Full opinion text
Mr. Justice Sharp delivered the opinion of the Court. This case is before us on motion for rehearing. The original opinion is reported in 132 S. W. (2d) 553. After a careful consideration of the motion and the many able briefs filed by counsel for the litigants as well as by amici curiae, we have reached the conclusion to witdraw the original opinion and substitute the following: The Continental Oil Company, the East Texas Refining Company, H. L. Hunt, and P. G. Lake filed this suit against G. G. Turner and wife, Sina A. Turner, and the Gulf Production Company, to recover the oil and gas leasehold estate in a certain tract of 311.72 acres of land, more or less, in Rusk County, Texas. Plaintiffs claimed title under an oil and gas lease from G. G. Turner and wife to C. M. Joiner, Trustee, dated April 7, 1927. The Gulf Production Company claimed title under a lease executed by G. G. Turner and wife to J. W. Pevey, dated July 25, 1930. The case was brought in the form of an action in trespass to try title, but plaintiffs specifically pleaded the Turner lease of April 7, 1927, and compliance with its terms, as the source of their title. The case was tried before a jury, and in response to findings of the jury the trial court entered judgment in favor of the plaintiffs. The Court of Civil Appeals affirmed that judgment. 61 S. W. (2d) 185. This Court granted a writ of error. Defendants in error claim under a lease executed April 7, 1927, by G. G. Turner and wife to C. M. Joiner, Trustee, and filed for record April 15, 1927. On October 18, 1930, the Turners reacknowledged this lease before a different notary public. Gulf Production Company claims under a lease executed by Turner and wife to J. W. Pevey, dated July 25, 1930, and filed for record August 5j 1930. Which of the two leases is superior, is the question here presented for decision. The jury found': (1) That G. G. Turner and wife prior to April 7, 1928, accepted from Dan Cameron syndicate interest certificates purporting to cover the 80-acre Joiner Discovery Oil Well tract, in satisfaction of the rentals payable to G. G. Turner and wife on the C. M. Joiner, Trustee, lease for the three succeeding years commencing April 7, 1928; (2) that G. G. Turner and wife prior to August 2, 1930, the date of the purported J. W. Pevey lease, moved away from the land in controversy in this suit, with no intention of returning and occupying same as their homestead; (3) that the Continental Oil Company, the East Texas Refining Company, H. L. Hunt, and P. G. Lake, at the time of the purchase of the interest claimed by them in the property in controversy, did not know, and could not have known by the exercise of ordinary inquiry, of any defect in the title to the land. G. G. Turner and wife executed to C. M. Joiner, Trustee, an oil and gas lease on 311.72 acres of land, above described. It was in the usual form, and was to run for five years, and as long thereafter as oil or gas might be produced. This lease was acknowledged by Turner and his wife in statutory form, was dated April 7, 1927, and was filed for record. The lease involved here is an ordinary oil and gas lease, and is classed an “unless clause” lease. The “drilling clause” of the lease reads: “If no well be commenced on said land on or before the 7 day of April 1928 this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the First State Bank at Overton, Texas, or its successors, which shall continue as the depository, regardless of changes in the ownership of said land, the sum of Seventy Seven and 25/100 Dollars, which shall operate as rental and cover the privilege of deferring the commencement of a well for Six (6) months from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of month successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred.” Plaintiffs in error contend that the foregoing clause of the lease was never complied with, and that the lease terminated by its own terms on April 7, 1928, long before Pevey, through whom the Gulf Company claims, obtained his lease from Turner and wife. Defendants in error allege in their pleadings that they claim under the Joiner lease, and that the delay rentals had been fully paid. The testimony shows that Joiner, who was drilling an oil well in the vicinity of this land, was in hard financial straits, and that he was unable to pay the delay rentals on the lease in money; and he proposed that if the lessors would accept syndicate certificates in payment of the delay rentals, he could continue to drill the well. Defendants in error contend that Turner accepted, prior to April 7, 1928, the syndicate certificates as payment of the delay rentals, and the work continued on the well; and that the acceptance of such syndicate certificates continued the original terms of the lease. On the other hand, plaintiffs in error contend that the lease executed by Turner and wife to Joiner was on the Turners’ homestead, and that Turner did not have the right to accept the syndicate certificates as payment, in lieu of the cash specified in the lease. The issue as to whether Turner and his wife accepted' the syndicate certificates was raised; but that issue was decided, against the Turners when the jury, in response to a special issue, answered that Turner and wife had accepted such syndicate certificates in payment of the delay rentals. Plaintiffs in error also contend that it should be held, as a matter of law, that Turner did not have the right to accept such syndicate certificates in payment of the delay rentals, and continue the lease in force, for the following reasons: (1) That ff was an oral modification of the lease, and was in violation of the Statutes of Frauds and the Statute of Conveyances; (2) that such transaction violated the homstead rights of Mrs. Turner; and (3) that the provisions of the “unless” clause providing that, in the absence of drilling operations, the lease would terminate unless $77.25 was paid by a certain time, constituted a limitation on the estate; and, therefore, unless $77.25 in money was paid, the lease terminated by its own terms. The lessors had the right to accept or reject the syndicate certificates as payment of the delay rentals. If the delay rentals were not paid on or before April 7, 1928, as provided for in the lease, the lease terminated by its own terms. Prior to that date the lessors preferred that the lease should not terminate, and accepted the syndicate certificates in lieu of the money,-as payment of the delay rentals. The original lease ■ unquestionably satisfied the Statute of Frauds and the Statute of Conveyances (Articles 3995, 1288, and 1291, Vernon’s Annotated Texas Civil Statutes), and we are here dealing- with the method of payment. The lease itself provides a means by which it was to be extended. Where the rent is paid and the lease is extended, the lessee does not hold under a new or different contract, but holds under the original lease. The following rules are well established: (1) That the parties to a contract, grant, or option.may lawfully change the medium of payment, and waive strict performance of the method of payment, without violating the Statute of Frauds. Jones v. Gibbs (Com. App.), 133 Tex. 627, 130 S. W. (2d) 265; Hill v. Brown, 225 S. W. 780, id. 237 S. W. 252 (Com. App.) ; Mitchell v. Simms (Com. App.), 