said instrument, yet they allege that the same was made, delivered, and placed of record to secure the payment of a large sum of money, to wit, the sum of $12,000; and they also allege that said instrument creates a cloud on the plaintiff's title to said land, to the detriment and irreparable injury of said plaintiffs and their heirs.

"That said defendant the R. J. Waddell Investment Company claims an estate in said land by virtue of the instrument aforesaid, but said plaintiff's allege that said claim is null and void.

"Said plaintiffs therefore demand judgment against said defendants and each of them, their assigns, successors, and each of them, that the instrument last aforesaid and the instrument first aforesaid, to wit, said socalled lease, be decreed to be null and void, vacated, and set aside and held for naught, and that each and all of said defendants. their assigns and successors, and each of them, be decreed to be foreclosed of all interests in said land. And said plaintiffs demand judgment for costs."

Exhibit A is the lease given above.

R. H. Nichols, John P. T. Davis, and Whitcomb & Hamilton, for plaintiffs in error. S. H. Piper, for defendants in error.

This

GRAVES, J. (after stating the facts). is an action to cancel a gas lease on the ground that it is void. The particular defects which vitiate the lease, as alleged in the petition, may be summarized as follows: (1) The lessees were unable when the lease was executed to perform the conditions thereof having no right to lay pipes to lessors' premises, which they might want to do, at the end of five years. (2) The lessors expected operations to be commenced before the expiration of the five-year limit. (3) The lease is ambiguous. (4, 5) While the receipt of royalty is of the essence of the contract, the lease imposes no obligation upon the lessees to begin or continue work. (6) The provisions of the lease lack mutuality. (7) The design of lessees and assigns is to hold the land for speculative purposes only. A general demurrer was filed to each of the several causes of action, which was sustained. The plaintiffs in error standing upon their petition, judgment was entered against them for costs. They bring the case here, alleging that the court erred in sustaining the demurrer. This is the sole question presented to this court.

We are unable to attach the importance to these alleged defects which has been given to them by the plaintiffs in error. We cannot agree with the contention that the lease is so inherently vicious as to be void. In support of their claim the plaintiffs in error cite the following cases: Pipe Line, etc., v. Teel (Tex. Civ. App.) 67 S. W. 545;

12

once.

Ray v. Western Pa. Gas Co. (Pa.) 20 Atl. 1065, 12 L. R. A. 290, 21 Am. St. Rep. 922; Glasgow v. Chartiers Oil Co. (Pa.) 25 Atl. 232; Eclipse Oil Co. v. So. Pa. Oil Co. (W. Va.) 34 S. E. 923; Roberts v. Bettman (W. Va.) 30 S. E. 95; Federal Oil Co. v. West. Oil Co. (C. C.) 112 Fed. 373; Martel v. Jennings (La.) 38 South. 253. None of these cases are in point here. No question is decided by any of them which would if followed dispose of this case. The instruments involved in the cases cited are in substance quite similar to the lease in question. There is a margin of difference, however, between the facts involved in this case and those cited, sufficient to destroy their applicability to the question here presented. None of the cases mentioned were brought to cancel the instrument involved, because it was void, but the object in each case was to determine the rights of the parties thereunder. It will be necessary therefore to consider the validity of the lease in controversy, upon its own provisions and conditions. Taking the objections in their order, the first is that it was impossible for the lessee, when the lease was executed, to perform his option, by furnishing gas at the end of five years, to keep the lease alive. We do not understand that an option to do something five years in the future, is void merely because the person making the agreement is unable to perform the contract at The second objection is that the lessors expected operations would be commenced immediately, and not be delayed during the five-year limit, and have been disappointed in these expectations. We do not understand that a written instrument is void, merely because one of the parties expects the other to perform the conditions thereof on his part at once, when by the express stipulations of the agreement such performance may be delayed five years. The third objection is that the lease is ambiguous. While the terms of this instrument are not as clear and specific, as usual in such important agreements, yet it is not difficult to ascertain therefrom what the parties intended thereby, and when this can be done, written contracts should not be set aside as void, merely because to some degree ambiguous. The fourth and fifth objections are apparently regarded as the most important, and are chiefly relied upon. It is claimed that the receipt of royalty is the essence of the contract, and the stipulations therein do not require the lessees to begin or continue operations. The lessees are thereby able to defeat the real object of the lease, and for that reason the instrument is void, in the language of the brief of plaintiff in error: "It cannot be said that this lease was valid for a single minute, either before or after the assignment thereof." This objection is founded principally upon paragraph 4 of the lease.

