Saunders v. Busch-Everett Co.

On Motion to Dismiss.

PROVOSTY, J.

[1, 2] This being a suit to annul an oil and mineral lease made by the plaintiff to the defendant, the Busch-Everett Company, to a large tract of land, and plaintiff having appealed from an adverse judgment, motion is made to dismiss, the appeal on the ground that plaintiff has. acquiesced in the judgment. This acquiescence is sought to be deduced from the fact that subsequently to the rendition of the. judgment plaintiff sold to a third party an undivided half of the oil and minerals in, and under a part of said land by a notarial act duly recorded, containing the following, clause:

“And, whereas, said land is now leased to the-Busch-Everett Company, and by the Busch-Everett Company assigned to the Pasadena Petroleum Company, for development for oil and gas, as shown by lease recorded in the recqrds of De Soto parish, this sale is made subject to said lease, and this sale covers and includes an undivided one-half interest in all royalties and rentals that may be due under the terms of said lease.”

It is argued that by this clause plaintiff admitted the validity of the lease as to the part of the land embraced in the sale, and that, the lease being indivisible — not susceptible of being valid in part and invalid in part — the recognition of its validity as to a part of the land was a recognition of its validity as to the whole; and, ergo, was an admission of the correctness of the said judgment, and an acquiescence therein. That it was either this, or it was a fraudulent attempt on the part of plaintiff to defraud said third person by depriving him of “an undivided interest in all the royalties and rentals that may be due under said lease.”

[3] This argument impresses us not at all. ’Even if plaintiff had made an express admission of the validity of the lease and of the correctness of the judgment appealed from, this would not have furnished ground for dismissal. While the admission of the correctness of a judgment may furnish the best of grounds for affirming the judgment on appeal, it furnishes no ground whatever for dismissing the appeal on the ground of acquiescence; acquiescence implies consent; admission does not. A candid person admits a thing, not because he wants to do so, but because truth compels him to do so; whereas, it is the element of consent in acquiescence that furnishes the ground for dismissing an appeal. What we here say with regard to an admission not forming a basis for dismissal is illustrated by the fact that an admission furnishes no ground for estoppel until it has been acted on to the prejudice of the person to whom it was made. 16 Cyc. 755. But, putting all this aside, as savoring, perhaps, more or less of refinement, what are the plain facts of the matter? The lease was duly recorded, and therefore any sale made by plaintiff of the oils and minerals embraced in it was necessarily subject to it. This condition of things was an existing, stubborn fact, which plaintiff did not have the power to change. The concealment, or attempted concealment, of it by plaintiff from his vendee would have constituted— what the defendant intimates the mention of it was — a fraud upon the said vendee. In common honesty it had to be mentioned. So that, all that plaintiff could do was to do exactly what he did do, namely, mention the fact of the existence of the lease and of the property passing subject to it, and, at the same time, convey all the rights he had un der it. By this means the vendee was placed exactly in plaintiff’s shoes with reference to the 'oils and minerals proposed to be sold; in other words, the object of the sale was fully accomplished.

To argue from this, that plaintiff intended to ratify the judgment from which he was appealing, and abandon his appeal, appears to us to be far-fetched in the extreme. Nothing shows that he intended anything of the kind. ITe had to either do as he did, or else ■not make the sale; and, unquestionably, he was at perfect liberty to make the sale. Perhaps, for his own greater safety, he might have gone further and mentioned the fact of the pendency of the present suit; but his not having done so is a matter which in no way, shape, or form concerns the defendant.

[4-6] It is argued, further, that if this sale had been made prior to the institution of the present suit, it would “indubitably” have operated as an estoppel to it, and that therefore it is an acquiescence in the judgment.

We fail entirely to see the force of this reasoning. An admission not acted upon cannot serve as a basis for estoppel. Defendant has never acted on this so-called admission; so that, even if it had been made prior to this suit, the defendant could not have invoked it as a basis for estoppel. Moreover, nothing is more fundamental in the law of estoppel than that strangers to a deed cannot avail themselves of an estoppel arising from it. 16 Cyc. 710. True, if, in the present case, plaintiff’s vendee should prefer that the lease should not be annulled, but should continue in existence, so that he might reap the advantages under it, he might set up this sale of all the plaintiff’s right under the lease as an estoppel to the further prosecution by plaintiff of the present suit to annul said lease; but this is no business of the defendant. And, besides, we have little doubt that plaintiff’s said vendee is as desirous to have said lease annulled as plaintiff himself is, and for the same reasons.

[7] In the said act of the plaintiff and appellant we fail to discover even the slightest evidence of acquiescence, whereas to take away the right of appeal there must be an unconditional, voluntary, and absolute acquiescence in the judgment on the part of the appellant, who must have intended to acquiesce and abandon his right of appeal. Sims v. Jeter, 129 Da. 263, 55 South. 877, and authorities there cited.

The motion to dismiss is therefore overruled.