¶1(dissenting):
¶2I cannot concur in the opinion of a majority of the Court handed down in this case, for the following reasons: William H. Roberts leased to W. D. Boyle, by separate leases, two tracts of land in Tyler County, W. Va., for the purpose and with the exclusive right of drilling for petroleum and gas, both leases being dated Juty 5, 1S92, one of which tracts contained one hundred and twelve acres, and the other one hundred acres. About Aug-ust 3, 1892, these leases were assigned to M. A. and D. Bettman, which assignments were signed by W. D. Boyle and William H. Roberts. The leases were thus transferred to said M. A. and D. Bettman, with all their covenants unchanged in any respect, except that the Bettmans were to pay the rentals instead of W. D. Boyle, which rents were to be paid at McCormick & Morrison’s store, in Tyler County; and in these assignments by said Roberts and Boyle it was stated that a failure to pay these rentals for ten days for any month after they became due would render the said leases null and void, and they should be surrendered by Bettman & Bettman to Roberts, and the rentals should cease. No oil or gas was found on these tracts, and Bettman & Bett-man notified Roberts that, unless he would reduce the rentals, they would surrender the property. This notice was given the latter part of November, 1892, and Roberts *151replied, “All right; when you stop paying the rentals that ends the lease.” By the terms of said lease, Bettman & Bettman were to pay one hundred dollars per month in advance until a well was completed, and it was positively agreed between Bettman & Bettman and Roberts that, when the rent was not paid when due, that fact of itself ended the leases, and neither should have the right of action against the other. On the 2d of October, 1893, said Roberts brought an action of covenant upon said two leases against Bettman & Bettman, partners, etc., making proferí of the same, and purporting to set out the covenants and conditions therein contained in his declaration, claiming- that eighteen hundred dollars of the rent became due and was owing to the plaintiff from said defendants, and still unpaid, contrary to the covenants in the two indentures contained, to the damage of the plaintiff three thousand dollars. On April 12,1894, the defendants, by counsel, craved oyer of the deeds described in the declaration, read to them, and demurred generally to the plaintiff’s declaration, in which demurrer plaintiff joined. Demurrer was overruled, and thereupon the defendants pleaded covenants not broken, conditions performed, and payment, to which the plaintiff replied generally, and issue was joined thereon. The action of the court in overruling defendants’ demurrer to said declaration is assigned as error. Was this assignment well taken, and did the court err in overruling said demurrer?
¶3By craving oyer of the leases sued upon, they became part of the declaration, and may be examined; and, when said leases are read and compared with the averments of the declaration as to the covenant they contained, it is perceived that in declaring upon said leases the pleader omitted in each instance, after the words, “and a failure to complete such wells or to pay said rental when due or within ten days thereafter, shall render the lease null and void,” to insert the words, “and can only be renewed by mutual consent, and no right of action shall after such failure accrue to either party on account of any covenant herein contained;” which covenant is found in each of said leases made profert of in the declaration.
¶4Let us next inquire what the effect is of craving oyer of *152the leases sued on, and we find in the case of Jarrett's Adm'rs v. Jarrett, 7 Leigh, 93, it was held that if, in an action on a deed, plaintiff makes profert of the deed in his declaration, and defendant takes oyer of it, the deed is thereby made part of the declaration, and defendant cannot object to the deed as evidence on the trial, on the ground of variance. When, however, these leases were, by craving oyer, made part of declaration, can we say that the court acted properly in overruling the demurrer to the declaration as then presented, the lease being made part thereof? The declaration avers that the defendants failed to complete a well on said leases, and also to pay the rental when due, or within ten days, which would operate to render such leases null and void, and place them in such condition that they could only be renewed by mutual consent; and it was further covenanted that no right of action should, after such failure, accrue to either party on account of the breach of any covenants therein contained. It cannot be successfully controverted that this action was brought in direct opposition to this covenant. It cannot be said that this' covenant was intended solely for the benefit of the lessor, because the express language of the covenant is that no right of action after such failure should accrue to either party on account of the breach of the covenants therein contained, and this covenant is j ust as obligatory upon.the parties as any other it contains. Beach on Modern Contracts (volume.l, § 151), in speaking of sealed instruments and consideration, says: “The statutes merely make it necessary for the courts to gather the intention of the parties entirely from the instrument. They substitute the intention of the parties for the form of the instrument.” And in section 473 the author says: “By release of all actions, actions real, personal or mixed are discharged, and so are all causes of action.” And in section 482 he says: “A bond or covenant not to sue is equivalent to a release.” And at section 735, speaking of the construction of deeds, says: “The construction of deeds follows the rules of law in regard to the construction of other contracts in writing. A deed of conveyance, like all other instruments, will be read by the court in the sense of the meaning of the parties. The .intention will prevail *153wherever such intention is unmistakably manifested, having-regard to all parts of the instrument. … In determining the meaning of the parties, recourse must be had to the whole instrument. … The intention as gathered from the whole instrument must prevail.” Parsons on Contracts (volume 2, p. 622), speaking of the construction of contracts, says: “So, for the same reason, all the parts of the contract will be construed in such a way as to give force and validity to them.” In the case of Barber v. Insurance Co., 16 W. Va., 658, this Court held (third point of sylabus) that in the construction of contracts the provisions thereof shall be taken into consideration, and reconciled, if possible, so that the true intent of the parties to the contract may be ascertained.
¶5The plain and manifest intention of the parties to these leases was to avoid litigation. The plaintiff having made profert of said leases, and the defendants, by craving oyer of the same, having made them part of the declaration, we must look to the entire deeds lor the contract which is sought to be enforced; and the intention of the parties, as it is disclosed by the deeds, constitutes the contract; and this, when ascertained by proper construction of the contract, will be enforced by the court. Looking, then, at these leases as presented by the pleading-s, can'we discover any right thereby conferred upon the plaintiff to recover rent after failure on the part of the defendants to pay the same when due? On the contrary, all said in regard to payment of rental is as follows: “The said rental shall be deposited to the credit of the party of the first part at-, or paid direct to said first party; and a failure to complete such well, or to pay said rental when due, or within ten days thereafter, shall render this lease null and void, and can only be renewed by mutual consent, and no rig-ht of action shall after such failure accrue to either party on account of the breach of any covenants herein contained.” It was also agreed that the party of the second-part should pay to the first party one hundred dollars per month in advance until a well was completed, from the date of said leases on each tract of land; and, further, that the party of the second part should have the right at any time to surrender said leases to the party of the first part, and thereafter should be fully discharged.
¶6*154Now, even if it be true that the defendants suffered rent to accrue against them by their failure to surrender said leases promptly, yet it was expressly provided that a failure to pay said rental for ten days for any one month after it had become due, should make said indentures null and void, said rentals should cease, and the leases be surrendered. By the terms of the leases, the surrender of them was not a condition precedent to the ceasing of the rent, as stated in the declaration, but it was expressly provided, that, upon failure to pay the rent when due, or within ten days, the leases should be null and void, and could only be renewed by mutual consent, and no right of action should, after such failure, accrue to either party on account of the breach of any of the covenants therein contained; yet the plaintiff, by his declaration, claims rental for nine months after the alleged failure to pay. My conclusion, therefore, is that the plaintiff, on the face of his declaration, has shown that he is not entitled to sustain this action, and the court erred in overruling the defendants’ demurrer, and judgment should have been rendered for the defendants on the demurrer.
¶7Affirmed.