The opinion
ENGLISH, Judge,
(dissenting.)
I am unable to concur in the conclusions reached in the foregoing opinion for the following reasons: As I understand the question presented for our consideration, it is not whether a forfeiture of the lease on the part of E. M. Ilukill has occurred, but conceding that a forfeiture has occurred, how far a court of equity, under the circumstances of this case, would be warranted in relieving against such forfeiture. It is true that in the case of Guffey v. Hukill, which was an action of unlawful detainer, which came to this Court on writ of error and was decided on the 24th day of June, 1890, in which said Guffey and Murphy were claiming to be entitled to the possession of the thirty acres in the lease mentioned, this Court held in the second point of the syllabus :
“A lease for years for drilling for petroleum, oil and gas contains the following provision : ‘The parties of the second part covenant to commence operations for said purposes within nine months from and after the execution of this lease, or to thereafter pay to the party of the first part one dollar and thirty three and a third cents per month until work is commenced, the money to he deposited in the hands of John Kennedy for each and every month; and a failure on the part of said second parties to comply with either one or the other of the foregoing conditions shall work an absolute forfeiture of this lease,’ — and there is no covenant for re-entry, and there is failure to commence operations and to pay money in lieu thereof, and the lessor *468 leases to another person: Held, the first lease is thus avoided, and the second lease is a sufficient declaration of forfeiture without demand and re-entry, and that the second lessee may maintain unlawful detainer against the first lessee in .possession.”
This, however, was but the affirmance of a judgment at law, and under the strict rules of law a forfeiture was declared to have occurred; and the question presented is whether equity will relieve against said forfeitui’e under the circumstances of this case; and this question can not be regarded as res judicata by reason of the judgment in said unlawful detainer case, for the reason that this question was not then before the court upon this question of equitable relief, and neither David Wise nor liezin Calvert were parties to said action. ¡See, also, Jenkins v. Harrison, 66 Ala. 345 , where it is held that “a judgment in an action at law against the validity of an instrument as a deed for want of delivery does not preclude a resort to equity to enforce it as a contract to convey.”
Taylor, in his valuable work on Landlord and Tenant, (volume 2, § 495) says: “ When a tenant has forfeited his lease by a breach of covenant for the payment of rents, courts both of law and equity consider the clause of reentry to be mainly inserted for the landlord’s security, and will interfere in the tenant’s behalf) although all the formalities of a common-law demand may have been complied with, upon his satisfying the rent due, and making eompen-'satiou for any damages which the landlord may have sustained in consequence of this omission; and in general a court of equity will relieve the tenant from a forfeiture where the breach is the result of accident or mistake, or where it. has been incurred by neglecting to pay a sum of money, the interest upon which can be calculated with certainty, and the landlord thereby compensated for the inconvenience he may have sustained by the tenant’s withholding payment.”
In the case of Nelson v. Carrington, 4 Munf. 332 , seventh point of syllabus, the Court held as follows : “Equity is not fond of taking advantage of forfeiture arising merely from lapse of time specified; on the contrary, it is the con *469 stant course to relieve against such forfeitures on making adequate compensation.”
And Pomeroy, in liis Equity Jurisprudence (volume 1, § 458) under the head of “Forfeitures Arising from Covenants in Leases,” says : “Where a lease contains a condition that the lessor may re-entér and put an end to the lessee’s estate, or even that the lease shall be void upon the lessee’s failure to pay the rent at the time specified, it is well settled that a court of equity will relieve the lessee, and si-t aside a forfeiture incurred by his breach of the condition, whether the lessor has or has not entered and dispossessed the tenant. This rule is based upon the notion that such condition and forfeiture are intended merely as^ security for the payment of money.”
And in note 1 he says: “By the original doctrine of equity the relief might be granted within any reasonable time after a breach, and even after an ejectment.”
The record in this case discloses no privity of contract between E. M. Hukill and Guffey and Murphy. As the assignee of William Hays, the lessee of David Wise, he became the lessee of said David Wise and as such took upon himself the covenants contained in the lease, and Wise alone had the right to insist upon a forfeiture of said lease upon a failure of Hukill to comply with its conditions. It is true that said Wise subsequently leased said thirty acres of land to Bezin Calvert, who assigned the same to Ida C. and Vinuie J. Calvert, and that they assigned said lease to said Guffey and Murphy, hut said Guffey and Murphy thereby acquired no right to insist upon or enforce the forfeiture of the lease on the same premises held by E. M. Ilukill, as they were not the assignees of the Hukill lease, but had accepted a lease indirectly from said Wise on the-same property, containing entirely different terms and conditions; and, even if they had been assignees of the same lease, we find in 12 Am. & Eng. Enc. Law, p. 758m, § 4, it is said :
“The right of forfeiture is waived by the landlord by acts on his part showing au intention to abandon the right. Where a right to declare the lease forfeited for the nonpayment of the rent has accrued, the acceptance of a -year’s *470 rent in advance thereafter is a waiver of the forfeiture and in such case an assignee of tlie lessor has no better right than the lessor.”
