RAINEY, J.
This is an equitable action for the cancellation of an oil and gas lease. At the request of all parties the trial court made separate findings of fact and conclusions of law, which are as follows:
“Findings of Fact by the Court.
“In this case the court finds the facts to be:
“1. That the land involved in this suit and covered by the oil and gas lease in controversy, is as described in the pleadings and consists of 160 acres of the allotment of one Owen W. Bland, who was a member of the Creek tribe of Indians by blood.,
“2. The court finds that the said Owen W. Bland and the. defendant Fern Bland were married on the 15th day of July, 1915, and that they separated on or about the first day of November, 1915, and never resided together as husband and wife thereafter.
“3. That on the 24th day of November, 1915, the said Fern Bland filed suit for divorce and alimony, and that in said petition she alleged that said separation took place on the 1st day of November, 1915.
“4. The court further finds that the said Owen W. Bland as the owner of said land, never at any time during said marriage relation, or at any other time, designated or selected said land or any portion thereof as a homestead for himself and family, and never at any time had any intention of making said land the homestead of himself and family, nor did he have any intention at any time to improve the same for a homestead or live and reside thereon as such.
“5. The court finds that on the 18th of November, 1915, the said Owen W. Bland executed and delivered an oil and gas lease covering the land involved, the same being the 360 acres allotment of Owen W. Bland, to one John H. Simmons, for a valuable consideration ; that on the 16th day of November, 1916, said lease was, for a valuable consideration, assigned by the said John H. Simmons, the owner thereof, to the Ross Investment Company, an Oklahoma corporation organized for the purpose of producing oil and gas for commercial purposes; that said oil and gas lease was sold and transferred by the Ross Investment Company to AV. S. McCray.
“6. The court finds further that on January 11, 1916, and at all times thereafter the plainiiff had constructive knowledge of the' execution of a lease by the said Helen Fern Bland to Ambrose Miller covering the lands involved herein and of the intention of the said Helen Fern Bland to hold the plaintiff lessees to the performance or the covenants of development in the Simmons lease.
“7. The court finds that on November 16, 3916, and after said Owen W. Bland had conveyed to Fern Bland the eighty acres in controversy, W. S. McCray paid to said Fern Bland eighty dollars, the amount provided for in the lease covering the eighty acres described in the deed of conveyance, and the same was accepted by the said Fern Bland; that some time prior to November 15, 1917, the plaintiff made personal tender of eighty
dollars duo Pern Bland as rental on the eighty acres herein, which was refused by her; that on the 35th day of November, 1917, plaintiff, W. S. McCray, deposited in the First National Bank of Tulsa, Oklahoma, in pursuance to tho provisions of said oil and gas lease, the sum of eighty dollars,.to the credit of the said Fern Bland.
“8. The court finds that on or about the 1st of September, 1917, the plaintiff W. S. McCray started drilling operations for the purpose of drilling a well for oil and gas, upon the land in controversy; that the average time for drilling and completing a well in said vicinity was thirty days; that plaintiff encountered unforeseen trouble and that said well was not completed prior to the 18th dáy of November, 1917; that there was no oil being produced in paying quantities from said land on the 18th day of November, 1917, nor until some time thereafter; that said drilling operations and development were started and continued in good faith and due diligence by the plaintiff, W. S. McCray, and continued until oil was found in paying quantities.
“9. The court finds that at the time Owen W. Bland and Fern Bland were divorced that they freely and voluntarily entered into an alimony and property settlement and settlement of their property and marital rights; that by reason of such settlement Fern Bland received the eighty acres in controversy by a conveyance from Owen W. Bland, and that she released all interest in his property, both real and personal, and assumed the payment of one-half of a mortgage for thirty-five hundred dollars against the entire allotment, and that said Owen W. Bland in effecting said settlement and executing and delivering said deed of conveyance, acted freely and voluntarily and free from any duress, undue influence, menace and compulsion.
“Conclusions of Law.