63 S. W. (2d) 371; Khoure Bros. v. Jonakin (Ky.), 300 S. W. 612; 16 R. C. L., p. 885, sec. 389. ' (2) That a creditor and a debtor' may make- and accept satisfactory payment of a debt otherwise than in money. As between a debtor and a creditor, anything may be agreed upon as satisfaction; and whatever is accepted by the creditor in satisfaction is effective as payment, and discharges the debt. Robson v. Watts’ Heirs, 11 Texas 764; Hinsley v. Ryon, 9 Texas 405; Yndo v. Rivas, 107 Texas 408; 180 S. W. 96; Wright v. Donaubauer (Sup. Ct.), 154 S. W. (2d) 637; 1 Williston on Contracts (Rev. Ed., 1936), p. 423, sec. 121; Mills-Willingham, Law of Oil & Gas, p. 142. (3) That the strict performance of a contract which is required to be in writing may be waived, or its terms extended, by oral agreement. Presidio Mining Co. v. Bullis, 68 Texas 581, 4 S. W. 860; Bullis v. Noyes,, 75 Tex. 540, 12 S. W. 397; Watkins v. Arnold (Civ. App., writ refused), 60 S. W. (2d) 476; Ley v. Patton (Civ. App., writ dismissed), 81 S. W. (2d) 1087; Dockery v. Thorne (Civ. App., writ refused), 135 S. W. 593; Lewis Bros. v. Pendleton (Civ. App., writ dismissed), 227 S. W. 502; Jones v. Gibbs, 133 Texas 627, 130 S. W. (2d) 265. In Restatement of the Law of Contracts, Section 224, the general rule is announced as follows: “The performance of a condition qualifying a promise in a contract within the Statute may be excused by an oral agreement or permission of the promisor that the condition need not be performed, if the agreement or permission is given while performance of the condition is possible, and in reliance on the agreement or permission, while it is unrevoked, the promisee materially changes his position.” See also State v. Tyler County State Bank (Com. App.), 277 S. W. 625; Greenwood v. Senter (Civ. App.), 44 S. W. (2d) 504. The Turners had the right to accept the syndicate certificates, if they saw fit to do so. They exercised that right by accepting such certificates in payment of the delay rentals. And this occurred on or before the date stipulated for the payment of such delay rentals. The jury found that Turner and wife accepted syndicate certificates in payment of the delay rentals prior to April 7, 1928. Consequently, the precise question for determination here is: Did the acceptance of the certificates by the Turners satisfy the payment of the delay rentals and continue in force the terms of the lease? We think that the great weight of authority supports the conclusion that it did; and we so hold. The husband has the right to collect, receive, and dispose of the proceeds of the homestead, whether the proceeds arise from a lease of the homestead or from damages or insurance paid on account of destruction or injury to the homestead. This right rests on the ground that the proceeds of a sale or lease of the homestead are mere personal property, both before and after they are received by the husband. Whiteselle v. Jones (Civ. App.), 39 S. W. 405; Alvord Nat’l Bank v. Ferguson (Civ. App.), 126 S. W. 622 (writ refused); Johnson v. Hall, 163 S. W. 399; Williams v. Corpus Christi Bank & Trust Co. (Civ. App., writ refused), 104 S. W. (2d) 56. We are not here concerned with the question as to whether a husband alone may change or extend a lease or lien on the homestead, without the joinder of his wife. Here the husband and wife joined in the creation of the lease. That lease was never changed nor extended. It simply continued in force as originally executed by them. The only question is their right to accept payment of the rentals in a form different from that provided for in the lease. The jury found that the husband and wife both joined in accepting the substitute payment. This occurred before the lease had lapsed on account of the failure to pay rentals. We think they had a right to accept payment of the rentals in the form they did, and that the lease previously executed by them continued in force without the necessity of a re-execution thereof by the husband and wife. The jury found that G. G. Turner and wife accepted the syndicate interest certificates in satisfaction of the rentals, and we cannot hold, as a matter of law, that such ■ transaction violated the homestead rights of Mrs. Turner. The plaintiffs in error contend that the lease from Turner and wife to Joiner, Trustee, being at least in part on the homestead of Turner and wife, was to that extent void, because G. P. Birdwell, the notary before whom the acknowledgments were taken, had a beneficial interest in the right so granted by the lease, thus disqualifying him to act as notary in taking the acknowledgments. The alleged interest of Birdwell arose in this manner: On March 29, 1927, before the Turners executed their lease to Joiner, Trustee, the said Joiner conveyed to W. D. Tucker a one-fourth interest in 'all leases then owned in Rusk County and a one-fourth interest in all leases thereafter to be “taken in the name of C. M. Joiner, Trustee, in Rusk County.” This instrument was acknowledged before one G. P. Birdwell, but was not recorded until August 19, 1930. On March 30, 1927, also prior to the time of any conveyance from the Turners to Joiner, the said W. D. Tucker sold and conveyed one-half of his one-fourth interest in the leases owned and to be acquired by Joiner, as Trustee, to Sam Warren, in trust for several men, including one G. P. Birdwell. The instrument showed on its face that G. P. Birdwell was one of the beneficiaries therein. This instrument was acknowledged before one G. P. Birdwell and was attached to the instrument of date March 29, 1927, above described, and recorded August 19, 1930. All of the conveyances through which G. P. Birdwell acquired an interest in the leases were executed prior to the time Joiner acquired the lease here in question, and were recorded after the Turners had executed the lease to Joiner, but before Joiner had executed the leases to the defendants in error. While the lease from Turner and wife to Joiner, Trustee, was acknowledged before one G. P. Birdwell, as were the prior conveyances of Joiner to Tucker, and of Tucker to Warren, Trustee for the benefit of one G. P. Birdwell, there is no evidence or finding by the jury that the G. P. Birdwell who took the acknowledgments of Turner and wife to the lease to Joiner, Trustee, was the same person as the G. P. Birdwell who acquired a beneficial interest in the lease through the prior conveyances from Joiner to Tucker, and from Tucker to Warren, as trustee for the benefit of Birdwell. In this connection, it should be noted that the conveyances from Joiner to Tucker, and from Tucker to Warren, as trustee for the benefit of Birdwell, are not here presented to show an outstanding superior title in Birdwell. They are being here presented merely for the purpose of showing that Birdwell was disqualified to act as notary in taking the acknowledgments of Turner and wife to the lease to Joiner, as trustee; thereby defeating the title deraigned through the Joiner lease. There is in some instances a presumption of identity of person arising from indentity of name; but this presumption is usually indulged in support of the regularity of land titles. It is never indulged in when its effect would be to negative the regularity and soundness of such a title. 