In 8 Am. & Eng. Ene. Law, p. 447, note 6, it is said such forfeiture may bo waived by any act of the landlord affirming the existenee of the lease, and recognizingtlie lessee as tenant after knowledge of the forfeiture. Crawford v. Waters, 46 How. Pr. 210 ; Carroll v. Insurance Co., 10 Abb. Pr. (N. S.) 166; Bleecker v. Smith, 13 Wend. 530 ; Ireland v. Nichols, 46 N. Y. 413 .
In the case of Watson v. Fletcher, 49 Ill. 498 , it was held: “Where the right had accrued to declare a lease forfeited for nonpayment of taxes which the lessee had covenanted to pay, and thereafter the lessor accepted from-the lessee a year’s rent in advance, and shortly after assigned the lease to another, it was held that these acts of the lessor amounted to a waiver of the forfeiture. Hor in such a casé does the assignee of the lessor acquire any right to declare a forfeiture ; that right having been waived the acts of the assignor.”
Again, it is alleged in the bill, and not denied in the answer, that at the time said second lease was executed, and before said David Wise would execute the same, and as an inducement to said David Wise to execute the same, the said Reziu Calvert then and there agreed that if said Wise would execute said lease to him, he, the said Calvert, would take the same subject to the said Hays lease (under which, said Ilnkill claims) and that, if said Hays or his assignee claimed under said lease, he, the said Rezin Calvert, would return to said Wise said second lease; and in addition to this, said Wise, in his deposition, states that he informed said' Calvert at different times of the existenee of the Hu-. kill or Hays lease, and that by executing said second lease it was not his intention to declare said Hays lease forfeited, and that he would not have executed said lease to said Calvert if he had not promised to return the same to him, if the parties claiming the Hays lease claimed it to be valid and binding; and he also states that said IIukilL had purchased his royalty in said Hays lease, and that said Hukill has fully complied with the terms of said lease.
*471 It is also proven by tlie wife of said Wise that Calvert was teasing her husband for weeks to get the lease; — that she hoard her husband tell him of the existence of the IIu-kill lease, and also that he was afraid said Calvert would get him into trouble, and for that reason he was afraid to lease said thirty acres to him, and she heard said Calvert tell her husband that he would give up said lease if Mr. Hays claimed bis lease; that she told Calvert there was a lease ahead of his, and she was afraid he would get her husband into trouble; and he replied there was not a bit of danger in leasing to him; that he, Calvei-t, would give up his lease, if they came on with the Hays lease. And the same thing, in substance, is shown by the deposition of William M. Lawless.
This evidence appears to me to be entirely competent. It only shows that the-second lease was obtained by Calvert after great importunity, but with full notice of the existence of the Ilukill lease, and also with notice of the fact that said Wise, so far from intending to treat said Hulcill lease as forfeited, considered the same to be in full force and effect, and for that reason declined to execute the second lease, and would not have done so but for the assurance that Calvert would surrender said second lease if Ilu-kill came on to operate his lease.
In the case of Sweet v. Parker, 22 N. J. Eq. 453, it was held : “In a suit to have a deed absolute on its face decreed to be a mortgage, parol evidence is admissible, not to establish an agreement to reconvey, which equity will enforce, but to establish the true nature of the instrument by showing the object for which it was made.”
So Wharton, in the Law of Evidence (section 1057) says: “A deed, whether of realty or personalty, is subject to the rules we have already laid down in reference to contracts generally — that a conveyance absolute on its face may be shown to be a mortgage or to be in trust.”
This evidence was not an attempt to vary or add to the Calvert lease, and, although it was an absolute lease upon its face, it was shown by said evidence to have been delivered subject to the condition that it was to be surrendered, if Ilukill insisted on his lease and complied with its terms ; *472 and besides, as before stated, Wise was the only person who could insist on the forfeiture of the Ilukill lease. Neither Calvert nor Guffey and Murphy were the landlords of Ilukill.
We find that Washburn on Real Property (volume 1, p. 477) says: “But a covenantor condition already broken can not be assigned so as to be taken advantage of or enforced by an assignee in bis own name,” and again, the same author, at page 485, says: “The English and American law, as well as courts of law and equity, substantially agree in giving relief if the arrears of rent, interest and costs are paid or tendered.”
In the case of Schaupp v. Hukill, 34 W. Va. 375 ( 12 S. E. Rep. 501 ) this Court held that the second lease, on which there was an indorsement as follows : “This lease to be taken subject to the Ilukill lease” — was not an “unequivocal declaration of forfeiture of the first lease ;” and why should such endorsement be any more effective than the verbal declaration of Wise, which is abundautly proven to have been made at the time the Calvert lease was delivered ?