It may be conceded that obtaining royalty

is the essence of the contract, and also that under these provisions the lessees might continue the lease during its full term of 20 years without doing anything in the way of explorations for gas or oil. These considerations, however, do not make the lease void nor unreasonable. There are no facts alleged in the petition which indicate that these provisions are in any way injurious to the interest of the lessors. Whether or not a contract is unconscionable, unreasonable, or improvident, may depend upon something more than its mere language. The subjectmatter of the agreement, its condition, sur roundings, and the relation of the parties thereto, may become material matters for consideration. The land described in the lease, in the absence of allegations to the contrary, may have been assumed by the district court to be, when the lease was executed, situated remote from oil or gas producing territory. When this lease was executed, the idea of valuable deposits of gas or oil being under the leased premises may have been regarded as somewhat visionary. The lessors may have been disposed to grant very liberal terms to persons willing to make the necessary expenditure to ascertain whether such deposits existed or not. On the other hand, the lessees may have been willing to undertake such explorations if inducements sufficiently liberal, as to time and otherwise could be secured. The terms and conditions of such a contract, including the time during which a lease should continue in force before the commencement of the work of exploration, are proper matters of agreement which the parties have the right to fix to suit themselves. In the absence of fraud, imposition, or mistake, neither of which is suggested here, parties should be left to make their own contracts, and, when freely and voluntarily made, should be held to the conditions thereof, even though it should turn out in the light of subsequent developments that their rights were valued too lightly. In the case of Rose v. Lanyon, etc., 68 Kan. 126, 74 Pac. 625, Justice Burch used language which is quite pertinent here. It reads: "Courts have no right to declare that, whatever the parties may think, operations for sinking a well must begin at once under an oil or gas lease. If this court had done so prior to the time plaintiffs desired to contract they would have rebelled, without any doubt, with the utmost indignation against the decision as an infringement of their liberty to contract with reference to their land and the minerals beneath its surface as they pleased. In so doing, they would have been justified. If plaintiffs should desire to contract for an immediate exploration, they must have that right; and, if they should desire to give an oil or gas company five years in which to sink a well, upon a consideration satisfactory

to themselves, and as the result of negotiations free from imposition and fraud, they must have that right. But, having deliberately made a contract of the latter description, they have no right to call upon a court to declare that it is of the other kind merely because generally it might seem to be better for farmers not to incumber their lands with mineral leases, giving a long time for exploration, or because generally such leases do contemplate that forfeiture shall follow a failure to explore at once."

We see no want of mutuality in the terms of the lease. Taken as a whole, it is such a contract as parties may properly make. We do not think the district court erred in sustaining the demurrer, and the judgment is affirmed. All the Justices concurring.

In view of the other provisions of the prohibitory law, the section thereof which forbids the giving of intoxicating liquor to minors must be construed to have reference only to gifts properly so called, and not to sales, and therefore a conviction upon an information drawn under that section cannot be sustained by proof that the defendant sold intoxicating liquor to a minor.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 29, Intoxicating Liquors, §§ 171, 269.] (Syllabus by the Court.)

Appeal from District Court, Allen County; Oscar Foust, Judge.

Bob Fletcher was convicted of giving liquor to a minor, and appeals. 'Reversed.

Ewing, Gard & Gard, for appellant. C. C. Coleman and Burton E. Clifford, for the State.

MASON, J. Bob Fletcher was convicted upon a charge of having illegally given intoxicating liquor to a minor, and appeals.

