not avail himself of it the term will continue, for the lessee cannot elect that it shall cease or be void. Taylor on L. & T., supru. Where there is a proviso in a lease that on non-payment of rent the term shall cease, the lessor and not the lessee has the option of determining the lease upon a breach made. Reid v. Parsons, 2 Chit. 247. "The English law in this respect had been generally followed in this country, and such a lease is held to be good until avoided; though the lessee is estopped to set it up against the lessor. A lessee cannot avail himself of his own act to vacate a lease, on the principle that no man shall be permitted to take advantage of his own wrong. Wood's L. & T. 1204. So Mr. Parsons in his Law of Contracts, Vol. I., p. 507, referring to the distinction formerly recognized between the effect of a proviso declaring that the lease shall be void in a specified event, and a proviso enabling the lessor to determine it by re-entry, says: 'This distinction is now exploded, and it is held that the lease is voidable only at the election of the lessor, but not of the lessee, though the proviso expressly declare that it shall be void.' To the same effect are the cases of Clark v. Jones, 1 Den. 516, and Phelps v. Chesson, 12 Ired. 194, and many others that might be referred to.

"In Pennsylvania the older doctrine would seem at first to have been adhered to, that in a lease for years with condition, if the condition be broken by the lessee, his interest was ipso facto void by the breach, and no subsequent recognition of the tenancy could set it up. Kenrick v. Smick, 7 W. & S. 41. In the case cited there was a lease of land upon condition that the rent should be paid upon certain specified dates, and if a certain default was made for three months, neglect to pay after ten days' notice should render the lease null and void. The default occurred and notice was given, and it was held that after ten days the lease was ipso facto void, without re-entry, and could not afterwards be affirmed or continued. In Sheaffer v. Sheaffer, 37 Pa. 525, the doctrine announced by Justice Sergeant in Kenrick v. Smick, supra, was adhered to; the English cases were brought into contrast with the doctrine of Kenrick v. Smick, and it is admitted that the rule of the English courts is followed in most of the States of the Union. In Davis v. Moss, 38 Pa. 346, the rule of the previous cases is again apparently recognized, but its rigor is relaxed in this, that the forfeiture is said to depend upon the terms of the instrument, unless there be evidence to affect the landlord with a waiver of the breach, like the receipt of rent or other equally unequivocal act.'

"The distinction between the Pennsylvania cases referred to and the weight of authority elsewhere, therefore, would seem to be that by the former the lease, upon breach of the condition, is ipso facto void, unless by some unequivocal act of the lessor it is waived, whilst by the latter it is void if the lessor elects by some positive act to take advantage of it. We do not understand that in either case a re-entry is required to complete the forfeiture. This almost amounts to a distinction without a difference. In practice, the prima facies being different, it merely shifts the burden of proof from one party to the other.

"It will be observed, moreover, that the Pennsylvania cases already referred to are all cases in which the forfeiture was set up by the lessor

upon the default of the lessee; in none of them did the lessee set up his own default as a cause of forfeiture. No case has been called to our attention, in this or any other State, in England or elsewhere, which recognizes the doctrine that a party may take advantage of his own wrong, or set up his own default to work a forfeiture of his own contract. Persons may, of course, contract in this form and to this effect if they choose, but we do not understand the parties to this contract to have so intended. But the rigid rule of Kenrick v. Smick, supra, is further relaxed in the very recent case of Galey v. Kellerman, 123 Pa. 491."

"Thus it appears that the distinction formerly maintained between the rulings of the English courts and of the courts of our sister States, and the rulings in Pennsylvania, is no longer found to exist. We have by slow approaches at last apparently turned into the general current of cases, in which is found, without doubt, the great weight of authority, both in England and in this country."

Hoch v. Bass, 133, 328 (1890). Lease of ochre mine (same lease as in s. c. 126, 13, supra), by which lessee covenanted to mine a certain quantity, and pay a certain royalty on a minimum quantity, and that if any of the covenants above mentioned should not be complied with for the term of three months, then the above lease to be null and void."

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The lessee being in possession after failure to pay royalty, lessor could not maintain a bill in equity for injunction to enforce a forfeiture. There was an adequate remedy at law by assumpsit for arrears or ejectment for the land.

Palmer v. Truby, 136, 556 (1890). The lessee of land demised for the production of petroleum alone, who obtains gas but not oil, and is thereupon dispossessed by ejectment brought upon an alleged forfeiture, has no equity to be reimbursed the expenses of his operations out of the proceeds of the gas obtained. The terms of the lease did not contemplate or provide for the production of gas.

