Rep. 217). Where an oil and gas lease is silent as to the number of wells to be drilled, there is an implied covenant that the lessee shall reasonably develop the lands by drilling and operating such number of wells as would be ordinarily required for the production of the oil contained in such lands and afford ordinary protection to the lines; but a breach of such implied covenant does not have the effect to forfeit the lease in whole or in part, nor is it a good cause for a court to declare such forfeiture, unless the lease in express terms provides that it shall be avoided or forfeited by the breach of such implied covenant. Under such a lease the remedy for a breach of the implied covenant, is an action for damages. Harris v. Ohio Oil Co., 57 O. St. 118 (48 N. E. Rep. 502).

v.

Sec. 573. Rights of a life tenant.

A life tenant has

no right to operate for oil or gas or to lease the land to another to make oil or gas operations, unless the operations for oil or gas are commenced before the life estate accrued. Marshall Mellon, 179 Pa.St. 371 (36 Atļ. Rep. 201; 57 Am. St. Rep. 601; 35 L. R. A. 816). The same is held by the court of appeals of Kentucky, especially following and approving the case of Koen v. Bartlett, 41 W. Va. 559, epitomized at length in Ballards' Law of Real Prop., Vol. V, § 522, Gerkins v. Kentucky Salt Co. Ky. (39 S. W. Rep. 444); and in this case it is held that a mining company which commenced original operations for natural gas upon land under a lease from the owner of a life estate therein and with the consent of a portion of the remainder men, at a large expense to itself, could only continue its operations by the payment of a fair royalty to the remainder men, after having been reimbursed for any improvements made on the land. A widow holding under the statute a one-third part of her intestate's realty for life may enforce an accounting under Pa. Act, April 25, 1850, against the purchasers from the heirs of the other two-thirds on account of minerals taken by them from the premises. McGowan v. Bailey, 179 Pa. St. 470 (36 Atl. Rep. 325).

Sec. 574. Separate ownership of surface estate and mineral estate. The owner of a mineral land may, by mining operations thereon, create a severance of the mineral

estate from the surface estate, and in such a case the title of one having notice of such operations, acquired by adverse possession of the surface estate, does not include the minerals under it. Delaware & H. Canal Co. v. Hughes, 183 Pa. 66 (38 Atl. Rep. 568; 63 Am. St. Rep. 743; 38 L. R. A. 826).

MORTGAGES.

EPITOME OF CASES.

Sec. 575. What constitutes a mortgage-Validity. Particular transaction held to constitute a mortgage. Trog don v. Walston, 164 Ill. 144 (45 N. E. Rep. 575). In Alabama, it is held that a husband may execute a purchase money mortgage without his wife joining with him, Stanley v. Johnson, 113 Ala. 344 (21 So. Rep. 823); but a mortgage without attestation or acknowledgment is inoperative to vest title to the land in the mortgagee. Watson v. Herring, 115 Ala. 271 (22 So. Rep. 28). Where a duly executed mortgage was submitted to the mortgagee for his inspection and he returned it to the mortgagor with instructions to have it recorded, there was held to be a sufficient delivery. Herman v. Clark,

Tenn. (39 S. W. Rep. 873). A mortgage will not be held invalid because a blank is left where the name of the mortgagee ordinarily appears, if the description of the indebtedness given and the other recitals in the mortgage clearly designate the mortgagee. Richey v. Sinclair, 167 Ill. 184 (47 N. E. Rep. 364). Citing, Beaver v. Slanker, 94 Ill. 177; Bay v. Posner, 78 Md. 42 (26 Atl. Rep. 1084). A mortgage to secure a preexisting debt of a third person given with a new loan made to him, is based upon a sufficient consideration. Mayberry v. Nichol, Tenn. (39 S. W. Rep. 881). Cal. Const.,art. 13, § 5, making void, contracts for the payment of taxes upon money loans, does not invalidate a provision in a deed given to secure debts for the repayment of all taxes upon the land. Barnhart v. Edwards, Cal. (47 Pac. Rep. 251). A mortgage taken to secure the repayment of money loaned at interest by one engaged in the business of

loaning money at interest is valid although the mortgagee has not complied with Idaho Rev. Stat., § 1644, requiring persons engaged in such business to obtain a license. Vermont Loan & T. Co. v. Hoffman, Idaho (49 Pac. Rep. 314; 37 L. R. A. 509). For an extended statement of this case, see chapter on Contracts, § 119. A mortgage executed on a certain day to secure the mortgagee from loss on account of an endorsement of the mortgagor's note, is not invalid because given to secure a debt which was "made or contracted after the execution and delivery of the mortgage," under New Hampshire Pub. Stat., ch. 139, § 3, where the endorsement of the note was made on the next day. Stavers v. Philbrick, N. H. (36 Atl. Rep. 16). Where a person has loaned money to a mortgagor, and claims an equitable right to share in the security of the mortgage, to which he is not a party, he must establish, by the weight of evidence, that all the persons interested as mortgagors and mortgagees agreed that he also should be secured by the mortgage. This agreement must precede or coincide in point of time with the advancement of the money loaned. A promise made to the loaner, after he has advanced the money, that he may share in the security of the mortgage, is voluntary and without consideration, and cannot be enforced. Boney v. Williams, 55 N. J. Eq. 691 (38 Atl. Rep. 189).