30 Tex. Jur., p. 600, sec. 14, states the rule as follows: “The presumption of identity of person that arises from identity - of name is not one of universal application. It grew out of the general presumption in support of the integrity of records and the regularity of land titles, and it ceases to become operative whenever its effect would be to negative them.” See also Waller v. Edmonds, 47 Texas 468; Kelley v. Consolidated Underwriters (Civ. App.), 300 S. W. 981, 984; Corey v. Moore, 11 S. E. 114, 86 Va. 721; Jones on Evidence (2d ed., 1926), p. 607, sec. 355; Buckeye Refining Co. v. Kelly, 124 Pacific, 536, 163 Cal. 8, Ann. Cas. 1913E, 840; Bryan v. Kales, 31 Pacific, 517, 3 Ariz. 423 (affirmed 40 L. Ed. 1020, 162 U. S. 411, 16 S. Ct. 802) ; Stevenson v. Murray, 6 So. 301, 87 Ala. 422; Dorente v. Sullivan, 7 Cal. 279; Dow v. Seely, 29 Ill. 495; Liddon v. Hodnett, 22 Fla. 443 (Fla. Sup. Ct.) ; Prescott v. Tufts, 7 Mass. 209; Ellsworth v. Moore, 5 la. 486; Davis v. State, 75 So. 823; Howard v. Lock, 22 S. W. 332 (Ky. App.) ; and see annotation, Ann. Cas. 1917E, 121. Since there was no proof, nor finding by the jury, nor request for such finding, that the G. P. Birdwell who took the acknowledgments of Turner and his wife to the lease to Joiner, Trustee, was the same G. P. Birdwell who had previously acquired a beneficial interest in all leases to be thereafter acquired by Joiner; and since we cannot indulge in such presumption, there is nothing to support the contention that the notary who took the acknowledgments to the lease from Turner and wife to Joiner, Trustee, was in anywise disqualified. Nor is it shown that any fraud was practiced or any undue influence was brought to bear on either Turner or his wife in taking their acknowledgments to the lease given to Joiner. Since Turner and his wife actually signed the lease and appeared before a notary public and acknowledged same, and since the lease and the notary’s certificate were regular on their face, and in no way disclosed the interest of the notary therein, the instrument would be valid to subsequent purchasers without notice of the defect. Waltee v. Weaver, 57 Texas 569; Peterson & Fowler v. Lowry, 48 Texas 408; Pool v. Chase, 46 Texas 207; Sanger v. Calloway (Com. App.), 61 S. W. (2d) 988; Adkins-Polk Co. v. Rhodes (Com. App.), 24 S. W. (2d) 351; Wells v. Laird (Civ. App., writ refused), 57 S. W. (2d) 395; Southwestern Mfg. Co. v. Hughes (Civ. App., writ refused), 60 S. W. 684; Gore v. Citizens State Bank (Civ. App., writ refused), 88 S. W. 624) 721; Jones v. Equitable Bldg. & Loan Assn. (Civ. App., writ refused), 45 S. W. (2d) 438; Loden v. Carothers (Civ. App.), 85 S. W. (2d) 291; 1 Tex. Jur., p. 596, sec. 194; 23 Tex. Jur., p. 272, sec. 236. But even if there had been evidence that the G. P. Birdwell who took the acknowledgments of Turner and wife to the lease from them to Joiner, as trustee, was the same person as the G. P. Birdwell who acquired a beneficial interest in the lease through the prior conveyances" from Joiner to Tucker, and from Tucker to Warren, as trustee for Birdwell, the result would be the same; because the defendants in error were not charged with notice thereof. The jury found that the defendants in error had no actual notice of any defect in the title to the lease, and the evidence is sufficient to support that finding. If there was any notice at all of Birdwell’s disqualification to take the acknowledgments, it was the constructive notice arising from the recording of the conveyances through which Bird-well acquired his interest. It appears, however, if we were to indulge in the presumption of identity of person arising from the mere identity of name, that Birdwell acted as notary in taking the acknowledgment in the conveyance from Tucker to Warren, as trustee for Birdwell. In other words, the very instrument through which G. P. Birdwell acquired his interest in the lease showed on its face that the same G. P. Birdwell was both notary and grantee. He took the acknowledgment to the conveyance of the lease to himself. If we were to indulge in the presumption that the G. P. Birdwell who took the acknowledgment to the conveyance was the same person named as the beneficiary in the conveyance, then we would have to hold that he was disqualified to take the acknowledgment to such conveyance. The defect in the instrument under which Birdwell acquired his interest in the lease would be apparent on the face of the instrument, and such instrument would not be subject to recordation. 1 Tex. Jur., p. 424, sec. 15; 36 Tex. Jur., p. 439, sec. 31; Whitehead v. Foley, 28 Texas 268; McDaniel v. Needham, 61 Texas 269; Birdseye v. Rogers (Civ. App.), 26 S. W. 841; Christy v. Romero (Civ. App., writ refused), 140 S. W. 516; Salmon v. Huff, 80 Texas 133, 15 S. W. 257; Coffey v. Hendricks, 66 Texas 676, 2 S. W. 269; Holliday v. Cromwell, 26 Texas 188. If the instrument was not subject to recordation, subsequent purchasers were not required to take notice thereof, even though same was actually recorded in the deed records. 1 Tex. Jur., p. 424; sec. 15; 36 Tex. Jur., p. 487, sec. 57; King v. Russell, 40 Texas 125; Taylor v. Harrison, 47 Texas 454; Hayden v. Moffat, 74 Texas 647; 12 S. W. 820; Peters v. Clements, 46 Texas 114; Farmers Mut. Royalty Syndicate v. Isaacks (Civ. App.), 138 S. W. (2d) 228. We therefore hold that there was no such proof of a defect in the acknowledgments in the lease from Turner and wife to Joiner as to render the same invalid. Now the question presents itself whether the word “Trustee” inserted in the Joiner lease Tyas sufficient to impose upon a purchaser under such lease the duty of inquiring and ascertaining who were the beneficiaries in such lease. There is nothing in the Joiner lease which in any manner indicated that Birdwell had an interest therein. Prior to 1925 the rule prevailed in this State that subsequent purchasers of property which had been conveyed to a trustee were legally bound to ascertain who were the beneficaries in the trust conveyance. This placed quite a burden upon those who acquired property from a trustee. In 1925 the Legislature changed that rule by adopting Article 7425a, Vernon’s Annotated Texas Civil Statutes, which-reads as follows: “Where a trust is created, but is not contained or declared in the conveyance to the trustee, or when a conveyance or transfer is made to a trustee without disclosing the names of the beneficiary, or beneficaries the trustee shall be held to have the power to convey or transfer or encumber the title and whenever he shall execute and deliver a conveyance or transfer or encumbrance of such property, as trustee, such conveyance or transfer or encumbrance shall not thereafter be questioned by any one claiming as a beneficiary under such trust or by any one claiming by, through, or under an undisclosed beneficiary, provided that none of the trust property in the hands of said trustee shall be liable for personal obligations of said trustee.” Under the plain provisions of the above statute, where the conveyance was from Turner and wife to Joiner, as trustee, without disclosing for whose benefit Joiner held as trustee, the defendants in error could purchase from Joiner, as trustee, without being charged with constructive notice of Bird-well’s interest, if any, in the property. The fact that the original lease from Turner and wife