ment to be executed and to execute a lease under seal, the authority of the agent must also be under seal.1 § 117. Lessor must have possession. It is absolutely necessary, under the prevailing statutes, that the lessor should have the actual or legal possession of the premises to be conveyed, and if the premises are in the actual possession of an adverse claimant a lease by the owner would be absolutely void, unless it were delivered as an escrow, to take effect when he should enter and recover the possession of the premises.2 But when a seisin is once shown to exist, it is always presumed in law to continue, and this presumption is carried to such an extent, that one in the actual possession of a tract of land, although his possession may not be legal, can make a valid lease and the same can only be avoided by the eviction of the disseisor by the party holding the paramount title.3 It is not necessary, however, that the lessor should have the actual possession of the premises, in order for him to make a valid lease of the same, provided he has the right to take possession, or what is generally termed possession in law. All that is necessary is that the lessor should have an absolute right of entry on the premises, hence, an heir can lease land that he has acquired by descent, or a remainderman can make a valid lease of land to which he has a present title, even before an actual 1 Story on Agency, § 49. And see also Ewell's Evans on Agency, 119 n, 145 n. 2 Taylor's Land. & Ten., § 85; Vorick v. Jackson, 2 Wend. 166; Smith v. Burtis, 6 Johns. 197; Austin v. Huntsville Coal & Mining Co., 72 Mo. 535. 3 Redfield v. Utica &c. Ry. Co., 25 Barb. 54; Lee v. Norris, Cro. El. 331; Thurston's Case, Owen, 16; Taylor L. & T. supra. 4 Generally, the undisputed right of possession is all that is necessary in the lessor. Taylor's Land. & Ten., § 86; Hoyt v. Dillon, 19 Barb. 644. entry, and although the tenant, or owner of the particular estate, is still in possession of the premises.1 - It is not § 118. How lease may operate by estoppel. only necessary that one should have possession, but he should also have a title to the premises, in order to make a valid lease. But one can make a valid lease of premises of which he is in actual possession, although the title to the land is in another, and the lease which would otherwise have been avoided by the eviction of the lessor, will be made good by estoppel, if the disseisor afterward acquire title to the premises conveyed, during the continuance of the lease,2 and where land is leased for a term of years, and the lease cannot operate because of a prior lease of the same premises, the second lease will take effect by way of estoppel for as much of the term as remains in the lessor, after the termination of the prior lease.3 But a lease will not take effect under the doctrine of estoppel, where the lessor's want of title appears upon the lease itself, and although 1 Hall v. Benner, 1 Pa. 02; Kinsman v. Greene, 16 Me. 60; Taylor's Land. & Ten., supra. See as to right to royalty as between life tenant and remainderman. Bassett v. Bassett, 14 M. M. R. 359; Briggs v. Davis, 14 M. M. R. 585; Lynn's App., 15 M. M. R. 126. 2 Luxton v. Stephens, 3 P. Wms. 373; Lowes v. Skinner, 3 Pick. 52; Austin. Ohearn, 61 N. Y. 6; Taylor's Land. & Ten., p. 98; citing Jackson v. Murray, 12 Johns. and other cases. "Where the grantor in a deed conveying the coal under her land stood by for 12 or 15 years and permitted appropriation of a portion of the surface, she was not entitled to enjoin the removal of improvements." Potter v. Rend (Pa.), 50 Atl. Rep. 821. See as to claim to property, after assisting in leasing it. Stewart v. Munford, 91 Ill. 58; 5 M. M. R. 555. And for case where estoppel operated against the lessee, see Wickersham v. Chicago Zinc Co., 18 Kan. 481; 26 Amer. Rep. 784; 5 M. M. R. 536. 3 Gilman v. Hoare, 1 Salk. 275. 4 Hermitage v. Tompkins, 1 Ld. Ray. 729. And see also Taylor's Land. & Ten., § 90; 88. But where estoppel will operate it binds not only the owner, but also his purchaser and privies of estate with him. Sturgeon v. Wingfield, 15 M. & W. 324. an heir of the lessor, or other person who derives title under him, will be equally bound by the conditions of the lease, such a lease, by a tenant for life, will not extend beyond his life and bind his heirs, even though he subsequently purchases the reversion before his death.1 The prem § 119. Recitals and construction of lease. ises to be granted by the lease should be described with reasonable certainty and the land to be conveyed, together with such things as are directly incident thereto, or necessary to its enjoyment, should be especially mentioned in the conveyance, as they pass by implication with the land, unless expressly reserved in the lease.2 But an easement will not pass by implication, in a conveyance of land, unless it is necessary to the enjoyment of the land itself,3 and although recitals in a lease may sometimes operate by way of estoppel, an erroneous recital is generally held immaterial, unless it shows that the lessor had no interest in the subject-matter of the demise. The recitals in a lease should always be construed according to the intention of the parties, and if necessary a word can be inserted or omitted in order to effectuate such intention.5 Where the language of an exception or recital is uncertain, it will be construed, generally, in favor of the lessee. But the power to revoke 1 Taylor's Land. & Ten., § 91; Blake v. Foster, 8 T. R. 487. A life tenant cannot lease land for oil or gas. Gerkins v. Ky. Salt Co., 100 Ky. 734; 39 S. W. Rep. 444. 