Sec. 576. Alterations in mortgages. A material alteration of a mortgage without the consent of the mortgagor renders it void; but such alteration does not void the note or evidence of the debt for the payment of which the mortgage is security. Kime v. Jesse, 52 Neb. 606 (72 N. W. Rep. 1050). Filling a blank in a note secured by a deed of trust by writing after the words "interest payable" the word "semiannually," is held to be a material alteration, but where such alteration was innocently made for the purpose of correcting a mistake and making the instrument conform to the agreement of the parties without any fraudulent intent, and it appears that no one was injured by filling in the blank left for that purpose, the instrument is not annulled nor the debt extinguished. McClure v. Little, 15 Utah 379 (49 Pac. Rep. 298; 62 Am. St. Rep. 938).

A deed

Sec. 577. Description of the debt secured. for land, retaining a lien for purchase money, or mortgage, or deed of trust, must in some way describe the debt, so as to identify it. Literal accuracy is not required. Substantial accuracy, reasonably describing, is sufficient. The description of the charge must be correct as far as it goes, so as to inform creditors and subsequent purchasers what amount is charged on the land, and must be full enough to direct attention to the sources of correct information, and be such a description of the debt as not to mislead or deceive as to its nature and amount. Goff v. Price, 42 W. Va. 384 (26 S. E. Rep. 287). Citing, Bowen v. Ratcliff, 140 Ind. 393 (39 N. E. Rep. 860; 49 Am. St. Rep. 203, and note). A mere recital in a mortgage that the mortgagor is "justly indebted " to the mortgagee in a certain sum, evidenced by a certain number of promissory notes, each for a specified sum, is not sufficient to support a promise to pay the amounts mentioned, and as to the notes which are never executed the promise will be treated as resting in parol. Coleman v. Fisher, Ark. (41 S. W. Rep. 49).

Sec. 578. Equitable mortgages. A security deed, void because of usury, does not create an equitable mortgage. Beach v. Lattner, 101 Ga. 357 (28 S. E. Rep. 110). A deposit of a bond for a deed by a debtor as collateral security for a loan, accompanied by a written instrument reciting that the deposit is made "to secure any indebtedness that may appear or shall come against me in any way," is held to be an equitable mortgage to which a surety may be subrogated, Hackett v. Watts, 138 Mo. 502 (40 S. W. Rep. 113). A contract in writing to secure a debt which is duly specified therein, in which the parties expressly declare their intention to create a lien, by way of mortgage, upon certain real estate particularly mentioned and described in the writing, upon the failure of certain conditions fully set forth in the contract, is an equitable mortgage, and, upon non-payment and breach of the conditions, may be foreclosed in the ordinary way in a court of equity, and the interest of the mortgagors in the land so pledged sold to satisfy the debt. Cummings v. Jackson, 55 N. J. Eq. 805 (38 Atl. Rep. 763).

Sec. 579.

Construction of mortgages.

A deed of

trust given to secure purchase money, on land bought and "the crop of cotton, corn and other produce to be raised by us and our employes during the year 1890," is held to embrace the crop on no other land than that conveyed. Pettis v. Sullivan, Miss. (21 So. Rep. 607). Where, at the time the mortgage is executed, the mortgagee takes from the mortgagor a conveyance of certain lands, under an agreement reciting that he is to sell such lands for the best price that he can obtain, and, after deducting costs and expenses and reasonable charges for selling the same to apply the proceeds upon the mortgage, the mortgagee becomes a trustee as to such lands for the mortgagor, and if, by delay in the nonperformance of his duties the lands are lost to the mortgagor by reason of tax sales, such mortgagee is chargeable with their value to be applied upon his mortgage. A.P. Cook Co. v. Bell, 114 Mich. 283 (72 N. W. Rep. 174). Where it is declared by a similar clause inserted in two several mortgages "that each shall be paid proportionately out of any proceeds from sale, judicial or otherwise, of the said premises," the contract of concurrency is limited to the equal sharing of the things mortgaged and does not intend to require the several debts secured to be equally paid from other sources than the mortgaged property. If payments be voluntarily made to one mortgagee, which do not appear to have been raised from the mortgaged property, the other cannot maintain a claim to be allowed out of that property a preferential payment, to equalize proportionately the debts secured. McInnes v. Mc Innes Brick Mfg. Co., N. J. Eq. (38 Atl. Rep. 182). For construction of particular mortgage, see Bachmeier v. Bachmeier,69 Minn. 472 (72 N.W.Rep. 710). For construction of particular agreement by which the mortgagor gave the mortgagee the right to the use and possession of a portion of the mortgaged premises, see McAbee v. Harrison, 50 S. C. 39 (27 S. E. Rep. 539).

Sec. 580. Title and right to possession. A mortgagor whose mortgage has not been foreclosed, although it purports to convey his "legal and equitable estate," who is the equitable owner of the land, may compel conveyance, of