to Joiner, as trustee, was afterwards reacknowledged before a different notary, after Pevey had taken a lease on the same property, in our judgment was not an admission that the o-riginal lease was void; and such act would not be a waiver of any rights acquired under the lease as originally acknowledged, nor estop Joiner and his vendees from asserting such rights. At most, it might raise an issue to go to the jury; but the jury, in finding that the defendants in error had no notice of any defect in the title, resolved that issue in favor of said defendants in error. The defendants in error further contend that, since whatever title Birdwell had in the lease emanated out of Joiner prior to the time Joiner acquired an interest therein, they, as purchasers through Joiner, were not required to take notice of the conveyances through which Birdwell acquired an interest in the lease. They cite in support of their contentions the following authorities: Breen v. Morehead, 104 Texas 254, 136 S. W. 1047, Ann. Cas. 1914A, 1285; Pomeroy’s Equity Jurisprudence, vol. 2, p. 1133, sec. 658; Copelin v. Shauler (Tex. Sup.), 6 S. W. 668; Anderson v. Farmer (Civ. App., writ refused), 189 S. W. 508; 4 Tiffany, Real Property, (3d ed., 1939), p. 653, sec. 1234; Patton on Titles (1938), sec. 45, 43 Tex. Jur., p. 652, sec. 384; 36 Tex. Jur., p. 481, sec. 52. We omit a discussion of this contention, because same is not necessary to a decision of the case. This case was submitted to a jury, and their findings were made as above indicated, and the trial judge entered judgment thereon. Both the trial court and the Court of Civil Appeals found that there was sufficient evidence to support the judgment. This Court will not set aside a judgment of the trial court, unless it can be said, as a matter of law, that there was no evidence of a probative nature to support such judgment. We have examined the statement of facts and the entire record, and have found evidence to support the judgment of the trial court. Therefore this Court is not justified in holding to the contrary. Merrell et ux v. Dorothy Hume Timmons et vir., 138 Texas 250, 158 S. W. (2d) 278; Beer v. Landman, 88 Texas 450, 31 S. W. 805; 11 Tex. Jur., p. 871, sec. 113. We shall not discuss the question as to whether or not the Turners abandoned their homestead. In view of the conclusions reached herein, that question becomes immaterial. The motion for rehearing of defendants in error is granted, and the former judgment of this Court is set aside. The judgments of the trial court and of the Court of Civil Appeals are affirmed. Mr. Judge Smedley not sitting. Mr. Justice Critz, dissenting. I most respectfully dissent from the opinion of the majority in this cause. In my opinion, the opinion written by our late Chief Justice C. M. Cureton, and reported in 132 S. W. (2d) 553, this volume 202, correctly disposes of this case. No good purpose would be served by my writing further. Opinions delivered February 25, 1942. * * * * Further motions for rehearing were overruled on June 10, 1942, with Mr. Justice Critz filing an additional dissenting opinion, as follows: Mr. Justice Critz, dissenting. When judgment was entered in this case granting the motion for rehearing filed herein by the Continental Oil Company et al, I dissented from the opinion written by Associate Justice Sharp, with the statement: “In my opinion, the opinion written by our late Chief Justice C. M. Cureton, and reported in 132 S. W. (2d) 553, this volume 202, correctly disposes of this case. No good purpose would be served by my writing further.” In view of the far-reaching effect of the rulings contained in the majority opinion on rehearing, I feel that I should make a statement of my views on the issues which' I think should control the decision of this case. As shown by the original opinion by Chief Justice Cureton, and the opinion of the majority of this Court on rehearing by Associate Justice Sharp, Continental Oil Company et al assert title in this cause under an oil and gas lease, dated April 7, 1927, from G. G. Turner and wife, Sina A. Turner, to C. M. Joiner covering a tract of 311.72 acres of land in Rusk County, Texas. The above lease is in the usual form of an “unless” oil and gas lease. It will be noted that it contains, among others, the following provisions: It states that it leases the land above mentioned: (1) “for the sole and only purpose of mining and operating for oil and gas or of laying pipe lines and building tanks, stations and structures thereon to produce, save and take care of said production.” (2) It provides that said lease “shall remain in full force for a term of five years from its date, and as long thereafter as oil or gas, or either of them, is produced from said land by lessee.” (3) It provides: “If no well be commenced on said land on or before the 7th day of April, 1928, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor or to the lessor’s credit in the First State Bank at Overton, Texas, or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of Seventy-seven and 25/100 ($77.25) Dollars, which shall operate as a rental and confer the privilege of deferring the commencement of a well for six (6) months from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively.” It is shown that the homestead of Turner and wife was a part of this 311.72-acre tract; that neither Joiner nor any of his assigns have ever drilled a well for oil or gas on this land, or erected any improvements thereon; that the sums of money required by the terms of this lease to be paid, to keep it in force after April 7, 1928, were never paid; that Joiner proposed to G. G. Turner that he take “syndicate interest certificates” in lieu of the payments in money for the three succeeding years commencing April 7, 1928, called for in the lease contract; that Turner agreed to this; and that such certificates were delivered to Turner; but no written memorandum of change in the lease contract was signed by Turner and wife, or either of them. Finally, it is shown that Turner and wife, accepted the above-mentioned “syndicate interest certificates” in payment of the delay rentals provided for in the lease contract. It will be noted that the above lease contract provides that it shall remain in force for a term of five years from its date, and as long thereafter as oil or gas, or either of them, is produced in paying quantities. It is then provided that if no well be commenced on the land covered by the lease on or before April 7, 1928, the lease shall terminate as to both parties, “unless” the lessee shall pay or tender to the lessor or to the lessor’s credit in a certain named bank the sum of $77.25, which shall operate as a rental and confer the privilege of deferring the commencement of a well six months from said date. In like manner and upon like payments or tenders, the commencement of a well could be further deferred for like periods for the same number of months successively until the end of the five-year primary period. It is settled by the decisions of this Court that the above instrument, while called a mineral or oil and gas lease, is, in law, a conveyance of an estate in land. Its effect is to sever the mineral estate from the surface estate, and convey the mineral estate to the lessee named in the contract. It is also settled