At the trial it was developed that the transaction complained of was a sale, and the question is therefore presented whether. under such a charge, a conviction can be had upon proof that the defendant sold liquor to a minor. The statute reads (Gen. St. 1901, § 2481): "The treating or giving of any intoxicating liquors to any minor by any person other than the father, mother, or guardian of such minor, or a physician for medical purposes, shall be unlawful; and any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be punished therefor as provided in the last preceding section of this act for unlawfully selling intoxicating liquors." The state relies largely upon the authority of Commonwealth v. Davis, 12 Bush (Ky.) 240. That was a prosecution under a statute making it an offense to "sell,

lend or give" intoxicating liquor to a minor. The evidence showed that the defendant, with money a part of which had been supplied by a minor for the purpose, bought whisky, some of which he later gave to the minor, who drank it. The trial court took the view that there was no gift, because the liquor was the joint property of the defendant and the minor, and therefore discharged the jury and dismissed the indictment. On appeal the reviewing court reversed the judgment, holding that to carry out the purpose of the law the word "give" should be construed to mean "furnish" or "supply." Upon substantially the same statute and facts a contrary conclusion was reached in Young v. State, 58 Ala. 358. In Kentucky, as mentioned in the opinion referred to, the rule that penal statutes are to be strictly construed has been abrogated, whereas in this state it is still in force. State v. Chapman, 33 Kan. 134, 5 Pac. 768; State v. Sutton, 53 Kan. 318, 36 Pac. 716. These considerations impair the authority of the Kentucky decision; but, even if it is given full force, it does not necessarily control the present case.

The question here is whether the word "giving," as used in the statute quoted, was intended to include the furnishing of liquor for compensation. In Parkinson v. State, 14 Md. 184, 74 Am. Dec. 522, it was held (the Chief Justice dissenting) that a title referring in terms only to the sale of liquor to certain classes was broad enough to cover a prohibition against its being given to them. It was distinctly shown in the opinion, however, that the words "give" and "sell" were not regarded as covering the same ground; the writer saying: "In 'their ordinary and familiar signification,' 'in their accepted and known sense,' the words 'sell' and 'give' have not the same meaning, but are commonly used to express different modes of transferring the right of property from one person to another; a sale meaning a transfer for a valuable consideration, and a gift signifying a gratuitous transfer without any equivalent." This language is quoted with approval in Holley v. State, 14 Tex. App. 505; the court adding: "No subtlety of reasoning or ingenuity of argument can, in common acceptation, make the two words mean the same thing." In Humpeler v. People, 92 Ill. 400, a conviction under a statute making it an offense to "sell or give" liquor to a minor, or to a person in the habit of getting intoxicated, was set aside for reasons thus stated: "While there is abundance of proof to sustain the finding as to the sale of intoxicating liquor, there is no proof whatever in the record that the defendant gave intoxicating liquor, as charged in the third and sixth counts of the indictment. The verdict and judgment, therefore, as to these counts, were erroneous. It was a violation of the statute to either sell or give intoxicat

ing liquor to a person in the habit of getting intoxicated; but an indictment for selling would not be sustained by proof that liquor had been given to a person in the habit of getting intoxicated, nor would an indictment for giving liquor be sustained by proof of a sale. A sale and a gift, under the statute, are distinct and separate offenses, and the proof of one will not sustain a charge for the other." Granting that a statutory prohibition against the giving of liquor to minors might under some circumstances be construed to include a sale, or even that, standing alone, it should be given that construction; its meaning in the present case must be determined by the context. The section already quoted in full was passed as a portion of an act, a large part of which was devoted to defining what sales of liquor were legal and what illegal. If it had been the purpose of the Legislature that the section in question should apply to sales made to minors, it is reasonable to suppose that the word "selling" would have been coupled with "giving." The section immediately preceding this provides that whenever a relative of any person shall notify a druggist that such person uses intoxicating liquors as a beverage, "and shall forbid said druggist from selling, bartering or giving to such person any intoxicating liquor, it shall be unlawful for any such druggist, after such notice, to let such person have any intoxicating liquors upon any terms or conditions whatever." The occurrence of such explicit language so near to it suggests the unlikelihood that the one word "giving" was intended to have the same sweeping effect as the entire phrase italicised. The use of the word "treating" in the same connection also indicates that the mind of the draftsman of the bill was directed toward the idea expressed by "giving" in its usual and specific sense. These considerations convince us that the Legislature purposely omitted to include sales to minors among the acts denounced by this section. The reason for such course was obvious. It was not that selling liquors to immature persons was regarded as less pernicious than giving it to them outright, but because it was conceived that the whole subject of illegal sales had been covered by other provisions of the law. True, these other provisions as they then existed (when section 2481, Gen. St. 1901, was enacted, in 1885) contained no prohibition against the sale of liquor to minors; but such a prohibition was added to one of them by amend ment in 1887 (see Gen. St. 1901, § 2489), an addition which points to a legislative inter pretation that the enactment of 1885 did not cover such sales.

