On Rehearing.
The uncontroverted proof showed that the Hammond Oil Company did not ex-' ercise its option to adjust title difficulties in the former lease held by plaintiffs, growing out of their failure to discharge the drilling operations imposed on them by said lease, and thereafter to drill a well after adjusting such title difficulties, and that the operations of the Hammond Oil Company on the lease in controversy were done under the assignment to it by W. B. Hamilton, under the lease he acquired from the land owners. And there were no pleadings by the plaintiffs that the Hammond Oil Company took .over the lease from Hamilton, for the purpose of avoiding any claim of plaintiffs, based upon the lease to them, of date March 16th.
And as noted in our original opinion, those land owners were necessary parties to determine that issue because of their warranty of title to W. B. Hamilton, and under which the Hammond Oil Company claimed, as assignee.
In order to show that the lease the Hammond Oil Company acquired from W. B. Hamilton was impressed with a trust ip plaintiffs’ favor, under any theory of equitable trust, as alleged by plaintiffs, it was incumbent upon the plaintiffs to allege and prove that the Hammond Oil Company acquired that lease in pursuance of its obligations, expressed in the assignment taken by them from plaintiffs, and shown in our original opinion, to wit, that it would undertake to clear plaintiffs’ lease of title difficulties and thereafter proceed to drill a well under and by virtue' of that lease; notwithstanding the specific stipulations in that contract that it would be optional with the Hammond, Oil Company not to perform those obligations.
In the absence of a pleading with the land owners, parties to the suit, of waiver by them of plaintiffs’ failure to do drilling operations in order to avoid a forfeiture of their lease of March 16th, they were in no position to say that the lease was still valid at the time the Hammond Oil Company surrendered it and .took from W. B. Hamilton an assignment of an interest in his lease from the land owners.
If, under any theory presented by plaintiffs’ pleadings, they had any interest in the lease acquired by the Hammond Oil Company from W. B. Hamilton, then they failed to show by any proper pleadings, supported by evidence, the amount of such interest. The testimony of Hamilton that plaintiffs’ lease of March 16th had some influence with him in agreeing to make the assignment to the Hammond Oil Company, would be wholly insufficient for such purpose.
In plaintiffs’ pleadings, it is alleged that they offered to pay the Hammond Oil Company a pro rata part of the $1,750 paid by it to W. B. Hamilton, and also to pay one-half the cost of drilling operations by that company after' it had acquired the lease from Hamilton, and they offered testimony tending to support that allegation.
The statement in the original opinion, that there was an absence of pleading and testimony to that effect, was an oversight, and is therefore withdrawn. However, we believe the same is immaterial, in view of our foregoing conclusions.
It is insisted that the statement in our original opinion, that the Hammond Oil Company did not drill the lease itself, be modified to this extent. The evidence showed that the Hammond Oil Company entered into a contract with W. B. Hamilton, under which the Archer Drilling Company was to drill one well and the Hammond Oil Company was designated to drill the second well, and the Hammond Oil Company paid one-half the cost of drilling the two wells. But that fact likewise has no material bearing upon the conclusions we have reached.
Appellants’ motion for rehearing is overruled.