
    Zeph Meek v. James W. Preston.
    Oil Leases — Surrender—Non-payment of Penalty Provided.
    Where an oil lease, providing for a payment of $50.00 per year for not commencing work, thereunder, this penalty is lost by a subsequent surrender and acceptance of the lease.
    Same — Rents.
    Such a payment, provided for, cannot be held as an amount due for rent, but merely a penalty for non-performance.
    APPEAL FROM JOHNSON CIRCUIT COURT.
    September 23, 1869.
   Opinion of the Court by

Judge Williams:

Appellee sued appellant for the penalty of fifty dollars each year for three years on a lease of oil privileges for not commencing the work within one year from its date, December 3, 1864, but by agreement the lease was surrendered in March 1866, and accepted by the appellee ‘be remarking at the time that the defendant ought to have paid him something, but according to the -agreement be would have to take the lease.” This surrender was made by the defendants agent and the only witness who testified in the case. The defendant seems never to have taken possession or in any manner entered upon the development of the oil and mineral resources of the land. The fifty dollars to be paid annually for the delay in not commencing the work was not for rents but by way of penalty and the evidence indicates that it was settled by the agreement to surrender the lease, but the judge to whom the case was referred erroneously gave judgment for sixty-two dollars and fifty cents. Wherefore it is reversed with directions for further proceedings consistent herewith.

Dawson, for appellant.  