Daley & Byrne for Appellant.

Chas. L. Allison and David W. Richards for Respondent.

CRAIG, J.-By this action plaintiff seeks to annul his marriage with defendant. The appeal is by the plaintiff on the judgment-roll alone. [1] The findings and facts admitted by the pleadings, among other things, show that the parties were married on the 7th of November, 1917, at which time the said Laurel V. West was under the age of eighteen years, and had no guardian other than his parents in whose custody and under whose control he then was; that the parents had no knowledge of the marriage and did not consent to it; that subsequent to the marriage two children were born to the parties; that after the plaintiff attained the age of eighteen years he and the defendant never cohabited together. The further fact appears that the plaintiff's parents after learning that the marriage had been duly solemnized, encouraged the plaintiff and defendant to continue living together as man and wife.

On these facts the superior court rendered judgment in favor of the defendant. Section 82 of the Civil Code provides: "A marriage may be annulled for any of the following causes, existing at the time of the marriage: First, that the party in whose favor it is sought to have the marriage annulled was under the age of legal consent, and such marriage was contracted without the consent of his or her parents or guardian, or other person having charge of him or her; unless, after attaining the age of consent, such party for any time freely cohabited with the other as husband and wife." The instant case comes squarely within this section. The plaintiff at the time of the marriage was under the age of legal consent and the marriage was contracted without the consent of his parents, who were the only persons then having charge of him. Under these circumstances, the code expressly provides that the marriage may be annulled upon application of the infant unless, "after attaining the age of consent such party, at any time freely cohabit with the other as man or wife." The facts do not bring the case within this exception. It is obvious that acquiescence or even express consent of the parents after the marriage has been con

tracted is ineffectual to render the marriage valid. The authority of the parents in the matter of giving consent to the marriage of their infant child is conferred, and also by the statute. This marriage became voidable immediately upon solemnization, and could become binding only in case. the plaintiff had freely cohabited with the defendant after attaining the age of consent.

The judgment is reversed.

Finlayson, P. J., and Works, J., concurred.

[Civ. No. 3825. Second Appellate District, Division Two.-June 16, 1923.]

FRANK F. PELLISSIER et al., Appellants, v. PANAMERICAN PETROLEUM COMPANY, Respondent.

[1] LEASES-BREACH OF COVENANT TO DRILL FOR OIL-TERMINATION OF LEASE RIGHTS OF LESSORS.-Where a lease of oil land for a term of years specifies that the lessee shall commence operations within six months and thereafter prosecute, with reasonable diligence, the work of drilling, and further provides that in the event the lessee fails to perform any of the covenants of the lease "and such failure shall continue for a period of thirty days after personal service of a written notice thereof upon the lessee . . . this indenture of lease shall, at the option of the lessors, become immediately null and void, and the lessors shall thereupon have the right ... to re-enter upon the land hereby leased, and remove all persons therefrom, provided, however, that such re-entry, if made, shall be the sole and exclusive remedy of the lessors," such provisions are intended to be for the benefit of the lessors and might be waived by them; and if the lessee fails to drill as agreed no other or additional obligation rests upon him because of such failure than that specified in the lease; and, upon such failure, if the lessors do not terminate the lease in the manner specified (and the lessee does not abandon the premises as provided in the lease), the lease remains unimpaired, and the mere lapse of time can in no way affect its life.

[2] ID.-EXTENSION OF AGREEMENT-ELECTION OF LESSEE TO PRESERVE RIGHTS RIGHTS OF LESSOR COMPENSATION. - Where, after the lessee has failed to commence operations within the time specified, the parties entered into a written stipulation wherein the lessors agree "that in lieu of commencing and prosecuting operations for

the drilling of a well . . . the lessee may, if he shall so elect, pay to the lessor" on a specified day "of each and every calendar month, for an additional period of six (6) months," commencing on a specified date, "as and for rental for said land," a specified sum per month, "and such payment so made from month to month, shall relieve the lessee of and from all obligations to commence or prosecute drilling or other operations upon said land during such month," the lessors acquire no new rights except to the rental money received by them; and where the lessee, after having paid the sum specified for a number of months, fails to elect whether or not he will keep his right to begin drilling alive, by the payment of the monthly sum specified, the lessors are not entitled to maintain an action to recover such sum per month for each month the lessee remains in possession.

APPEAL from a judgment of the Superior Court of Los Angeles County. J. P. Wood, Judge. Affirmed.

The facts are stated in the opinion of the court.

Geo. J. Denis for Appellants.

Olin Wellborn, Jr., and Stephen Monteleone for Respondent.

