the property. Plaintiff contends- that the judgment is excessive. Plaintiff alleged in its petition that the property.was of the value of $5000. The defendants in their answer alleged that it was worth $7000. The testimony, as to value was conflicting; several witnesses stating it was worth $7000, while others testified that it was worth less than $5000. *10We think the value as found by the court is amply sustained by the evidence.
No error appearing in the record the judgment of the district court is affirmed. Affirmed.
Scott and PotteR, JJ., concur.