by the decisions of this Court that, while an instrument of this kind is, in law, a conveyance of an estate in land, the “unless” clause operates to limit the estate conveyed. The opinion of the majority does not question, but fully recognizes the above-stated construction of this instrument, and of others of like character and import. I think it is also settled as the law of this State that the “unless” provisions in a lease of this kind are not only limitations on the grant or estate conveyed, but that the events contained or named in such provisions mark the duration of the estate granted. The estate granted either continues to exist for its primary term, in this instance five years, or it terminates before the primary term is ended according to the happening or not happening of the event or events of the “unless” provisions made a limitation upon the grant. Under the “unless” provisions of this and like leases the lessee is under no obligation to either drill a well or pay rentals. He simply has the option of permitting the lease or estate granted to terminate and cease to exist, or he can keep such lease or estate alive and in effect by either drilling or paying rentals, as specified in its “unless” provisions. When duly executed, a contract such as this expresses the agreement of the parties and definitely and completely fixes, determines, and defines the very character of the estate granted, and the method by which it will endure for the primary period, or terminate at a prior date. In my opinion, since the “unless” provisions of this contract are limitations upon the very grant itself, fix the very character of the estate granted, and mark its duration, they constitute, in fact and in law, a part of the very essence of the title created in the first instance. This being true, it is my opinion that permitting a change of such provisions to be effected in parol is to violate not only the letter, but the very object and intent of our statutes of conveyance and of frauds. Articles 1288, 1291, 3995, R. C. S. 1925. To my mind it is just as logical to say that the times named for the drilling of a well, or the payment of delay rentals, provided by the “unless” provisions of this lease contract, can be shortened or extended in parol, as it would be to say that the thing itself, provided to be done, can be so changed to something else. In fact, it appears to me that if the thing itself provided to be done can be changed to something else by a mere parol agreement, then the thing itself can be absolutely abolished in the same way, and nothing substituted in its place. I mention these matters to show the far-reaching consequences of the opinion of the majority on the rights of both lessors and lessees. Chief Justice Cureton’s opinion fully discusses the nature and effect of the “unless” clause in this instrument. Such opinion also points out that under our statutes an estate conveyed is deemed the grant of a fee simple title if a less estate be not limited by express words, or does not appear to have been granted. No one would argue that the limitation upon the estate here granted could have rested originally in parol. If not, I think that Chief Justice Cureton’s opinion fully demonstrates that such limitation cannot be altered, changed, or abolished in parol. Finally, I think Chief Justice Cureton’s opinion correctly announces the law which ought to govern this case in so far as such opinion deals with the powers to change the “unless” provisions of this written contract by subsequent parol agrees ment. I also thing that Chief Justice Cureton’s opinion correctly announces the law governing this case in so far as it deals with the power of Turner and wife to alter or change the “unless” provisions of this lease contract as to the land covered thereby which constituted their homestead, except by written instrument duly executed by both Turner and wife, and separately acknowledged by the wife. (See this volume, page 212.) Opinion delivered June 10, 1942. For the convenience of the Bar, the opinion by the late Chief Justice Cureton, as referred to by Mr. Justice Critz, is here inserted, as follows : Opinion by Mr. Chief Justice Cureton. (132 S. W., 2d Series, 553.) This case is before the Court by writ of error from the Court of Civil Appeals for the Sixth District. The opinion of that court may be found in 61 S. W. (2d) 185, and is here referred to for a general statement of the case. The Continental Oil Company, East Texas Refining Company, H. L. Hunt, and P. G. Lake, as plaintiffs in the trial court (defendants in error here), filed this suit against G. G. Turner and wife, Sina A. Turner, and the Gulf Production Company (plaintiffs in error here) to recover the oil and gas leasehold estate in a certain 311.72 acres of land, more or less, in Rusk County, Texas. The defendants in error claim title under an oil and gas lease from G. G. Turner and wife, Sina A. Turner, to C. M. Joiner, Trustee, dated April 7, 1927. The Gulf Production Company title is through and under a similar lease executed by the said G. G. Turner and wife, Sina A. Turner, to J. W. Pevey, dated July 25, 1930. At the time of the trial below the Gulf Production Company was in possession under its lease, had brought in seven producing wells, and was then drilling another, all at a cost to the company up to that time of $149,725.00. The suit was brought by defendants in error in the form of an action in trespass to try title, but they specially pleaded the Turner lease of April 7, 1927, and compliance with its terms as the source of their title. The primary question is: Which lease is to be given effect? The lease of defendants in error is in the usual form of oil and gas leases. G. G. Turner and wife, Sina A. Turner, are named as lessors, and C. M. Jomer, Trustee, as lessee. The lease sets out the field notes of the land, was to run five years, and as long thereafter as oil or gas might be produced. Both G. G. Turner and his wife first acknowledged this lease in statutory form on the 7th day of April, 1927, before G. P. Birdwell, Notary Public for Rusk County, Texas. More than three years thereafter, viz., on the 18th day of October, 1930, both G. G. Turner and his wife, S. A. Turner, again asknowledged the execution of this instrument, in statutory form, before James A. Copeland, Notary Public for Harris County, Texas. The lease was twice filed for record in Rusk County; first on the 15th day of April, 1927, and again on February 17, 1931. The “drilling clause” of the lease reads: “If no well be commenced on said land on or before the 7 day of April 1928 this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the First State Bank at Overton, Texas, or its successors, which shall continue as the depository, regardless of changes in the ownership of said land, the sum of Seventy Seven and 25/100 Dollars, which shall operate as rental and cover the privilege of deferring the commencement of a well for Six (6) months from said date. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privilege granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred.” (Italics ours.) The plaintiffs in error say that the above “unless” clause was never complied with, and that the lease terminated by its own limitations on April 7, 1928, long before Pevey, through whom Gulf Production Company claims, obtained his lease from the Turners. Defendants in error say in their pleadings that they claim “through and under said lease, and subject to the terms of said lease,” and “upon which all delay rental obligations hadI been fully satisfied and discharged.” Although Mr. and Mrs. Turner denied that anything of the sort ever took place, the jury, answering special issues, found that G. G. Turner and wife, Sina A. Turner, prior to April 7, 1928, accepted from Dan Cameron syndicate interest certificates purporting to cover the 80-acres Joiner discovery well tract (on the Daisy Bradford land), in satisfaction of the rentals payable under the lease for the three succeeding years, commencing April 7, 1928. The syndicate interest certificate transaction took place between G. G. Turner, alone and Dan Cameron, a representative of C. M. Joiner, Trustee, — Mrs. Turner not being present. Concerning the transaction, Cameron in part testified: “I called on Mr. Turner at least a week and possibly two weeks prior to the date on which the rental was due to talk to him about the rental money and Mr. Turner was up on his barn or car shed and I went out there and went up there and told him that Mr. Joiner was having work and a hard time in keeping the work up and well drilling and to pay the rentals and if he did have to continue to pay the rentals on the land down there that it would be impossible for him to continue to drill the well, because it was very difficult for him to get the money — and that the only thing he could do to keep the work going on down there was to get the folks that owned — that he had the land leased from, to accept in lieu of their rentals and in payment of their rentals the syndicate interest. ******** “That was the syndicate interest in the well he was then drilling and Mr. Turner told me that he thought a good deal of Mr. Joiner and would do anything on earth to help him come out and he expressed himself that he had a very high regard for Mr. Joiner and also he knew that Mr. Joiner had been having an awful hard time to keep this well going * * * Mr. Turner told me he was willing to accept the syndicate interest in the well for his rental and he said that there would not be any rentals anyhow if Mr. Joiner was not drilling and the rentals didn’t amount to anything to him and he was glad to accept in lieu of the rentals the syndicate interest in this well down there. ***** * “I made out Mr. Turner a syndicate interest for his rentals and delivered it to him. ******** “I had a pad of those forms like that, the original and the duplicate, and I had a carbon in between them and I made out this certificate and then I gave one copy to Mr. Turner and I kept one copy for Mr. Joiner’s records. ******** “At the time I gave him the certificate I made out a rental receipt and got Mr. Turner to sign it. ******** “At the time of the transaction with Mr. Turner he agreed to settle with me for three years rentals, from April 7, 1928. ******* H< “Mr. Turner signed the rental receipt for the three years.” The above transaction is the only basis for the claim that Joiner, Trustee, complied with the terms of the lease, and the Court of Civil Appeals held it was sufficient for that purpose. The homestead of Turner and his wife was located on the land, and had been for more than fifty years. The Court of Civil Appeals held that after the execution of the lease by the Turners they had no homestead rights whatever in or to the property, in part saying: “So the conveyance of the determinable fee by G. G. Turner and wife carried with it the exclusive right of possession, and that remaining in the Turners after the conveyance being only a right of reverter, not carrying with it a right of possession, until after the happening of the event that would terminate the estate, then no right of homestead could attach in favor of the Turners, a present right of possession being necessary for homestead rights to attach.” This holding is the basis of the court’s conclusion that the syndicate interest certificate transaction was valid. In our opinion, the terms of the lease negative any purpose to grant or to abandon the homestead or the possession of the premises, or any interest therein not necessary for carrying into effect the lease itself. The lease expressly states that Joiner, Trustee, and his vendees, could not use the “water wells of the lessor”; that “when requested by lessor, lessee shall bury all pipe line below plow depth”; that “no well shall he drilled nearer |than 200 feet to the home or bam on said premises,, without the written consent of the lessor”; and “Lessee shall pay for damages caused by all operations to growing crops on said land.” These clauses, it seems' to us, show beyond dispute that it was contemplated by the very terms of the lease itself that Turner and wife should continue in possession of their home, house, wells, barn, and continue to cultivate the land, and make such use of it as could be made, in so far as might be consistent with the exercise of the right to drill and produce oil therefrom. Moreover, as to the surface of the land, the only grant made by the Turners was in the nature of an easement that it might be employed in the production of oil and gas. That surface, and everything in the land itself, except the minerals covered by the lease, was still in their possession and was their property, subject to a reasonable use, qualified only by the express provisions of the lease, to which we have made reference. Summers on Oil & Gas (Perm, ed.), vol. 4, sec. 652. So, it cannot be said, as the Court of Civil Appeals holds, that the right of the Turners was only “a right of reverter not carrying with it a right of possession.” Quite contrary to this conclusion of the Court of Civil Appeals is a paragraph in the reply of defendants in error to the application for writ of error filed in this cause, which reads: “It has never been contended by defendants in error that they are entitled to the exclusive possession of the entire estate in the Turner land. On the contrary, the title and right of the lessors, the Turners, to the use and occupancy of the surface of the land, such as is reserved to every lessor under the ordinary oil and gas lease, has never been and is not now in dispute.” (Italics ours.) This Court has long recognized the right of a landowner to sever the surface and mineral estates, and convey the latter without conveying or destroying the former. 31 Tex. Jur., p. 547, secs. 23, 24, 25, 26, 27, p. 601, sec. 49; Humphreys-Mexia Co. v. Gammon, 113 Texas 247, 254 S. W. 296; Lemar v. Garner, 121 Texas 502, 511, 50 S. W. (2d) 769; Munsey v. Mills & Garrity, 115 Texas 469, 482, 283 S. W. 754; Grissom v. Anderson, 125 Texas 26, 30, 79 S. W. (2d) 619. The surface estate remaining in the lessor is one in fee simple, and includes the rights of possession, powers of control, occupancy, use and alienation. Authorities supra; 31 Tex. Jur., p. 556, sec. 26, p. 601, sec. 49; Summers on Oil & Gas (Perm, ed.), vol. 4, sec. 652; Ferguson v. Steen, 293 S. W. 318; Rosson v. Bennett, 294 S. W. 660; Gregg v. Caldwell-Guadalupe Pick-up Stations, 286 S. W. 1083; Humble Oil & Refining Co. v. Wood, 292 S. W. 200; Humphreys Oil Co. v. Liles, 277 S. W. 100; Praeletorian Diamond Oil Assn. v. Garvey, 15 S. W. (2d) 698 (writ refused) ; Johnson v. Phillips Petroleum Co., 93 S. W. (2d) 556; Fowler v. Delaplain, 79 Ohio St. 279, 21 L. R. A. (N. S.) 100, 87 N. E. 260; Franz Corp. v. Pifer, 295 Fed. 106, 108; Schlegel v. Kinzie, 158 Okla. 93, 12 Pac. (2d) 223; Pulaski Oil Co. v. Conner, 62 Okla. 211, L. R. A. 1917C, 1190, 162 Pac. 464. Of course, in a lease of this character the surface estate is servient to the mineral estate for the purposes of the mineral grant, but even this right is to be reasonably exercised with due regard to the rights of the owner of the surface. 