(on rehearing). It has been suggested that the petition for rehearing in this case should be granted because the necessary effect of the opinion upon the first appeal, under the style of Henry v. Gulf Refining Co. of Louisiana, 176 Ark. 133, 2 S. W. (2d) 687, was to hold that Henry was entitled to recover some amount of damages. We do not think so.
In that case the circuit court sustained a demurrer to the complaint. The prayer of the complaint was that Henry have judgment for the title and restitution of the possession of the leasehold estates described in the complaint ; that he have damages for the wrongful withholding of said property by the defendant; and that he recover damages against the defendant for the oil and gas wrongfully converted by them. In the opinion of this court it was held that the execution of the second leases by the owners of the land to Henry’s assignor, Conyers, could have no effect to convey any further right to Henry than had already been conveyed to him by the terms of the first leases. There was- no judgment for the restitution of the possession of the leasehold estates to Henry, because his leases had expired by their own terms. Hence he was not entitled to recover possession of the leasehold estate. He was not entitled to damages for the wrongful withholding’ of the premises, 'because his possession of the leasehold premises was not interfered with until his leases expired. There was no eviction, either actual or constructive. His actual possession of the leasehold estate was not interfered with. There was no constructive eviction by the assertion of a paramount title in a third person which could have had the effect to oust Henry. Both leases were executed by the same person as owner. After having made a lease to Conyers and Hunt, which was duly assigned to Henry, all that it was possible for the owner to- grant by a subsequent lease was such right in the leased premises as was not conveyed by the prior lease. The owner of the land, after the execution of the first lease, could not grant- anything in a subsequent lease which he had previously granted in the first lease. Hence Henry, not having been ousted from the possession of the leased premises, was not entitled to damages on that account.
Again, he asked judgment for damages against the defendants for oil and gas wrongfully converted by them. As we have already seen, the lessees under the second leases did not enter the premises and drill oil wells until after the leases which had been assigned to Henry had expired by their own terms.
This covers all the issues raised upon the first appeal. Upon the remand of the case, Henry filed what he terms a second amended and substituted complaint. In it it is alleged that Conyers and Hunt conspired together to hinder and prevent him from completing a well which he had started to drill on the leased premises. He asked for damages on that account. His prayer in that complaint is the same as the prayer contained in his complaint on the former appeal. We have treated the prayer of the complaint as amended so as to conform to the statements made by counsel in opening- the case, which was by ag-reement treated as the evidence introduced at the trial.
Complaint is made of our opinion in the present appeal because the court said that the new leases taken by Conyers from the owners of the land did not purport to commence until after the expiration of the leases which had been assigned to Henry. The use of the word “purport”' might have been left out of the opinion, and, in any event, could only be said to be a misapplication of terms. What the court meant to say, by the use of this word, is that it expressed the substance as it appears on the face of the lease to every person who might read it, and means the appearance and not the legal import of the leases. In other words, we meant to say that there was no express language in the leases showing that they were intended to impair the legal obligation of the first leases which had been executéd by the owners of the land to Conyers and Hunt and transferred by them to Henry. The new leases were executed about a month before the expiration of the fixed period in the old leases. They do contain the following: “It is agreed that this- lease shall remain in force and effect for a term of five years from this date, and as long thereafter as oil and .gas, or either of them, is produced from said land by the lessees/’ We do not think that the legal import of these words was an intent to impair the terms in the leases which had been transferred to Henry. Indeed, such an attempt would have been futile. At the time of the execution of the new leases, Henry was in possession of the leased premises described in the complaint, and such possession was notice to all the world, not only of- the possession itself, but also of the right, title and. interest, whatever they may be* of the party in possession.
In addition to this, Conyers and Hunt had actual notice that Henry was- in possession of the leased premises. There was no assertion of a paramount title of third parties as a result of which Henry was ousted from possession.
The principles announced in Millar v. Mauney, 150 Ark. 161, 234 S. W. 498, relied upon by counsel for appellant, have no application in the present case. In that case there was a suit by appellees as owners to recover possession of certain leased lands. Appellants demurred to the complaint, and made a motion to transfer to the chancery court. They also filed an answer in which they set up that appellees had thrown certain obstacles in their way which prevented them from performing the covenants of their leases. The court held that,-if appellees, by their conduct in instituting lawsuits, or in any other manner, put obstacles in the way of appellant which caused them to fail to perform their covenants, then appellees would be estopped from setting up an abandonment or. forfeiture by the appellants. Appellees based their right to recover possession of their lands on the ground that appellants, as lessees-, had abandoned or forfeited their right of possession of the leased premises. Appellants claimed appellees were estopped by conduct from asserting that they had forfeited or abandoned their rights in the leased premises. Here the owners of the new leases made no claim of abandonment or forfeiture on the part of Henry. They did not enter the land under the new leases until after the term of the first leases had ended. Henry only claims that he did not finish drilling during the first year because he could not borrow money after the execution of the new leases.
In the present case there was nothing done by ap-pellees to prevent appellant from drilling for oil under the terms of the leases which were assigned to him. There was no assertion of any paramount title by third parties. The same landowner had executed both leases. In order to extend the leases which had been assigned to Henry beyond the definite term provided in. the leases, Henry was required to show that he was engaged in the production of oil on the leased premises, and this he failed to do. Hence, at the end of his definite term, the leases expired by their own terms. We do not think that he has shown a legal cause for damages simply by establishing that the owners of the land executed new leases to Conyers about a month before the expiration of the definite terms in the leases which had been assigned to Henry. The execution of these new leases did not prevent him from drilling or exploring for oil. He does not claim such to be the case. He only claims that, when persons who had promised to lend him money to continue his work heard of the execution of these new leases, they refused to furnish him the money with which to carry on his drilling operations.
We adhere to our original opinion, that the execution of the new leases to 'Conyers did not enlarge the right of Henry to a freehold estate under the first leases; and a majority of the court is of the opinion that the failure of Henry’s backers to furnish him drilling expenses on account of the execution of the new leases does not constitute a legal cause of action against the appel-lees for damages. The leases which were transferred to Henry have ended by their own terms, and he is not entitled to recover damages from the appellees for the alleged wrongful taking of oil from the leased premises under the terms of their new leases or for the alleged conspiracy in preventing him from borrowing money with which to carry on his drilling operations. Therefore the petition for a rehearing will be denied.
Justices Wood, Humphbeys and Mehaffy dissent.