130 Pa. St. 222 (18 Atl. Rep. 721); Ogden v. Hatry, 145 Pa. St. 640 (23 Atl. Rep. 334); Smith v. Miller, 49 N. J. Law 521 (13 Atl. Rep. 39); Tayl. Landl. & Ten., § 492; 1 Smith, Lead. Cas. 102, 119. It would also be competent for an owner of land to give an option to another party, upon a sufficient consideration, to drill one or more wells within a stated time, and, upon failure to drill such wells within the time limited, all rights to cease as to both parties. And it is contended by the oil company in this case that the leases in question are such options, or else are mere unexecuted licenses. In case of an option a certain consideration is paid or agreed to be paid to tie up the land for a given time, and during that time the owner is prevented from using or disposing of the land contrary to the terms of his contract. But in such cases the consideration for the option must be paid, and cannot be satisfied by a naked default. If such default could be held as satisfaction of the consideration, the instrument would be without consideration, and therefore void. In the leases in question the consideration is one dollar paid, and certain rentals promised to be paid in default of drilling a well; and, considered as an option, the whole consideration for the option must be paid. The same result follows if the instruments be regarded as unexecuted licenses. The consideration paid and agreed to be paid for the license is one dollar paid and certain rentals to be paid, and, the licensor not having interfered with the rights of the licensee, the latter is bound to pay the full consideration promised for the license, even though he never availed himself of its privileges. So that, whether the instruments in question are regarded as leases, options, or licenses, the plaintiff below is entitled to receive the considerations or rentals agreed to be paid."

Sec. 552. Rights of life tenant. An owner in fee simple makes an oil and gas lease for a term of five years, and as much longer as the premises are operated for oil and gas, or the rent for failure to commence operating is paid, for, among other things, one-eighth part of all oil produced and saved, to be delivered in the pipe lines to the credit of the lessor. The lessor then sells and conveys one undivided moiety or the one-sixteenth part of all the oil produced and saved. After

wards, but before any oil is bored for or produced, the lessor sells, grants, and conveys the land in fee simple to his six children, to each one a part, by metes and bounds, in consideration of natural love and affection, by deed of general war ranty, "except that the party of the second part takes the same subject to any lease for oil or gas made by the party of the first part or any sale of royalty for oil or gas made by him"; and, by the same deed, he retains full control of said land in all respects, and for all purposes, during his lifetime. Soon thereafter oil wells are bored, and oil produced, saved, and put in the pipe lines in large quantities. Held, that one-eighth royalty goes of right to the tenant for life and his grantees, during the continuance of the estate for life, and not to the owners in fee of the estate expectant thereon. Koen v. Bartlett, 41 W. Va. 559 (23 S. E. Rep. 664; 56 Am. St. Rep. 884; 31 L. R. A. 128). The court say: "The life tenant may lawfully mine, sever, and convert the mineral from the land into personalty; and this is something in which the owner of the expectant estate of inheritance has no right. He has a vested right in it as land,-nothing more,-and, if the severance is unlawful, may sue at law, enjoin in equity, and have an account. University v. Tucker, 31 W. Va. 621 (8 S. E. Rep. 410). But when, by lawful severance, it ceases to be land, his right ceases, and the owner of the immediate freehold takes the issues and profits; for, under the law, he has a right to the full enjoyment and use of the land and all its profits during his estate therein. 2 Bl. Comm. 122; Williams v. Pearson, (1862) 38 Ala. 299, 809; Crouch v. Puryear, 1 Rand. 258; 1 Minor, Inst. 54 b; Williams, Real Prop. (17th Ed.) 127; 1 Crabb, Real Prop. § 100; Tiedman, Real Prop. §§ 2-75; Kerr, Real Prop. § 682; Jackson v. Van Hoeson, 1 Shars. & B. Lead. Cas. Real Prop. 191, 206; McSwinney, Mines, pp. 46, 47; 2 Minor, Inst. 602; Eley's Appeal (1883), 103 Pa. St. 307. The rule is well settled that a tenant for life, when not precluded by restraining words, may not only work open mines, but may work them to exhaustion, and it is settled law that the rents of an open mine are income and go to the tenant for life. Rankin's Appeal, (Penn.) 16 Atl. Rep. 82. Lawfulness of severance and conversion into personalty seems to be the reason of the doctrine of the life tenant's right

to the rents and profits produced from open mines. A mine lawfully leased to be opened is an "open mine," within the reason of the rule as laid down in these cases; and when lawfully opened and worked, as in this case, during the time that the freehold estate of the life tenant continues, the profits issuing therefrom, thus lawfully severed and produced, belong of right to him; for the the term "profit," in law, comprehends the produce of the soil, whether it arise above or below the surface, including product of mines, as well as the herbage growing on the surface."