“1. The court concludes as a matter of law that from the facts found, the land in controversy and no part thereof was impressed with the homestead character and does not constitute the homestead of Owen W. Bland and Fern W. Bland, his wife.
“2. That the consideration for the Simmons lease was the covenants on the part of the lessee for the development of the property and the payment of prospective royalties, and that by reason of the surrender clause contained therein, the said lease was subject to surrender by the lessee and therefore subject to be terminated at a given rental paying period, by the lessor, and constituted a contract for the one year only for which the rental was actually paid; that the first lease to Ambrose Miller by Helen Fern Bland, in January, 1916, constituted constructive notice to the lessees, by reason of its due recordation, of her intention to hold the lessees to the covenants of development; that the rentals for the second year having béen refused by defendant Fern Bland, the said plaintiff W. S. McOray failing to produce oil in paying quantities on said land on or before the 18th day of November, 1917, the lease thereby was terminated.
“3. The court further concludes that there is no sufficient allegation and no sufficient or competent proof offered or introduced of duress or menace; that there is no sufficient pleading or proof of threats of unlawful imprisonment and no sufficient allegation or proof of an effort to restore, as required by statute under proceedings to rescind.
“4. The court further concludes that the plaintiff, Owen W. Bland, has no right, title or interest in and to the land involved in this action and that he and his privies should be forever enjoined from asserting any right, title or interest in and to said land and that the right, title and interest of Helen Fern Bland in and to the fee simple title should be decreed to be valid and perfect and quieted against the claim of' all persons claiming by, through, or under the said Owen W. Bland.
“5. The court further concludes as a matter of law that the said Simmons lease is of no force or effect, and that the said lease to Ambrose Miller and his assignees is a valid and subsisting lease in the hands of the said Ambrose Miller and his assigns, and that the title thereto should be quieted against the claim of John H. Simmons and his assigns and that the plaintiffs should be forever enjoined from asserting any right, title or interest therein or thereto.
“6. A decree should be drawn in compliance with the findings of fact and conclusions of law herein made.
“Mark L. Bozarth, District Judge.”
An examination of the record discloses that all the findings of fact are in accord with the weight of the evidence, which leaves for our consideration only questions of law.
It will be noted that the court found in its second conclusion of law that by reason of the presence of the surrender clause the Simmons lease was subject to surrender by the lessee, and, therefore, was also subject to lie terminated at any given rental paying period by the lessor, and counsel for defendant in error say in their brief that the instant case was decided in favor of their clients by the'trial court upon the principles laid down in Brown v. Wilson, 58 Okla. 392, 160 Pac. 94. That case has been overruled by this court in the case of Rich v. Doneghey, 71 Oklahoma, 177 Pac. 86, and we now hold in accord with the great weight of authority that the down payment, or cash consideration, in the lease supports all its covenants and that an oil and gas lease is not subject to cancellation merely because of the
presence of tlie surrender clause therein. Northwestern Oil
&
Gas Co. v. Branine, 71 Oklahoma, 175 Pac. 533; Maud Oil & Gas Co. v. Bodkin, 75 Oklahoma, 180 Pac. 959; Magnolia Petroleum Co. v. Saylor, 72 Oklahoma, 180 Pac. 861.
But in support of the judgment of the trial court it is urged that the judgment was right, for the reason that the proof shows Helen Pern Bland did not join in the lease executed by her husband, Owen W. Bland, to Simmons, and that when said lease was executed the said Owen
W.