31 Tex. Jur., p. 558, sec. 27; Mills-Willingham Law of Oil & Gas, pp. 250, 251, 252; Thornton on Oil & Gas (4th ed.), vol. 1, p. 249, sec. 82; 5th ed.), vol. 1, p. 235, sec. 131; Gregg v. Caldwell-Guadalupe Pick-up Stations, 286 S. W. 1083; Grubstake Inv. Assn. v. Coyle, 269 S. W. 854; Brown v. Spilman, 155 U. S. 665, 39 L. Ed. 304; Gulf Pipe Line Co. v. Pawnee-Tulsa Petroleum Co., 41 L. R. A. (N. S.), pp. 1108, 1110; Summers on Oil & Gas, supra,. It is clear to us that the Turners did retain and have such possession and ownership of the homestead property as was sufficient for the homestead right to continue to attach. 22 Tex. Jur., p. 236, sec. 164, p. 243, sec. 169; Speer on Marital Rights (3rd ed.), 468; Wheatley v. Griffin, 60 Texas 209, 211; Swearingen v. Bassett, 65 Texas 267; Lee v. Welborn, 71 Texas 500, 9 S. W. 171; Stratton v. Westchester Fire Ins. Co., 182 S. W. 4 (writ refused) ; Finley v. Wakefield, 184 S. W. 755, 758 (writ refused) ; First Nat. Bank v. Dismukes, 241 S. W. 199. Since we have determined that the Turners did continue to have a homestead estate in the land covered by the lease, it follows that the basis of the holding of the Court of Civil Appeals that Turner had the right to accept the syndicate certificates in continuation of the lease because no homestead rights existed (61 S. W. (2d) 188) passes out of the case, with the result that the conclusion of the court sustaining the validity of the transaction is necessarily erroneous. The insistence here, however, is that since Turner had the right under the law, as head of the community, to collect, receive, and dispose of the proceeds of the homestead, he had the right to accept the syndicate interest certificates. We recognize the rule that the proceeds of a sale of the homestead property, if personalty, are subject to the control of the husband. 22 Tex. Jur., p. 130, sec. 92. But here there were no proceeds. The lease here involved is an “unless lease,” and imposed no obligation on Joiner, Trustee, to either drill or pay; and upon his failure to either drill, pay, or make the deposit in the named bank, no liability of any kind arose in favor of the Turners against him; nothing was due thereunder; there was nothing for Turner to collect; and-nothing could be recovered. 31 Tex. Jur., p. 744, sec. 134 Davis v. Bussy, 298 S. W. 656 (writ refused) ; Weiss v. Claborn, 219 S. W. 884, 887 (writ refused) ; Stovall v. Texas Co., 262 S. W. 152, 153 (writ refused) ; McLaughlin v. Brock, 225 S. W. 575, 577; Jones v. Murphy, 253 S. W. 634; Summers on Oil & Gas (Perm, ed.), vol. 2, sec. 339. The text of Texas Jurisprudence cited (sec. 134), in part reads: “It is clear from the wording of the ‘unless’ clause that it does not operate to impose any duty upon the leasee either to drill or to pay delay rentals; the matter is entirely optional with him, and the lessor cannot compel him to drill nor oblige him to pay rentals.” 31 Tex. Jur., p. 744, sec. 134. (Italics ours.) That the Court of Civil Appeals misinterpreted the meaning of the ‘unless’ clause before us is plainly shown in one of the concluding sentences in its opinion, wherein the court said: “Turner’s written authority to demand money in payment of rentals did not restrict his right to- accept property in satisfaction thereof.” 61 S. W. (2d) 188. The error in this is obvious. Turner had no written authority, nor any other authority, under the lease to demand money in payment of rentals. There were no rentals due, and under the leaS[& there was no obligation due the Turners for the payment of which he could demand money. The defendants in error “do not dispute” this proposition as applicable to an “unless lease.” On page 48 of their “Reply * * to printed arguments filed by plaintiffs in error * *” in this Court, they say: “It is insisted in all the arguments that there is never any obligation to pay the rentals that, at the option of the lessee, may be paid under an ‘unless’ lease. The defendants in error do not dispute that proposition.” For the reasons stated, we are clear that Turner, under the rules of law which permit him to collect community debts, or settle obligations due the community, did not have authority to accept the syndicate interest certificates for the continuance of the lease on the homestead. The result of the failure of Joiner, Trustee, to either begin a well, pay the specified amount of money, or make the named deposit by April 7, 1928, was to i/pso facto terminate the lease, and the Turners became reinvested with the entire estate without the necessity of re-entry, declaration, or legal action. 31 Tex. Jur., pp. 744, 745, 746, sec. 134; Waggoner Estate v. Sigler Oil Co., 118 Texas 509, 520, 19 S. W. (2d) 27; Humble Oil & Ref. Co. v. Davis, 296 S. W. 285, 287 (Tex. Com. App.) ; Mitchell v. Simms, 63 S. W. (2d) 371, 373 (Tex. Com. App.) ; Weiss v. Claborn, 219 S. W. 884 (writ refused) ; Wilson v. Gass, 289 S. W. 141, 142 (writ refused) ; Morrissey v. Ambrugey, 292 S. W. 255, 256 (writ refused) ; Thornton on Oil & Gas (5th ed.), vol. 1, sec. 124; Summers on Oil & Gas (Perm, ed.), vol. 2, pp. 217, 218, sec. 337; Empire Gas & Fuel Co. v. Saunders, 22 Fed. (2d) 733, 735 (writ of certiorari dismissed), 278 U. S. 581. The “unless” provisions of the lease, therefore, are obviously a limitation on the grant; since “a limitation determines an estate upon the happening of the event itself without the necessity of doing any act to regain the estate, such as re-entry.” Thompson on Real Property, vol. 3, sec. 2092. (Italics ours.) Summers on Oil & Gas (Perm, ed.), vol. 2, sec. 337, p. 215; Waggoner Estate v. Sigler Oil Co., 118 Texas 509, 519, 520; Humble Oil & Ref. Co. v. Davis, 296 S. W. 285, 287; Caruthers v. Leonard, 254 S. W. 779, 782; Morrissey v. Amburgey, 292 S. W. 255, 256 (writ refused) ; authorities supra. Under the statutes of Texas, the estate conveyed in a grant is “deemed a fee simple, if a less estate be not limited by express words, or do not appear to have been granted * * *” R. S., Art. 1291. By reason of this statute, the intent to convey an estate in fee simple will be presumed where a less estate is not expressly and unequivocally declared. 