It follows, from the view stated, that the judgment must be reversed. All the Justices concurring.

(74 Kan. 896) STATE v. FOWLER. SAME v. McCARLEY. (Supreme Court of Kansas. Nov. 10, 1906.) Appeals from District Court, Allen County; Oscar Foust, Judge.

Howard Fowler and Cliff McCarley were convicted of giving liquor to a minor, and appeal. Reversed.

Chris Ritter, for appellants. C. C. Coleman and Burton E. Clifford, for the State.

PER CURIAM. In each of these cases the defendant was charged by information with giving intoxicating liquor to a minor. There was no evidence to sustain the charge of giving intoxicating liquor to a minor, but there was evidence, over the objection and exception of the defendant, of sales by the defendant of intoxicating liquor to the minor named in the information, and the defendant in each case was found guilty, his motion for new trial was overruled, and he was sentenced.

Each of these cases is reversed on the authority of State of Kansas v. Bob Fletcher (just decided) 87 Pac. 729.

JOHNSTON, C. J. This was an action to foreclose a mortgage. On December 1, 1887, C. J. McCray and wife gave a promissory note for $800 to Samuel G. Miller, due five years after date, and to secure its payment executed a mortgage on a quarter section of land in Clark county. On June 30, 1902, C. J. Carson purchased the note and mortgage for his sister, J. C. Ford, as a gift, taking a written assignment of each directly to her. The mortgage was delivered with the assignment, but there was no manual delivery of the note, as it appears to have been lost. Carson placed the mortgage and assignments in the hands of Ford's attorney for foreclosure, but she was not aware that she had become the owner of the instruments until

after the suit was brought, and, upon learning of the gift and action, she prosecuted the proceeding to a conclusion. The petition was in the ordinary form for foreclosure, alleging the execution of the note, the sale and indorsement of the same from Miller to Ford before maturity, and a copy of it with the assignment was set forth. Default was made by the McCrays on the note, but J. O. Bare and wife, who had been named as defendants, answered with a general denial; and, further, that the plaintiff was not the real party in interest; that the cause of action was barred by the statute of limitations, and that they had acquired the land by a tax deed executed by the county of Clark. Ford replied, denying generally the allegations of the answer, and also stating that the tax deed to Bare was void because of several defects in the tax proceedings. On the issues so formed, the jury found in favor of the plaintiff, and the mortgage was adjudged to be a valid lien on the land, the defendant's tax deed was held to be illegal, and set aside, but the taxes paid by the Bares, with the accumulated interest, was declared to be a lien upon the land. The Bares complain and insist that the evidence was insufficient to establish a cause of action against them, and that the demurrer to the evidence should have been sustained.

The claim of insufficiency is based mainly on the fact that the plaintiff pleaded that she was the owner and holder of a promissory note, and only proved the assignment of a note previously lost. It is argued that an averment of the execution and existence of a note is not sustained by proof of a lost note. The execution of the note, which was set forth in the petition, was admitted by the defendants. The mortgage was assigned and delivered to the assignee, and it contained a copy of the note which corresponded with the copy set out in the petition, and the statute provides that "the assignment of any mortgage as herein provided shall carry with it the debt secured." Gen. St. 1901, § 4238. There was abundant testimony that Ford was the owner of the note, but the question remains whether there could be a recovery in the absence of an averment that the note had been lost. The loss of the note is no part of the cause of action, and a statement of the loss is therefore not an essential allegation. The reason that loss or destruction of a note or other instrument is alleged in certain cases is to excuse the failure to give a copy of it in the pleadings or the failure to make profert of the instrument where it is required. In Sargeant v. Railroad Co., 32 Ohio St. 449, the Supreme Court of Ohio held that "an action may be sustained on a destroyed promissory note, and where a copy of the note is given with or made part of the petition the destruction of the note need not be averred in the petition." The same view is taken by the