Bland owned only one hundred sixty acres of land consisting of one parcel, and that section 1, art. 12 of the Constitution, impressed the said one hundred sixty acres covered by the Simmons lease with the homestead character, regardless of any intention or overt act on the part of the owner. The homestead provision of our Constitution is as follows:
“The homestead of any family in this state, not within any city, town, or village, shall consist of not more than one hundred and sixty acres of land, which may he in one or more parcels, to be selected by the owner. The homestead within any city, town, or village, owned and occupied as a residence only, shall consist of not exceeding one acre of land, to be selected by the owner: Provided, that the same shall not exceed in value the sum of $5,000, and in no event shall the homestead be reduced to less than one-quarter of an acre, without regard to value: And provided further; that in case said homestead is used for both residence and business purposes, the homestead interests therein shall not exceed in value the sum of $5,000: Provided, that nothing in the laws of the United States, or any treaties with the Indian tribes in the state, shall deprive any Indian or other allottee of the benefit of the homestead and exemption laws of the state: And provided further, that any temporary renting of the homestead shall not change the character of the same when no other homestead has been acquired.”
Section 3343, Rev. Laws of 1910, is almost identical with the above provision.
The finding of the trial court that Owen W. Bland, as the owner of said land, never at any time, during the existence of the marriage relation with Helen Pern Bland, designated or selected the tract of land in controversy, or any portion thereof, as a homestead for himself and family, and that he never at any time had any intention of making said land the homestead of himself and family, nor did he have at any time auy intention to improve the same for a homestead or to live and reside thereon as such, being in accord with the weight of the evidence, the precise question presented for determination is: Does the fact of ownership alone by the head of a family in this state of but one tract of land (not within any city, town, or village) consisting of not to exceed one hundred sixty acres inmress said land with the character of the homestead of the family within the meaning of section 1, art. 12 of the Constitution, and section 3343, Rev. Laws of 1919, supra?
An examination of the opinions of this court in cases involving homesteads that have arisen subsequent to the adoption of the Constitution discloses that the court has assumed, in accordance with the almost universal rule, that premises of an owner do not constitute a homestead, unless they are actually occupied and used by him as a residence and home for himself and family, or unless there has been at least a bona fide intention to apply them to such use within a reasonable time. Hyde v. Ishmael, 42 Okla. 279, 143 Pac. 1044; Laurie v. Crouch, 41 Okla. 589. 139 Pac. 304; American Surety Co. of New York v. Gibson et al., 65 Oklahoma, 166 Pac. 112; Illinois Life Ins. Co. v. Rogers, et al., 61 Oklahoma, 160 Pac. 56; Davis v. First State Bank of Idabel, 65 Oklahoma, 166 Pac. 92; Elliott v. Bond, 72 Oklahoma, 176 Pac. 242; McFarland v. Coyle, 69 Oklahoma, 172 Pac. 67. And other cases also hold, in accordance with our Constitution and statute, that where land has once become impressed with the homestead character the homestead right is not lost or impaired by any temporary renting of said homestead when no other homestead has been acquired. German State Bank of Elk City v. Ptachek, 67 Oklahoma, 169 Pac. 1094; MeCannon v. Jenkins et al., 44 Okla. 612, 145 Pac. 1163.