Thompson v. Christie, 138, 230 (1890). Upon a covenant in an oil lease, that the lessee shall drill a well within a specified time, and on failure so to do shall pay the lessor $40 per annum until such well is commenced, the lessor cannot recover in ejectment for failure to drill the well, the lease containing no clause providing for a forfeiture of the lessee's rights upon such failure. The rule prevailing in equity is, that to enable the lessor to declare and enforce a forfeiture, the right so to do must be distinctly reserved; the proof of the happening of the event upon which it is to be exercised must be clear, the right must be exercised promptly, and the result of enforcing the forfeiture must not be unconscionable.

The plaintiff submitted evidence of a parol agreement contemporaneous with the defendant's lease, and on the faith of which it was signed, that the annual payments should commence one year earlier than stipulated for, and that upon failure to make the first of such payments the lease should be forfeited; but this was denied by the lessee. For several months before the suit was brought the defendant had been in actual possession engaged in drilling a well, and there had been no attempt to exercise a right of forfeiture except by the device

of executing the new lease to the plaintiff, and the defendants proposed to show offers of payment refused by the lessor.

Upon the facts of the case as they were shown (and as the defendants offered to show them), the plaintiff would not be entitled to have the lease, under which the defendant held, reformed, to enable him to assert a forfeiture in this action, as in equity the conscience of a chancellor would not be moved to aid him therein. Though a parol engagement for a forfeiture of the prior lease, for failure to commence the well or pay the rental, was entered into, yet an assignee of the lease for a valuable consideration and without notice of the agreement would obtain and could convey a good title even to a vendee who had actual notice.

Kennedy v. Crawford, 138, 561 (1890). K. made an oil and gas lease not to exceed fifteen years to C., reserving royalty in kind upon the oil and of ten per cent of the net proceeds of the gas. C. agreed "to commence drilling on said tract within ninety days from June 27, 1885, and to prosecute said drilling with due diligence to success or abandonment, and should oil or gas not be pumped or excavated in paying quantities on or before June 27, 1886, then this lease to be null and void." There was a further provision for forfeiture, for failure to comply with any of the terms or conditions of the lease.

This lease required that within the year a product should be obtained capable of division between the parties in the proportions mentioned in the lease. Unless this was done the drilling was not prosecuted to success, provided lessee was not prevented by lessor.

Even if oil or gas was found in paying quantities, lessee was not at liberty to leave work from December to April. To do so would not be prosecuting the drilling with due diligence. The lease was not complied with by simply excavating oil or gas in paying quantities at any time before June 27, 1886. He was subject to an obligation of due diligence all the time. The question of what constitutes diligence is for the jury.

Ray v. West Pa. N. Gas Co., 138, 576 (1890). Lease of a tract for the purpose of operating for oil and gas, lessor to receive one-tenth of the oil produced and $500 per annum for each well drilled in case gas was conducted and used off the premises. The lease contained this clause: "The party of the second part agrees to pay, within ten days from execution of this lease, the sum of $53; and if a well is not completed within six months from the execution of this lease, the said second party agrees to pay a further sum of $53; and so on, continually every six months during the continuance of the term herein specified.

"The said sum of $500 gas rent shall be paid within one month from the time said well is completed on said premises, and to be paid annually in advance thereafter. It is further agreed by said second party that if a well is not completed within fifteen months from the date of this lease, they are to pay a further sum of $250, said sum to be a credit on well when drilled; and in case of failure to complete one well within such time, the party of the second part hereby agrees to pay thereafter to the party of the first part, for any future delay, the sum of $106 per annum, within one month after the time for completing such

well, as above specified, payable semi-annually at the First National Bank of Washington, Pa.; and the party of the first part hereby agrees to accept such sum as full consideration and payment for such yearly delay, until one well shall be completed. And a failure to complete one well, or to make any such payment within such time and such place, as above mentioned, shall render this lease null and void, and to remain without effect between the two parties.'

The plaintiff's statement averred that the defendant had not completed a well on the demised premises, and claimed to receive $53 due Jan. 7, 1889; $53 due July 7, 1889; $250 due Oct. 7, 1889; and $53 due Jan. 7, 1890. Defence was that lessor had never been in possession, and that failure to put down a well avoided the lease without re-entry, and there was consequently no liability to pay. Held, lessee could not set up a forfeiture. The fact that lessor was

in possession is of no significance.