Sec. 553. Separate ownership of surface estate and mineral estate-Trust relations. Where the owner of minerals does not own the surface he is liable to the owner thereof for damages resulting from mining operations. Pringle v. Vesta Coal Co., 172 Pa. 438 (33 Atl. Rep. 690). It is held that the possession of the surface is not inconsistent with the right of possession of the coal beneath the surface, by another, under an agreement for the sale of such coal. Lulay v. Barnes, 172 Pa. St. 331 (34 Atl. Rep. 52). Where the mineral estate is severed from the surface by a conveyance, the lower estate passes to the grantee, subject to the servitude imposed upon it by nature for the support of the surface. The surface owes to the lower estates an easement or servitude for access. The lower estates owe to each other and to the surface an easement for support. The owner of the mine must leave enough of the mineral in place to answer the purposes of support for the surface, unless the owner of the surface has released his right to support either by express words or necessary implication. Robertson v. Youghiogheny River Coal Co., 172 Pa. 566 (33 Atl. Rep. 706). As to separate assessment of the estate of a mining lessee, see State v. South Penn. Oil Co., 42 W. Va. 80 (24 S. E. Rep. 688). Where the surface of a parcel of land is owned by one person and the minerals thereunder by another each has an independent freehold; they do not sustain the relation of joint tenants nor tenants in common, and a purchase of an outstanding title by one of them does not inure to the benefit of the other. Virginia Coal & Iron Co. v. Kelley, 93 Va. 332 (24 S. E. Rep. 1020);

Powell v. Lantzy, 173 Pa. 543 (34 Atl. Rep. 450). In the last case the court say: "The rule which applies to a trustee or to one occupying a fiduciary relation is stated in the notes to Keech v. Sandford, 1 White & T. Lead. Cas. Eq. (4th Am. Ed.), p. 62, to be this: Whenever one person is placed in such relations to another, by the act or consent of that other, or by the act of a third person or of the law, that he becomes interested for him, or interested with him in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interest he has become associated.' And the rule is said to apply as far as the principle and morality and policy upon which it is founded extend. In this state it has been enforced against joint tenants and tenants in common in a number of cases, among them Weaver v. Wible, 25 Pa. St. 270 (64 Am. Dec. 696); Lloyd v. Lynch, 28 Pa. St. 419 (70 Am. Dec. 137); Gibson v. Winslow, 46 Pa. St. 380 (84 Am. Dec. 552); and Maul v. Rider, 59 Pa. St. 167-where there had been the purchase of an outstanding title or of the interest of one of the parties by the other at a sheriff's sale. But the owner of the mineral rights holding by virtue of a reservation in a deed is neither a tenant in common nor a joint tenant with the owner of the surface. Each has a separate estate. Neill v. Lacy, 110 Pa. St. 294 (1 Atl. Rep. 325). See, also, Plummer v. Coal & Iron Co., 160 Pa. St. 483 (28 Atl. Rep. 853); Algonquin Coal Co. v. Northern Coal & Iron Co., 162 Pa. St. 114 (29 Atl. Rep. 402). After the severance of the surface from the minerals by a conveyance they form separate estates. Caldwell v. Fulton, 31 Pa. St. 475 (72 Am. Dec. 760); Caldwell v. Copeland, 37 Pa. St. 427 (77 Am. Dec. 430); Manufacturing Co. v. Neel, 54 Pa. St. 9. And each is separately the subject of taxation. Logan v. Washington Co., 29 Pa. St. 373; Sanderson v. City of Scranton, 105 Pa. St. 469; Petrickin v. Myton, 3 Penny. 216. When in 1884 the sale for taxes took place, the estates were distinct, and the division was as complete as if it had been made by lines on the surface. They were separately the subjects of possession, enjoyment, incumbrance, and taxation. There was no community of interest between the owners."

Sec. 554. Miscellaneous notes.

For a discussion of

the property rights in natural gas, see Gerkins v. Kentucky Salt Co., Ky. (36 S. W. Rep. 1). For a construction of a mining contract depending upon particular facts and involving the acceptance of an option, see Clarno v. Grayson, 30 Ore. 111 (46 Pac. Rep. 426). For construction of particu lar conveyance of mineral rights under which it was held that the failure of the grantee to prosecute mining operations for a term of years amounted to a forfeiture of his rights and that no reentry by the grantor was necessary, see Hawkins v Pepper, 117 N. C. 407 (23 S. E. Rep. 434). Mo. Rev. Stat. 1889, §§ 7034, 7035, construed and applied-forfeiture for failure to work-recovery of possession. Cleveland & A. Mineral Land Co. v. Ross, 135 Mo. 101 (36 S. W. Rep. 216)

MORTGAGES.

Sec. 555.

EPITOME OF CASES.

What constitutes a mortgage-Validity. No particular form is required for an agreement given to secure the payment of a debt in order for it to constitute a lien. It is sufficient if it clearly indicates the intention to create a lien, the debt to secure which it is given, and the property upon which it is to take effect. Wylly v. Screven, 98 Ga. 213 (25 S. E. Rep. 435). A grantor, who, in lieu of his grantee's agreement to pay one half of the purchase price in cash and give his note and mortgage for the balance, accepts a deed of trust securing two notes of the grantee which represent the whole of the purchase price, in order to realize cash, indorsed her name on the back of the note first maturing thereby makes such note her obligation and a subsequent holder thereof upon its nonpayment, may have a sale of the premises. Green County Bank v. Chapman, 134 Mo. 427 (35 S. W. Rep. 1150). Particular instrument held to constitute a mortgage. Purser v. Eagle Lake L. & I. Co., 111 Cal. 139 (43 Pac. Rep. 523). Particular facts held insufficient to show the execution of a mortgage. Wagener v. Kirven, 47