2 Rood v. N. Y. & E. Ry. Co., 18 Barb. 80; Plevey v. Skinner, 116 Mass. 129; Mott v. Palmer, 1 N. Y. 564. 3 Manning v. Smith, 6 Conn. 289. And a way of necessity would exist only so long as the necessity continues. Osborne v. Wise, 7 C. & P. 761. 4 Hermitage v. Tomkins, 1 Ld. Ray. 729. 5 Taylor's Land & Ten., § 150; Jackson v. Streeter, 5 Cow. 529. But see as to the insertion of terms to effectuate the intention of parties, 1 Greenl. Ev. 267. 6 Taylor's Land & Ten., § 158, p. 168. a lease gives the lessor power to revoke it at any time, and a proviso that the term shall cease on the failure of the lessee to pay rent or royalty, merely gives the lessor power to determine it on such failure and the lessee does not possess such an option.1 to explain. - Parol § 120. Same Parol evidence evidence is always admissible to explain a mining term, in accordance with the rules of evidence relating to other written contracts.2 Where the description. is faulty, extrinsic evidence is competent to apply the instrument to its subject, or to supply omissions in the agreements or covenants of the lease that the parties, at the time of making the contract, may have overlooked, and to explain latent ambiguities and local terms,5 as well as to prove local customs and usages prevailing in the section, and with reference to which the parties are presumed to have contracted.7 But it is not competent in a suit on a covenant of a min 1 Taylor's Land & Ten., 112 et sub. Owing to the peculiar nature of oil and gas, and the susceptibility to drainage by surrounding wells such leases are construed most strongly against the lessee and for the protection of the lessor. Huggins v. Dally, 99 Fed. Rep. 606; 48 L. R. A. 320. And a clause permitting lessee to surrender term, at his option, makes lease void, for want of mutuality, Eclipse Oil Co. v. Penn. Oil Co. (W. Va. '99), 34 S. E. 928; Nat. Oil & Pipe Line Co. v. Teel (Texas, 1902), 67 S. W. Rep. 545. But see Brown v. Fowler (Ohio, 1902), 63 N. E. 76; 20 Am. and Eng. Enc. Law (2 Ed.), 785. 2 Hutchinson v. Bawker, 5 M. & W. 535; 1 Greenl. Evid., Sec. 295; 277; 280; 2 Stark. Evid. 566. 3 Noonan v. Lee, 2 Blk. (W. L.) 499; Calbourn v. Dawson, 1 C. B. (70 Eng. C. L.) 765. 4 Hutton v. Warren, 1 M. & W. 474; Wiggleworth v. Dallison, 1 Doug. 201. 5 Fisher v. Dibert, 54 Pa. St. 460. Jenny Lind Co. v. Bowers, 11 Cal. 194; Chester Emery Co. v. Lucas, 112 Mass. 424. But see Clayton v. Greyson, 50 Ad. & E. 302; Brain v. Harris, 24 L. J. N. S. Ex. 177. 'Desloge v. Pearce, 38 Mo. 588, and English cases cited. ing lease, to introduce evidence of a verbal agreement made at the time of the execution of the lease, but differing from the covenant in the lease, although a subsequent oral modification of the covenant would constitute a valid subsisting contract.2 A general meaning is not sufficient evidence of the local meaning of a mining term,3 and parol evidence is generally only admissible to explain ambiguities, local terms and customs, and for the purposes above enumerated, and unless some of these exist, it is properly excluded by the court.4 a § 121. Warranties in a lease. The parties to mining lease are held to have contracted with reference to the state of things existing at the time the lease was made, and without some express covenant, aside from those which are incident to the nature of the contract, the lessee cannot complain that the circumstances were different from what he had expected to find them, and unless the transaction was tainted with fraud, he could not introduce parol evidence to show that the lessor had represented things to be in a different condition, for the instrument itself is the best evidence of the transaction.5 The lessee, of course, has a right to rely on the existence of the subject-matter, 1 Lyon v. 3 Houghton v. Gilbert, 7 C. & P. 701; 1 Greenl. Evid., Sec. 295; 2 Stark. Evid. 566. 4 Fisher v. Deibert, 54 Pa. St. 460; Pennyman v. Winner, 2 M. M. R. 448; Fitch v. Archibold, 2 M. M. R. 555; Burr v. Spencer, 8 M. M. R. 450. 5 Gowan v. Christie, 5 Mook, 114; L. R. 2 L. C. App. 273; Pearson v. Martin, 38 Wis. 265. But see as to exhausted mine, Murdock v. Fullerton, 5 Mook, 414; L. R. 2 L. C. App. 273; Phillips v. Jones, 9 Sim. 519, as to incumbrance, Stombaugh v. Smith, 23 Ohio St. 585, and as to quality, Fort Scott C. & M. Co. v. Sweeney, 15 Kansas, 244. "Where a mining lease fixed a minimum amount of coal which the lessee was required to mine or to pay royalty on, the fact that in several settlements for roy |