Fennell v. Guffey, 139, 341 (1890). An oil lease provided that lessor should complete one well within six months, and upon failure to do so should pay the lessor "for such, the sum of $231 per annum, within three months after the time for completing the well," with a provision that a failure to complete the well or make the payment within such time should avoid the lease.

The lessee having failed to complete the well, or pay the stipulated sum, he could not set up a forfeiture as a defence to an action for the rental. Wills v. Nat. Gas Co., 138 Pa. 222.

Springer v. Citizens' N. G. Co., 145, 430 (1891). By a lease of land for the purpose of producing oil and gas the lessee agreed to pay a certain sum upon the execution of the lease, a royalty on the oil produced, and if gas were produced in paying quantities, a certain annual rental on each well. The lease also contained a covenant that the lessee should complete a well within six months, and in case of failure to do so to pay a certain sum semi-annually until completion," and the parties of the first part hereby agree to accept such sums as full consideration and payment for such semi-yearly delay until one well shall be completed; and a failure to complete one well or to make any of such payments in this lease mentioned, within such time and at such place as above mentioned, renders this lease null and void, and to remain without effect between the parties hereto."

In an action for these sums, it was held that the lessee could not set up a forfeiture. The forfeiture clause was inserted in the interest of the lessor, who had the option upon default to assert the forfeiture or affirm the continuance of the contract.

Ogden v. Hatry, 145, 640 (1892). A covenant in an oil lease provided that a failure of the lessee to perform "by either completing a well within the term aforesaid, or paying said rental, shall render this lease and agreement null and void, and all rights . . . of any

be extinguished,

and all parties hereunder shall thereupon as if this agreement had never been made." An action for rental was within the rule of Wills v. N. Gas Co., 130 Pa. 222; Ray v. N. Gas Co., 138 Pa. 576, that such a covenant was for the benefit of the lessor, and the lessee by his own act and default could not relieve himself from a liability already incurred. The

clauses after the words "null and void" added more verbiage, but no more force.

Jones v. West Penn. N. G. Co., 146, 204 (1892). A lessee in an oil and gas lease covenanted to complete a well by a certain date, or in default thereof pay for further delay a certain yearly rental from the time specified. "And a failure to complete such well or to pay said rental shall render this lease null and void, and can only be renewed by mutual consent."

The legal effect of the covenant is that the forfeiture is for the benefit of the lessor and is at his option, and such effect can be changed only by an express stipulation that the lease shall be voidable at the option of either party or of the lessee.

An offer by defendant to prove "the uniform construction placed upon such leases by both lessors and lessees" to be that they were forfeitable at the option of either party, was inadmissible. It is no more than an offer to show a popular misunderstanding of the law. Phillips v. Vandergrift, 146, 357 (1892). The lessee in an oil lease covenanted to complete a well in a time certain, or in default to pay the lessor for further delay a certain yearly rental thereafter; "and a failure to complete such well or pay said rental shall render this lease null and void, and not to be revived without the consent of both parties hereto."

An action for rental was within the rule of Wills v. N. Gas Co., 130 Pa. 222, and Ray v. N. Gas Co., 138 Pa. 576, that such covenant was for the benefit of the lessor, and the lessee by his own act and default could not relieve himself from a liability already incurred.

Leatherman v. Oliver, 151, 646 (1892). An oil lease provided that the lessee should complete a well on the leased premises within six months, "or in default thereof pay to the party of the first part for further delay an annual rental of five hundred dollars, payable quarterly in advance." It was further provided that "a failure to complete said well, or pay said rental for ten days after the time above specified for so doing, shall render this agreement null and void, and it can only be renewed by mutual consent; and no right of action shall after such failure accrue to either party on account of the breach of any promise or agreement herein contained."

Held, that upon failure to drill the well within six months the lessor was entitled to the stipulated rental, and that the latter clause did not deprive him of his right of action. By the latter clause the parties meant that the lessor could not re-enter and treat the rights of the lessee as forfeited or abandoned on the day the default happened, but that he must give the lessee ten days of grace in which to make payment before he could take advantage of the default to terminate the lease. The lessee, however, could not compel the lessor to re-enter so as to terminate the lease for his (the lessee's) benefit.

Heintz v. Shortt, 149, 286 (1892). An oil lease provided that the lessee should complete the first well within six months, "or thereafter within sixty days remove all machinery and buildings for the business erected and used, and this lease be declared null and void unless further prosecuted after the first well drilled. The first well was completed within the six months and oil obtained; but thereafter for