Le Rosen v. North Central Texas Oil Co. , 169 La. 973 ( 1930 )

ROGERS, J.

The defendant company seeks the annulment of a judgment of the Court of Appeal for the Second Circuit, affirming a judgment of the district court of the parish of Caddo, recognizing the expiration of an oil and gas lease, with reservation of plaintiff’s right to sue for damages and attorney’s fees.

On December 21, 1925, plaintiff, a married man, executed an oil and gas lease covering a certain tract of land in Caddo parish. The lessee was one A. D. Madding, who subsequently assigned the lease to the defendant company.

The lease, which is known in some states as an “unless lease,” provides, inter alia, as follows, viz.:

“If no well be commenced on said land on or before the 21st day of December, 1926, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the American National Bank at Shreveport, Louisiana, ‘the sum of Forty ($40.00) Dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve (12) months from said date.”

The lessee failed to drill any well on the leased premises within the year stipulated, but on November 27, 1926, deposited in the American National Bank, at Shreveport, the sum of $40 to the joint credit of plaintiff and his wife. Plaintiff, was notified in the latter part of November, 1926, both by defendant and by the bank, that the deposit had been made.

This suit was filed in February, 1927, for the cancellation of the lease on the ground of nonpayment of the rent.

There is no dispute as to the facts. But the defendant interposes a twofold defense to plaintiff’s action, namely, that the deposit was correctly made, and that defendant was estopped from demanding the cancellation of the lease.

Under the first ground of defense, the defendant contends that the lease was entered into by plaintiff on behalf of the marital community and that the stipulation for the payment of the rent created an obligation in favor of the community. Hence the deposit was made in accordance with the terms of the contract.

The fact that the tract of land covered by the lease may be community property does not alter the lessee’s contractual obligations. The marital community, or conjugal partnership, is a legal entity distinct from the persons composing it. The lease was granted by plaintiff as lessor and expressly accepted from him in that capacity by defendant’s assignor.

It is true that, under the'law, the plaintiff is vested with control of the community property, but that fact did not authorize the defendant to make the deposit to the joint credit of the husband and the wife, when its contractual obligation required it to make the deposit to the credit of the husband alone.

Under the law a married woman is authorized to deposit money or other funds in bank and to withdraw the same without the authorization or assistance of her husband. Act No. 63 of 1896. The bank, under the terms of the deposit, was obligated to account for the fund to plaintiff’s wife as well as to plaintiff. Hence the money deposited was not subject to the unconditional control and order of the lessor.

We fail to see any room for the application of the plea of estoppel, the second ground of defense. It was defendant’s duty •to comply with the agreement in order to obtain its enforcement" Defendant could not omit to comply with its contract, relying upon notice from the plaintiff to enable it to supply the omission.

There is no suggestion that plaintiff did anything whatever to induce the defendant to make the deposit to the joint account of his wife and himself. Defendant was as well informed as plaintiff was of the condition under which its option could be extended. There was no legal duty resting upon plaintiff to advise defendant that it had failed to comply with the, condition'; its failure to do so not being in any wise attributable to plaintiff.

For the reasons assigned, the rule nisi herein issued is recalled, and the judgment of the Court of Appeal is affirmed.

O’NIELL, C. J., dissents and hands down reasons.