In most states occupancy of the premises, or a part thereof, is expressly required by the Constitution or statutes, both as to a rural homestead and an urban homestead. It will be noted that our Constitution expressly requires occupancy as to the urban homestead, but does not, in express terms, require occupancy as to the rural homestead. Then the question to be determined is what signification should be given the word “homestead,” as used in that part of our constitutional provision pertaining to rural homesteads. The word has been many times defined, and it has been held that it has both 'i popular and a legal signification; that in its popular sense it signifies the place of.the home — the residence of the family, and that it represents the dwelling house in which the family resides, with the usual customary appurtenances, including the outbuildings of every kind necessary or convenient for family use, and the lands used for the purposes. In re Owings, 140 Fed. 739, 741; Turner v. Turner, 107 Ala. 465, 18 So. 210, 54 A. S. R. 110: Tumlinson v. Swinney, 22 Ark. 400, 75
Am. Dec. 432; Gregg v. Bostwick, 33 Cal. 220, 91 Am. Dec. 637; Ashton v. Ingle, 20 Kan. 670, 27 Am. Rep. 197; Linn County Bank v. Hopkins, 47 Kan. 580, 28 Pac. 606, 27 A. S. R. 309 and note; Galligher v. Smiley, 28 Neb. 189, 44 N. W. 187, 26 A. S. R. 319; Phelps v. Rooney, 9 Wis. 70, 76 Am. Dec. 244; White v. Spencer 217 Mo. 242, 117 S. W. 20, 25, 129 Am. St. Rep. 547, 16 Ann. Cas. 598; Elliott v. Thomas, 161 Mo. App. 441, 143 S. W. 563, 564; Palmer v. Sawyer, 74 Neb. 108, 103 N. W. 1088, 1090, 12 Ann. Cas. 715 ; Weatherington v. Smith, 77 Neb. 369, 112 N. W. 566; Cushman v. Davis, 79 Vt. 111, 64 Atl. 456; Matthews v. Jeacle, 61 Ela. 686, 55 So. 865, 867; Flowers v. United States Fidelity & Guaranty Co., 89 Ark. 506, 117 S. W. 547, 548; Merrell v. Harris. 65 Ark. 355, 46 S. W. 538, 41 L. R. A. 714, 67 Am. St. Rep. 929; Calmer v. Calmer, 15 N. D. 120, 106 N. W. 684, 686; Moore v. Smead, 89 Wis. 558, 62 N. W. 426; Voelz v. Voelz, 8, Wis. 461, 60 N. W. 707, 708; Upman v. Second Ward Bank, 15 Wis. 449; Tillotson v. Millard. 7 Minn. 513, 518, 82 Am. Dec. 112; Morris v. Brown, 5 Kan. App. 102, 48 Pac. 750. Webster’s New International Dictionary defines it as “The land and buildings thereon occupied by the owner as a home for himself and his family, if any, and more or less protected by law* from the claims of his creditors.” The Supreme Court of New7 Hampshire, in the early case of Hoitt v. Webb, 36 N. H. 116, thus defines the word: “The home place — the place where the home is. It is the home — the house and the adjoining land where the head of the family dwells — the home farm.” And this definition is adopted by Bouvier’s Law Dictionary. In White v. Spencer, supra, it is said that the term “homestead” means that tract of land which, being within the statutory limitations as to quantity and value, is occupied and claimed as a homestead. The Arkansas courts say that a homestead necessarily includes the idea of a house for a residence, or mansion house, and includes that part of a man’s property which is about or contiguous to the dwelling house; that this may be a mansion, cabin, or a tent, since either is sufficient to bring the land under the protection of the homestead law. Flowers v. United States Fidelity & Guaranty Co, supra; Merrell v. Harris, supra; Williams v. Davis, 31 Ark. 466. Similar language is used by many of the courts, and it has been held that it is not necessary that the homestead be in a compact body, but it may be intersected by highw'ays, streets or alleys, and that it is not limited in extent or quantity. unless made so by law. Whatever is impressed with the homestead character, being either necessary or convenient as the place of residence, constitutes the homestead, subject to the constitutional and statutory limits as to quantity and value.
In Upman v. Second Ward Bank, supra, the court says: “The word ‘homestead’ itself means a place of residence, which, again, implies occupancy, possession.”
Our constitutional and statutory provisions differ from' most of the states in tía! as to the rural homestead, as above stated, it does not contain express words requiring occupancy or intended occupancy, but there are several constitutions and statutes which are similar to ours in this respect. Section 51, art. 16 of the Constitution of Texas (1876), is as follows:
“The homestead, not in a town or city, shall consist of not more than two hundred acres of land, which may be in one or more parcels, with the improvements thereon; the homestead in a city, town or village, shall consist of lot, or lots, not to exceed in value five thousand dollars, at the time of their designation as the homestead, without refer ence to the value of any improvements there on; provided, that (he same shall be used foi the purpose of a home, or as a place to exer eise the calling or business of the head of a family; provided, also, that any temporary renting of the homestead shall not change the character of the same, when no other homestead has been acquired.”