14 Tex. Jur., p. 933, sec. 155; May v. S. & A. P. Townsite Co., 83 Texas 502, 508, 18 S. W. 958 ; Lindsay v. Freeman, 83 Texas 259, 263, 18 S. W. 727. The conditions under which the lease before us could continue, and the length of time it could endure, were, under the statute, just as much a part of the grant as the title to the oil and gas, or surface easement. It therefore appears that the “unless” provisions of the lease here involved, being words of limitation, the purpose of which is to specify “the term of continuance or iduration” of the estate, constitute an integral part of the very grant itself required by statute in order to prevent the grant from being one in fee simple. From Cameron’s testimony, quoted above, it is apparent that the agreement between Cameron and Turner. to extend the Turner lease for three years from April 7, 1928, for the syndicate interest certificates, was not in writing, but was verbal. So, what we really have before us is a parol agreement of Turner to accept the syndicate interest certificates for the three years’ rental named in the lease, a written document called a syndicate interest certificate, the contents of which we do not know, and according to the so-called duplicate in the record, a receipt for money, although no money was paid, signed by Turner, alone, but unacknowledged, for three years’ rental. Since the oral modification of the lease extended it for three years upon a new and different option and consideration to that written in the lease, changed by oral agreement the limitations written in the grant in compliance with the statute (R. S., Art. 1291), quoted above, it is obvious that it was in violation of both the Statute of Frauds and the Statute of Conveyances. R. S., Arts. 3995, 1288; 20 Tex. Jur., p. 215, sec. 6, pp. 283, 284, secs. 73, 74; Adams v. Hughes, 140 S. W. 1163, 1169 (writ refused) ; Burgher & Co. v. Canter 190, S. W. 1147; Schofield v. Pyron, 257 S. W. 350; Kistler v. Latham, 255 S. W. 983, 985. The defendants in error, under the lease as thus modified by the oral agreement, have a lease for some terms of which they must go to the original and executed document, and for others to the oral modification. It is quite elementary that in such a case the oral modification of a contract falling within the Statute of Frauds is itself within the statute. In fact, it may be correctly said that the oral modification of the written agreement creates a new contract, resting entirely in parol. 20 Tex. Jur., p. 213, sec. 6, n. 283, secs. 73, 74; Ickert v. Minor, 22 S. W. (2d) 741, 743; McDonald v. Whaley, 244 S. W. 596, 598; Gardner v. Sittig, 188 S. W. 731; Allen v. Mulkey, 19 S. W. (2d) 936, 945; Kistler v. Latham, 255 S. W. 983, 985; Adams v. Hughes, 140 S. W. 1163; Beard v. Gooch, 130 S. W. 1022; Burgher v. Canter, 190 S. W. 1147; Ford Motor Co. v. Maddox Motor Co., 23 S. W. (2d) 333, 338. This is necessarily so, because only by parol can it be ascertained what portion of the written instrument is to remain effective and what portion has been eliminated or suspended by the syndicate interest certificate transaction. So, what we really have is a parol conveyance of an oil and gas lease on the Turner lands. The jury found that the syndicate interest certificates were delivered, but this does not take the contract which now rests entirely in parol out of the Statute of Frauds. In order to do this, not only must the consideration be paid, but possession must be delivered and valuable improvements made, neither of which was done. The agreement, therefore, cannot be enforced. 20 Tex. Jur., pp. 328, 337, secs. 116 to 124; Hooks v. Bridgewater, 111 Texas 122, 229 S. W. 1114; Ward v. Etier, 113 Texas 83, 251 S. W. 1028; Bradley v. Owsley, 74 Texas 69, 11 S. W. 1152; Varter v. Portwood, 26 S. W. (2d) 422, 426; Leverett v. Leverett, 59 S. W. (2d) 252, 254 (writ refused) ; City of N. Y. Ins. Co. v. Middleton, 62 S. W. (2d) 681, 682; Francis v. Thomas, 129 Texas 579, 106 S. W. (2d) 257, 261 (Tex. Com. Appls.) The contract as modified by the oral agreement, being a conveyance of real estate without being in writing, was equally violative of the Statute of Conveyances. R S., Art 1288 ; Allen v. Allen, 101 Texas 362, 365, 107 S. W. 528; Priddy v. Green, 220 S. W. 243, 248; Texas Co. v. Tankersley, 229 S. W. 672. Defendants in error’s proposition that the acceptance of the syndicate interest certificates in lieu of money was a mere substituted method of performance, is without merit. “A substituted method of performance” necessarily presupposes a contract to be performed, and an obligation to be satisfied; otherwise, there is no “method of performance” for which some other method may be “substituted.” In the lease before us there was no obligation to be performed, and therefore no method of performance for which something else could be substituted. Joiner had an option (is is called the “lessee’s option” in the drilling clause previously quoted) to continue the lease, but he could not effectively exercise it by delivery of syndicate interest certificates, because that was not one of his options. Options must be accepted according to their terms, and leases of the character before us must be strictly complied with. 43 Tex. Jur., p. 100, sec. 62; 31 Tex. Jur., p. 759, sec. 141, p. 762, sec. 144, p. 764, sec. 145, p. 767, sec. 146. So> what actually took place was not a “substituted method of performance,” but a substitution of another option for those named in the written lease, or the incorporation in the agreement of a fourth option, resting in parol to the effect that if Joiner would deliver the syndicate interest certificates, the lease should be continued for three years. But the lease was an “unless” lease, and under it the options specified in the written document, in connection with the termination clause, were “limitations on the grant,” an integral part of the very grant itself, required by the statute (R S., Art. 1291) to prevent the passage of a fee simple title; which, of course, could not be changed by parol. The delivery of the certificates was not a “substituted performance” of the original agreement, but an original performance of the parol option attempted to be incorporated in the written document for the purpose of changing the limitations of the grant, in violation of the statutes. Defendants in error in their brief filed here on the proposition that the “unless” provisions of an oil and gas lease express a “condition subsequent,” instead of a “limitation,” (pages 49 and 50) concede that the doctrine of “substituted performance” can have no application to a grant upon a limitation. They say that a grantor “cannot trnive the results of the happening of cm event to which the duration of an estate is limited,” and (on page 48) “The grantor may waive or be estopped to assert the breach of a condition, or he may accept a substituted performance of it by parol, while he cannot do so■ in the case of a limitation.” (All italics ours.) Cases and authorities cited by defendants in error relative to parol modifications of actual obligations to pay rent, or actual obligations to pay royalties, or changing the method of paying royalties, have no application here, since these involve substituted methods of performing actual obligations; not, as here, the addition of a parol option and the substitution of an oral limitation for those written in the grant. The limitation in the lease was imposed on the grant by Mrs. Turner, the wife, and operated in protection of her homestead right; and G. G. Turner, the husband, alone, could no more enlarge, modify, or change it than he could alone make a valid grant or lease in the first instance, or change the determinable fee into a complete fee simple title, or the surface easement into a complete conveyance. The authorities declare the husband alone cannot contract for the renewal or extension of an obligation on the home