CRAIG, J.-The appellants, Frank F. Pellissier and his wife, leased certain lands belonging to them to one E. L. Doheny, as lessee, for the exploration of oil and gas. The lease was executed on the tenth day of October, 1917, and was subsequently assigned by the lessee to the Pan-American Petroleum Company, a corporation, the respondent herein. Neither the lessee nor his assignee, the Pan-American Petroleum Company ever commenced operations for the drilling of a well upon said land. Extensions of time for commencing said drilling operations were granted to the lessee by the lessors up to the tenth day of October, 1919. On November 24, 1919, plaintiff's executed to respondent's assignor a certain indenture in writing, under which four payments were made to the lessors, being for the months of October, November, December, and January. The fourth payment was made on January 12, 1920.

No payments were made for the months of February and March, 1920. On the twenty-first or twenty-second day of April, 1920, the respondent, Pan-American Petroleum Company, tendered to the appellants a quitclaim deed to the

land. This action was brought to recover the rent alleged to be due for said months of February and March, during which months the lessee retained possession of the land.

The case was tried by the court sitting without a jury. The court, among other things, found as follows: "That after the execution and delivery of said indenture dated November 24, 1919, defendant made four monthly payments of $833.33 each under and pursuant to said indenture and thereby exercised its right to extend the time in which to commence drilling operations up to the eighteenth day of February, 1920; that thereafter defendant retained all rights and privileges granted by said lease up to the tenth day of April, 1920, but did not retain, nor did it elect to retain, any rights or privileges granted by said indenture dated November 24, 1919, beyond the tenth day of February, 1920, and accordingly failed and refused to make any further payments thereunder; that there did not become due or payable from defendant to plaintiffs, or either ot them, on the tenth day of April, 1920, or at any other time, the sum of $1666.66, or any other sum, nor any interest whatever, and there is not due or owing from defendant to plaintiffs, or either of them, the sum of $1666.66, or any part thereof or any interest whatever thereon."

Judgment was thereupon rendered in favor of defendant that plaintiffs take nothing by their action, from which judgment plaintiffs appeal. Appellants' contention is that the court erred in its construction of the terms and effect of the last extension agreement or instrument of November 24, 1919, and also of the lease itself.

The following provisions of the lease and extension are essential to the determination of the appeal. The following is quoted from the lease: "The lessee shall, subject to the exceptions hereinafter contained, commence operations preparatory to the work of drilling one well upon said land within six months from the date thereof, and thereafter prosecute, with reasonable diligence, the work of drilling such well for the production of petroleum therefrom until petroleum in paying quantities, as hereinafter defined, is found, or such well is abandoned as hereinafter provided." Also, "That in the event that the lessee shall, at any time during the term hereof, fail to perform any of his covenants 62 Cal. App.-35

and agreements contained in subdivisions 1, 11 and 111, of the lessee's covenants herein and such failure shall con tinue for a period of thirty days after the personal service of a written notice thereof upon the lessee, or his heirs or assigns, specifying the particulars in which such failure has occurred, this indenture of lease shall, at the option of the lessors, become immediately null and void and the lessors shall thereupon have the right (subject, however, to the provisions in paragraph 4 of the lessors' covenants herein) to re-enter upon the land hereby leased, and remove all persons therefrom, provided, however, that such re-entry, if made, shall be the sole and exclusive remedy of the lessors for the breach on the part of the lessee of his said covenants or agreements in said paragraphs contained; that in the event the lessee shall desire to abandon this lease and terminate all of his obligations hereunder, he shall have the right so to do by serving written notice of such abandonment upon the lessors and delivering and yielding up to the lessors the possession of all of the land hereby leased, except so much thereof as the lessee may be entitled to retain under the provisions of paragraph fourth of the lessee's covenants herein, and delivering to the lessors a quitclaim deed executed and acknowledged by the lessee, releasing, remising and quitclaiming unto the lessors all of the land hereby leased, except so much thereof as the lessee may be entitled to retain under the provisions of said paragraph fourth."

The last extension agreement provides: "Now, therefore, the lessors hereby agree that in lieu of commencing and prosecuting operations for the drilling of a well upon said land described in and leased by said indenture of lease, the lessee may, if he shall so elect, pay to the lessor on the 10th day of each and every calendar month, for an additional period of six (6) months, commencing on the 10th day of October, 1919, as and for rental for said land, the sum of Eight Hundred and Thirty-three Dollars and Thirty-three cents ($833.33) per month, and such payment so made from month to month, shall relieve the lessee of and from all obligations to commence or prosecute any drilling or other operations upon said land during such month."

1) An analysis of this lease and the subsequent exten