
    No. 2939
    Second Circuit
    BROWN ET AL. v. WARE ET AL.
    (July 1, 1929. Opinion and Decree.)
    John B. Files, of Shreveport, attorney for plaintiffs, appellants.
    Bryan E. Bush, of Shreveport, attorney for curator ad hoc for E. M. Blake, appellee.
    Barksdale, Bullock, Warren, Clark & Van Hook, of Shreveport, attorneys for Hamilton Ivins, defendant, appellee.
   REYNOLDS, J.

Plaintiffs, H. B. Brown and Bettie Brown Wilkinson, sued T. H. Ware and E. M. Blake to annul a lease granted by them to the former of S.% of S.E.1^ of section 21 township 22 north, range 15 west in Caddo parish, Louisiana, dated March 16, 1920, and recorded in book 146 of the conveyance records of said parish at page 648, for exploitation for oil and gas, and for $1250 as damages alleged to have been sustained by them by reason of the defendants’ failure to comply with the terms of the lease.

They alleged that T. H. Ware had sold the lease and assigned to E. M. Blake, a non-resident of the state of Louisiana and resident of the state of Iowa, all his rights thereunder; and that on December 5, 1925, Blake had assigned to Hamilton Ivins all of his rights under the lease insofar as it affected the S. E. % of S. E. % of section 21 township 22 north, range 15 west.

It is alleged, in substance, that neither Ware nor Blake had complied with the obligations imposed on the lessee.

Bryan E. Bush was duly appointed curator ad hoc for the non-resident defendant, E. M. Blake.

The curator ad hoc filed a plea that Hamilton Ivins was a necessary party defendant and that plaintiffs be required to make him a party and bring him into court as such or that their petition be dismissed.

Plaintiffs filed an amended petition in which Hamilton Ivins was made a party defendant.

In the amended petition plaintiffs declared that T. H. Ware was not a necessary party to the action and that he was made a party defendant through error and prayed that he be dismissed from the suit.

The curator ad hoc on behalf of E. M. Blake and Hamilton Ivins filed a joint answer, in effect a general denial.

On these issues the case was tried and there was judgment rejecting the plaintiffs’ demands and dismissing their suit and they have appealed.

OPINION.

The defendant Hamilton Ivins has filed in this court a written and signed declaration “that he has no further interest in the subject matter of this litigation and now abandons the defense heretofore made.”

No appearance was made in this court on behalf of the curator ad hoc or the nonresident defendant E. M. Blake nor has any brief been filed on behalf of either.

The defendant T. H. Ware having been dismissed from the suit on motion of plaintiff before trial in the lower court is not now before this court.

The evidence shows that by act dated March 16, 1920, recorded in book 146 of the conveyance records of Caddo parish, Louisiana, at page 648, plaintiff leased to T. H. Ware the S. % of S. E. % of section 21 township 22 north, range 15 west, in Caddo parish, Louisiana, for exploitation for oil and gas under certain terms and conditions not necessary to be mentioned.

It is alleged that T. H. Ware assigned the lease to E. M. Blake, and presumably he did, though we find no evidence of it in the record, as the evidence shows that by act dated December 5, 1925, recorded in conveyance book 220 of said conveyance records at page 781, E. M. Blake’ assigned the lease to Hamilton Ivins insofar as it affected the S. E. % of S. E. % of section 21, township 22 north, range 15 west.

The evidence shows that after some effort at exploitation for oil and gas all claimants of any of the rights granted by the lease abandoned the land and in effect surrendered the lease.

Therefore plaintiffs were entitled to judgment annulling the lease for this reason.

In our opinion the evidence does not warrant our rendering, a judgment in favor of the plaintiffs against any of the defendants for damages.

It is therefore ordered, adjudged, and decreed that the judgment appealed from be annulled, avoided and reversed, and it is now ordered, adjudged and decreed that there be judgment in favor of the plaintiffs H. B. Brown and Bettie Brown Wilkinson and against the defendants E. M. Blake and Hamilton Ivins cancelling and annulling the lease of the S. % of S. E. Vi of section 21, township 22 north, range 15 west in Caddo parish, Louisiana, granted by H. B. Brown and Bettie Brown Wilkinson to T. H. Ware by act dated March 16, 1920, and recorded in book 146 at page 648 of the conveyance records of said parish.

It is further ordered, adjudged, and decreed that defendants pay the costs of suit.  