I concur in the order denying a rehearing for the following *Page 424 reasons: The petition for rehearing complains that the trial court and this court have made a new contract for the parties. I think this is not so.
The paragraphs of the lease upon which the appellants rely are set forth in the opinion. This was a lease for five years. It does not specify the time in which the fencing must be completed. The tenant could comply with the terms of the lease by completing the fencing at any time before the expiration date. The tenant still has two years in which to complete the fencing of the forty acres before he is in default on the fencing feature of the agreement.
The provision relating to grain requires the tenant to "till and cultivate the lands that have been heretofore tilled and cultivated." There would be sufficient or at least substantial compliance if the tenant planted the same number of acres into grain that had "heretofore been tilled and cultivated." The lease was drawn in February 1945. "Heretofore" refers to the period before 1945. In 1944 seven acres were planted to grain. If that year be taken as a measure, and it is the only year before 1945 of which there is any record of the acreage of grain planted, then the tenant has complied with the lease. Sixteen acres were planted in 1945, sixteen in 1946 and four in 1947. That is thirty-six acres in three years, whereas the maximum requirement under the contract was only for 35 acres in five years.
The provisions in the lease relating to clearing the brush only require the tenant during the term of the lease to "clear and put into cultivation as many acres of brush lands as he is able to and can afford to clear and cultivate." To place the tenant in default on this score, the burden of proof was upon the appellants to prove that the tenant was "able" and "could afford" to clear more land than he did. There is evidence to sustain the trial court's finding that this burden was not sustained.