OPINION DENYING A REHEARING.
3. Same — Constitutionality of Statute Raised Too Late for Review. Consideration of the constitutionality of the statute referred to is refused because not presented until after the decision of the case.The opinion of the court was delivered by
Mason, J.:1. This case was brought under the statute (Gen. Stat. 1915, §§ 4992, 4994 and 4995) making the lessee liable for a refusal upon demand to discharge of record an oil and gas lease that has been forfeited. The plaintiff recovered and the judgment was affirmed. In a motion for a rehearing the defendant urges that in accordance with the rule in actions for slander of title special damages were required to be pleaded and proved in order to sustain a recovery, and that a reversal should be ordered because the plaintiff did not plead or prove that a sale of the lease was lost through the failure of the defendant to clear the record. The plaintiff’s husband testified that if it had been free (that is, if the release had been entered), he thought he could have leased it (the land) for at least $500 per acre. We regard this as open to the meaning that he could and would have made a sale for that price if it had not been for the record — that a sale was prevented by that means. No details were given, but they could have been developed if desired by cross-examination. The generality of statement in the pleading and proof not having been objected to upon the ground now urged, either in the trial court or in this court until the filing of the motion for a rehearing, is not now available to the defendant as an objection to the judgment.
2. In the motion for a rehearing the defendant also for the first time urges that if the statute is so interpreted as to allow a recovery against a lessee for a failure to discharge a lease which in the ensuing litigation he claims to be still valid, it is obnoxious to various provisions of the federal and state constitutions, inasmuch as without substantial reasqn it places burdens on one litigant not borne by the other. At this stage of the proceedings we can hardly be expected to enter into a very close examination of a newly suggested constitutional question, but we think the following considerations sufficient to dispose of the matter so far as concerns the present case:
The statute here involved is quite analogous to those rendering a mortgagee liable to damages and attorney’s fees for a failure to release the mortgage upon full payment. It is quite generally held, although there is some difference of judicial opinion as to the exist*669ence and extent of the rule, that in an action under such a statute it is a sufficient defense to show that the refusal was due to an honest, although mistaken, belief that the mortgage had not been fully-paid. (Parkhurst v. National Bank, 53 Kan. 136, 35 Pac. 1116; 27 Cyc. 1428.) Where an action is brought upon such a statute or one of a similar nature the fact that the defendant unsuccessfully undertakes to justify his conduct in refusing to perform the duty required of him cannot be accepted as conclusive proof of his good faith; otherwise the statute would be of little practical value. Here the defendant might have presented to the trial court the issue of his honest belief in the continued validity of the lease, asked an instruction that this belief if established would constitute a defense, and complained on appeal of the ruling if such charge had been refused. But these steps were not taken, and we are unable to see how the contention respecting the defendant’s purpose can now be made available to him.
3. With the statute so interpreted as to make good faith a defense the constitutional questions do not seem of such character as to justify us in reopening the case for their consideration.
The motion for a rehearing is overruled.