In the case of Thomas v. Hukill, 34 W. Va. 397 ( 12 S. E. Rep. 522 ) ITolt, J.,in delivering the opinion of the Court, says:
“The execution of the second lease can not be taken as conclusive evidence of a purpose to declare the first one forfeited when its own terms show that such is not the purpose. But, if silent on the subject, as this one is, can it not be shown that the lessor executed and delivered the new lease to the lessee himself, on condition that it was to be given back if the first lessee objected. This Court, in the case of Stuart v. Livesay, 4 W. Va. 45 , and in Newlin v. Beard, 6 W. Va. 110 , following the case of Ward v. Churn, 18 Gratt. 812 , would seem to hold such conditions valid when made known to the obligee. The admissibility of this evidence is also rested upon the doctrine of the cases of Lawrence v. Du Bois, 16 W. Va. 443 , Davis v. Demming, 12 W. Va. 246 , Vangilder v. Hoffman, 22 W. Va. 1 , and cases cited. ‘The efficacy of the parol evidence is not to establish an agreement to reconvey, the specific performance of which the *473 courts will enforce, but to establish the true, nature aud effect of the instrument, by showing the object with which it is made.’ Sweet v. Parker, 22 N. J. Eq. 457. In this case it is held it is not to add to or take from the language of the lease, or to impair its legal effect, but to rebut the inference of a collateral purpose to declare a forfeiture, which otherwise “would be drawn. But I pass from this point, as, in-my view, it has no important bearing.”
I quote this language from said opinion because it met with my hearty approval when it was handed down, and I have seen no good reason after examining many authori-ites to change my views upon the point; and, while it may have had no important bearing on the case of Thomas v. Hukill, it should have a controlling influence in arriving at a proper conclusion in the ease at bar. Calvert surely took this lease with .full notice of the existence of the Ilukill lease, and of the fact that Wise did not consider it forfeited. There can be no question that compensation could be made, and therefore equity will relieve. Time was-not of the essence of the contract (Jackson v. Ligon, 3 Leigh, 160 ); and in a note to the case of Smith v. Mariner, 68 Am. Dec. 85 , we And it said:
“Forfeitures are not favored in equity, and courts lean strongly in favor of granting relief from such -a harsh measure,for the termination of contracts. .Courts of equity will ordinarily grant relief against a forfeiture incurred by nonperformance of an agreement for the payment of money simply by setting it aside at the instance of the defaulting party, or in such other manner as may be necessary, on payment of the debt and interest and costs, unless the party has by inequitable conduct debarred himself from any relief in equity; Bowser v. Colby, 1 Hare 128; Gregory v. Wilson, 9 Hare 683; Wadman v. Calcraft, 10 Ves. 68; Hill v. Barclay, 16 Ves. 405;” and numerous other cases.
And on the next page, speaking of forfeitures of leases for breach of covenants therein, it is said: “Where the forfeiture is incurred by reason of breach' of a covenant for re-entry after default in the payment of rent, relief will be granted, aud the forfeiture set aside, upon payment of the rent; and this, whether the lessor has or has not dispos *474 sessed the tenant. * * * Such covenants are intended merely as a security for the payment of money, and, the money being paid, the purpose of the forfeiture is gone,” eta.
If the forfeiture in this instance would be relieved against, as between Wise and Ilukill, it could not be taken advantage of by Calvert or his assignees.
Again, the questions involved in this case can not be regarded as res judicata as to Wise and Hays, for the reason that they were not parties to the action of unlawful de-tainer, and Hukill paid Hays three hundred dollars for his lease. In the case of Renick v. Ludington, 20 W. Va. 512 (point 8 of syllabus) this Court held that the law of res judicata must yield in such case to the principle that a person who' is not a party and has neither been heard nor had an opportunity of being heard, can not be bound by a decree prejudicial to his interest; and Green, J., on page 555, says
“But, however necessary it is that this doctrine shall be upheld with a firm hand, yet. it can not be permitted to overthrow or destroy another fundamental principle still more fundamental and axiomatic, and of which Judge CiiristiaN, in his opinion in Underwood v. McVeigh, 28 Gratt. 418 , thus speaks: ‘It lies at the very foundation of justice that every person who is to be affected by an adjudication should have an opportunity of being heard in his defence, both in repelling the matters of fact and upon matters of law.’ ”
And in Western Min. & Manuf’g Co. v. Virginia Cannel Coal Co., 10 W. Va. 250 (second point of Syllabus) it was held that to make a fact res judiada “it must have been directly and n.ot collaterally in issue in the former suit, and there decided.” Other cases might be cited tending to the same conclusion, but I deem these to be sufficient to warrant me in differing from the opinion in which a majority of the Court concurred.
Modified and Affirmed.