We cannot pronounce this to be an error, in view of the nature of the lease, the true intention of the clause of forfeiture, and the want of any valuable interest acquired by the lessee, by performance. That time may be made of the essence of the contract by the express agreement of the parties has been so often decided that no citation of authority is necessary. In a case like this equity follows the law, and will enforce the covenant of forfeiture, as essential to do justice. It is true as a general statement that equity abhors a forfeiture; but this is when it works a loss that is contrary to equity, not when it works equity, and protects the land owner against the indifference and laches of the lessee, and prevents a great mischief, as in the case of such lessees. To perpetuate an oil lease forever by the payment of a monthly sum, as here, at the will or caprice of the lessee, would work great injustice. The covenant of forfeiture was not abrogated entirely, but only modified." In a subsequent case the same court used the following language:

"The agreement is plain that if the lessees failed to get oil in one well, they had a right to put down another, and as many more as they pleased, so long as they worked with diligence to success or abandonment, and equally plain that a cessation of thirty days would end their lease. They were not bound to do more than make a reasonable search for oil, but they were bound to operate or quit; they could not hold on and be idle. The contract did not require them to keep on drilling oil wells indefinitely and without cessation, for twenty years, nor for any indefinite length of time; neither did it entitle them, after the drilling of the well, to hold the lease for twenty years without working it. Even at the beginning of the lease, the duration. of the term was qualified by the words, unless forfeited.' The question seems to be, shall the concise and clear expression of the agreement of these parties, as written, give way to imaginary terms more favorable to the lessees? What is there in the circumstances calling for a fiction to defeat the covenant against delay in searching for or producing oil? . . If a well be productive, it is the interest of both lessor and lessee that it be

4 Brown v. Vandergrift, 80 Pa. St. 142.

continuously operated till its exhaustion, but, if dry, it is of no value. Holding on to a lease after ceasing search is often for purposes of speculation, the thing which a prudent land owner guards against. Forfeiture for non-development or delay, is essential to private and public interests in relation to the use and alienation of property. In such cases as this equity follows the law.

"In the rapid development and exhaustion of oil lands, cessation of work for nine months is a long period. Often in far less time the fluctuation in prices of land and leaseholds is very great. Perhaps in no other business is prompt performance of contracts so essential to the rights of the parties, or delay by one party likely to prove so injurious to the other." 5

$149. History of change in rule giving lessor exclusive right to declare a forfeiture.

"A distinction formerly prevailed between a proviso declaring that the lease should be void on a specified event, and a proviso enabling the lessor to determine it by re-entry. It was held that in the former case the lease became absolutely void on the event named, and was incapable of being restored by acceptance of rent or other act of intended confirmation; whilst in the latter some act, such as entry or claim, must have been performed by the lessor to manifest his intention to end the demise, which was voidable in the interval and consequently confirmable. The force of this distinction, it is said, in Taylor on Landlord and Tenant, has been almost, if not quite, abated by the modern decisions, which establish that the effect of a condition making a lease void upon a certain event, is to make it void at the option of the lessor only, in cases where the condition is intended for his benefit, and he actually avails himself of this privilege. *6 But it is entirely optional with the lessor whether he will avail himself of his right or not, although by the terms of the proviso the term is to cease or become void for the non-performance of the covenant; and if

307.

Munroe v. Armstrong, 96 Pa. St.

6

6 Sec. 492.

*62 Platt on Leases, 327.

8

the lessor does not avail himself of it the term will continue, for the lessee cannot elect that it shall cease or be void. 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.' 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. So Mr. Parsons, in his Law of Contracts," 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.' 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.10 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 11 the doctrine announced by Justice Sergeant, in Kenrick v. Smick, supra, was adhered to; and 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. Davis v. Moss, 12 the rule of the previous cases is again appa

7 Reid v. Parsons, 2 Chit. 247.

8 Wood's Landlord and Tenant, 1204.

9 Vol. I., p. 507.

In

10 Kenrick v. Smick, 7 W. and

S. 41.

11 37 Pa. 525.

12 38 Pa. 346.

rently 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 effect 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 is further relaxed in the very recent case of Galey v. Kellerman.13 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." 14

13 123 Pa. 491; 16 Atl. Rep. 474. 14 Wills v. Manufacturers' Natural Gas Co., 130 Pa. St. 222; 18

Atl. Rep. 721; 5 L. R. A. 603.

For Pennsylvania cases, see preceding section.

$150. Forfeiture favored by equity when it will promote justice.

A forfeiture is not always abhorred by the law, nor by equity, if its enforcement will promote justice. Speaking of one instance it was said by an appellate court: "In a case like this equity follows the law, and will enforce the covenant of forfeiture, as essential to do justice. It is true as a general statement that equity abhors a forfeiture; but this is when it works a loss that is contrary to equity, not when it works equity, and protects the land owner against the indifference and laches of the lessee, and prevents a great mischief, as in the case of such lessees." 15 The courts have gone so far as to allow a specified time within which to complete a well, and if not done within that time, the lease would be declared forfeited.10

$151. Lessor only can declare forfeiture.

A lessee cannot set up his own default, in order to terminate the lease or escape liability under its provisions. If he make default, not keeping the covenants of the lease, it is with the lessor to declare a forfeiture, or that it shall no longer be in force. If a mining lease provide that if the mine should not be worked the lease should be void, the word "void" means "voidable" at the election of the lessor; and it will be necessary for him to do some act evincing an intention to avoid it before it can be considered avoided or terminated." This is true even though a clause provides that a failure to do the thing covenanted to do "shall render this lease null and void,

15 Brown v. Vandergrift, 80 Pa. St. 142; Munroe v. Armstrong. 96 Pa. St. 307; Parish Fork Oil Co. v. Bridgewater Gas Co., 51 W. Va. 583; 42 S. E. Rep. 655; Barnsdall v. Boley, 119 Fed. Rep. 191.

16 Young V. Vandergrift, 30 Pittsb. L. J. (N. S.) 39. Reversed in Young v. Forest Oil Co., 194 Pa. St. 248; 30 Pittsb. L. J. (N. S.) 221; 45 Atl. Rep. 121. See Ohio Oil Co. v. Hurlbut, 7 Ohio Dec. 321; 14 Ohio C. C. 144, reversing 6 Ohio Dec. 305; Henne v. South Penn. Oil

Co. (W. Va.), 43 S. E. Rep. 147; Gadbury v. Ohio, etc., Gas Co. (Ind.), 67 N. E. Rep. 259.

17 Roberts v. Davey, 4 Barn. and Ad. 664; 1 Nev. and M. 443; Bryan v. Bancks, 4 Barn. and Ald. 401; Bettman v. Harness, 42 W. Va. 433; 26 S. E. Rep. 271; 36 L. R. A. 566; Westmoreland, etc., Gas Co. v. DeWitt, 130 Pa. St. 235; 18 Atl. Rep. 724; 5 L. R. A. 731; Smith v. Miller, 49 N. J. L. 521; 13 Atl. Rep. 39; Henne v. South Penn. Oil Co., 52 W. Va. -; 43 S. E. Rep. 147.