Appeal, No. 95, Oct. T., 1901, by plaintiff, from decree of C. P. Greene Co., No. 40, in Equity, dismissing bill in equity in case of E. M. Sayers v. Spencer B. Kent.

Bill in equity to cancel an oil and gas lease.

Craweord, P. J., filed the following opinion:

The bill in this case prays for the cancellation and surrender of a certain oil and gas lease executed by the plaintiff and delivered to the defendant, the plaintiff alleging that the same has been forfeited by noncompliance with its terms in the payment of the first quarterly rental due. From the bill, answer and evidence submitted, we find the following facts:

1. On January 18,1900, the plaintiff, E. M. Sayers, executed and delivered to S. B. Kent, defendant, a lease for the purpose of drilling or operating for oil, gas or water, on a tract of land situate in Franklin township, Greene county, Pa., containing 209 acres more or less, which said lease contains the following stipulation: “ In case no well is commenced in thirty days from this date then this grant shall immediately become null and void as to both parties. Provided that second party may prevent such forfeiture from quarter to quarter and no longer by paying to the first party in advance fifty-two and twenty-five hundredths (52.25) dollars at Farmers & Drovers Bank until said well is commenced. All moneys that may become due under this grant payable to E. M. Sayers aforestated.” This lease was recorded May 8, 1900, in deed book No. 4, page 221, in recorder’s office of Greene county, Pa.

2. On February 12,1900, the said S. B. Kent, defendant, not having commenced a well on said premises, called at the Farmers and Drovers National Bank of Waynesburg, Pa., and was informed by Mr. Rhinehart, the cashier, that Mr. Sayers, the president of the bank, was not in town, but had taken the 6 o’clock train that morning for Phillippi, West Virginia, and would not return for some days. Kent then told the officers of the bank present that he had come to pay Mr. Sayers a rental of 152.25 that would be due on the following day on the oil lease received from Mr. Sayers.

3. Kent presented a check drawn by himself on the Peoples National Bank of Waynesburg, payable to the order of Mr. Sayers for the amount of rental due, which amount he wished placed to the credit of Mr. Sayers in the bank. Mr. Sayers not being present, or in town on that day to receive the rental due, Kent left the check with Mr. Rhinehart, the cashier of the Farmers & Drovers Bank, who informed him that it would be accepted as cash and placed to the individual account of E. M. Sayers.

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