In a note to section 2, art. 12, Williams’ Constitution, it is said:
“All this section is taken from Texas (1876) 16, 50, except the clause providing for the mortgaging of the homestead, which is patterned after Kansas (1859) 15, 9. * * *i>
In all probability section 1, art. 12, was likewise patterned after section 51, art. 16 of the Texas Constitution. This section has been many times construed by the Supreme Court of Texas, and it has been uniformly held that there can be no rural homestead in that state “unless the head of the family resides, or intends to reside, on some part of the land claimed.” Exall v. Security Mtg. & Trust Co., 39 S. W. 959; Wilkerson v. Jones, 40 S. W. 1046; Steves v. Smith, 107 S. W. 141; Johnson v. Burton, 87 S. W. 181; Murphy v. Lewis, 198 S. W. 1059; Stanley v. Greenwood, 24 Tex. 224; Franklin v. Coffee, 18 Tex. 413; Houston & G. N. R. R. Co. v. Winter, 44 Tex. 597. In the last named caso, in construing the constitutional provision of 1869, the court said:
“The Constitution exempts from forced sale ‘the homestead of a family not to exceed two hundred acres of land.’ (Const., 1869, sec. 15, art. 11.)
“It was first introduced in the Constitution of 1845, and has been reinserted in every Constitution adopted since that time.
“If the homestead is more than two hundred acres of land, then only that quantity of it is secured; and if it be that or less, then all of it is secured. It is not defined in any of the Constitutions, nor are its qualities, attributes, or shape expressed further than in the use of the words ‘homestead of a family not to excged two hundred acres.’ That would imply that it was thought to be something that could be known without any further description. It is a definite, ostensible object, to the extent of being the place, which is made the home of the family. It has had some legislative interpretation. The act of 1839, in which it originated,, described it as ‘fifty acres of land, or one town lot, including his or her homestead and improvements, not exceeding five hundred dollars in value.’ (Hart. Dig., art. 1270.) So, too, the act of 1866 describes it as ‘two hundred acres of land, including his or her homestead.’ (Paschal’s Dig., art. 6831.) Homestead is defined to be ‘the place of the house,’ ‘the mansion house, with adjoining land.’ (Worcester’s Die.; Bouvier’s Law Die.)
“It has received judicial interpretation in many respects. ‘A man’s homestead must be his place of residence: the place where he lives.’ (Philio v. Smalley, 23 Tex. 502.) In the case of Franklin v. Coffee, Chief Justice AYheeler, in describing what is not a homestead, says: ‘In this case there was no house or home upon the land. He had made no preparation or done no acts which would evince a fixed intention and purpose to select and appropriate the place as a home.’ (18 Tex. 417.1 On the contrary, in the case of Stone v. Darnell, such acts were done as were said to indicate the intention to appropriate the place as a home, and, although not a home literally when levied on but being such at the'sale, it was exempt as a homestead. (20 Tex. 15.) The use made of the land may determine its character as part of a homestead or not, as well as its proximity to or remoteness from the residence or mansion house. (Pryor v. Stone, 19 Tex. 373, 374; Methery v. Walker, 17 Tex. 594.) Such use is an' object of observation, which indicates and is'notice, of appropriation for homestead piirposes.”
The Constitution of the state of Florida (1885)' contained this provision: “A homestead to the extent of 160 acres, of land, or, the half of one acre within the limits of any incorporated city or town, owned by the head of a family residing in this state, together with one thousand dollars’ worth of personal property, and the improvements on the real estate shall be exempt from forced sale' under process of. any court, and the real estate shall not be alienable without the joint consent of husband and wife when that relation exists.” It will be noted that this provision does not, in express terms, require occupancy, but in Oliver v. Snowden, 18 Fla. 823, 43 Am. Rep. 338, the court, after thoroughly discussing the meaning of the word “homestead,” said:
“Our Constitution, speaking of a homestead and failing to define the word, leaves its definition to the ordinary rule of construction which is that it is to be taken and applied according to the common and popular apprehension of its meaning, which is clearly given in the foregoing citations. It is scarcely possible that it can be misunderstood.”
