In a petition for rehearing filed herein, the appellees, Gillem and Indian-Tex Petroleum Company, insist that in the state of the record in this case, the deed from Gillem to Moore must be construed as granting merely a royalty interest, instead of being held to be a conveyance of the minerals. The petition in the original suit avers that the deed in question was a conveyance, but goes on to say that "it was the intention of the said William and Esta Gillem, notwithstanding the language quoted from their deed aforesaid, . . . to convey only the undivided one-half or the royalty," etc. Appellees say that as they did not traverse this allegation concerning the intention of the Gillems nor a later allegation that Moore and Swope were the assignees of an undivided one-half of the royalty and no proof was offered concerning them, such allegations must be accepted as true. Appellees are in error, though, when they say they did not traverse these allegations. By an agreed order entered on the 25th of July, 1924, and found on page 449 of the record, it is recited: "The affirmative matters in all pleadings by either party to this action not heretofore responded to are now traversed of record." It thus appears that these allegations were put in issue and that the appellees denied that the Gillem deed, if executed, was an assignment of royalties and not a conveyance of the minerals. Further, it will be observed that the petition, if the pleader had that right, did not seek a reformation of the conveyance to conform to the alleged intention of the grantor, nor did it allege that Moore, the grantee, intended the deed to be other than a conveyance of the minerals. *Page 303 We adhere to the construction given this deed in the original opinion. See Gillespie v. Blanton, ___ Ky. ___, ___ S.W. ___. (Jan. 26, 1926.) But it is urged that as appellant was seeking to quiet its title, it devolved upon it to bring Moore and Swope before the court, and as it failed to do so, its action should have been dismissed. It must be remembered, however, that the appellees, Gillem and Indian-Tex Petroleum Company, were by counterclaim also seeking to quiet their title. It then became as much their duty to get Moore and Swope before the court as it was that of the appellant. As the court was called upon to settle the question of title and no decision it would make would be binding on Moore and Swope, and as it was necessary that some binding decision on Moore and Swope be made in order to finally quiet the conflicting claim of the parties to this litigation, it was and is plainly within the province of the court to require that Moore and Swope be brought before it to the end that a final and binding judgment may be rendered. Cf. Civil Code, section 28.
The petition for a rehearing is overruled.