See, also, Murphy v. Farquhar, 39 Fla. 350, 22 South. Rep. 681, and Matthews v. Jeaele, 61 Fla. 686.
The homestead statutes of Alabama, prior to 18S6, contained these words: “Owned and occupied by any resident of this state.” This phrase was omitted by the codifiers in 1886. and it was contended in Turner v Turner, 107 Ala. 465, 54 Am. St. Rep. 110, that because of their omission, occupancy was dispensed with. The couct '•.(■.Id to the contrary, however, saying:
“Homestead ex vi termini means the family seat or mansion, and the change of verbiage in our statute by the codifiers, in compiling the Code of 1886, whereby they omitted from section 2507 the phrase ‘owned and occupied by any resident of this state’ was not intended to affect the well-settled rule recognizing actual occupancy, except in the single case stated, as an essential condition of a valid homestead exemption.”
In Meisner v. Hill et al., 92 Neb. 435, 138 N. Y, 583, the court, in the first paragraph
¡fof
the syllabus, held:
“Our statute uses the term homestead in its commonly accepted meaning — the house and land where the family dwells.”
We deem it unnecessary to elaborate, if indeed it is possible, upon the meaning of the word “homestead,” for we agree with the authorities which hold that it has both a popular and a legal signification; that its popular and legal meaning is the same as hereinbefore defined, and that the word “homestead,” as employed in section 1, art. 12 of our Constitution, is to be taken and applied according to the common and popular understanding of its meaning, which is in accordance with the ordinary rule of construction. Therefore, it is our opinion that where, as in this case, the head of a family in this state is the owner of but one tract of land (not within the limits of any city, town, or village) consisting of not more than one hundred and sixty acres, the fact of ownership alone is not sufficient to impress the land with the homestead character where said owner does not reside thereon, never has, and has made no preparation nor evinced any intention of so doing. This conclusion is supported, we think, by the language of the last proviso of the section, to wit: “That any
temporary renting of tire homestead shall not change the character of the same where no other homestead has been acquired.” In Hedg-peth v. Hudson, 61 Oklahoma, 160 Pac. 604, it was held, and we think correctly, that this proviso obviously referred to both rural and urban homesteads. The language of this proviso ciearly imports that the land claimed as a homestead must have been impressed with the homestead character, and that when so impressed any temporary renting thereof will not change such character when no other homestead has been acquired.
Lastly, it is contended that under section 2, art. 22 of the Constitution, the Simmons lease is invalid. This provision of the Constitution prohibits the creation or licensing in this state of any corporation “for the purpose of buying, acquiring, trading, or dealing in real estate other than real estate located in incorporated cities and towns and as additions thereto”; and further provides that no corporation doing business in this state shall “buy, acquire, trade, or deal in real estate for any purpose except such as may be located in such towns and cities and as additions to such towns and cities, and, further, except such as shall be necessary and proper for carrying on the business for which it was chartered or licensed; nor shall any corporation be created or licensed to do business in this state for the purpose of acting as agent in buying and selling land.”
We do not think this section is susceptible of the construction that a corporation is prohibited from acquiring leases to prospect land for oil and gas, .and since no authority is cited which, in our opinion, supports the contention, it cannot be sustained.
It follows that the judgment decreeing that Owen W. Bland had no right, title, or interest in and to the land involved in this action was correct and is affirmed; but that part of the judgment cancelling the lease of the plaintiff in error, W. S. McCray, was erroneous, and this cause is therefore reversed and remanded, with directions to the trial court to set aside that part of the judgment rendered against the said W. S. McCray and to render judgment in accordance with the views herein expressed.
HARRISON, PITCH,FORD, JOHNSON, McNEILL, HIGGINS, and BAILEY, JJ„ concur; OWEN, C. J., and KANE, J., dissent.