In this action plaintiff in error, plaintiff below, filed his suit to remove a cloud on the title to real estate, same being a conveyance executed by plaintiff's grantors, J.R. Jelks and Mattie Jelks, his wife, to defendant in error, R.F. Thweatt.
Defendant filed answer and cross-petition, and in his cross-petition asked that said conveyance be held by the court to be sufficient in form to convey and invest in him forever one-half of all the oil, gas, and other petroleum products in and under said lands, with the right of ingress and egress upon the surface for the purpose of mining, drilling, boring, and removing the same; or, in alternative, if the conveyance be not sufficient in form to convey said rights, that such instrument be reformed to express and convey the intention of the parties thereto, and that it be held and considered by the court to vest in defendant one-half of the mineral estate in and under said lands and premises, including oil, gas, and other petroleum products.
The cause came on for trial, and the court entered its judgment reforming said conveyance in accordance with the prayer of defendant's cross-petition.
The conveyance in question is as folllows:
"Know all men by these presents, that we, J.R. Jelks and wife, Mattie F. Jelks of Grady county, Okla., for and in consideration of the sum of $1,500 to us in cash paid by R.F. Thweatt, of Grady county, Okla., the receipt of which is hereby acknowledged, do hereby sell, convey, assign, and set over to said R.F. Thweatt an undivided one-half interest in and to the royalty on and from all oil and gas leases on the south one-half of the northeast quarter of the northeast quarter and the southeast quarter of the northeast quarter and the southeast quarter of section 26, township 5, range 7 in Grady county, Okla.; that is to say, for the consideration aforesaid, we sell, assign, convey, and deliver to said R.F. Thweatt a one-half undivided interest in and to all the oil and gas rentals which may be coming to us, or either of us, on the above-described lands and premises, or any part thereof, it being the intention of this instrument to assign, convey, and set over to said R.F. Thweatt a one-sixteenth (1-16) interest in and to all the oil and gas produced on and from the above-described lands, or any part thereof under and by virtue of any and all oil and gas leases now existing on said land or hereafter executed on same from this date.
"To have and to hold unto the said R.F. Thweatt, his heirs, executors, administrators, and assigns forever.
"Witness our hands this the 2nd day of May, 1921."
The record discloses that plaintiff purchased by warranty deed from J.R. Jelks and Mattie F. Jelks, his wife, the land in controversy, which deed was dated August 23, 1922. The instrument in question was executed by J.R. Jelks and Mattie F. Jelks, his wife, to defendant on the 2nd day of May, 1921, and the same was of record prior to the date of the purchase of said land by plaintiff. The court found, and the record supports such finding, that plaintiff had actual and coustructive notice of said instrument and all the rights conveyed by said instrument to the defendant.
The majority opinion, at page 195 of 150 Okla., holds as follows:
"The evidence did not justify the court *Page 197 in decreeing a reformation of the instrument conveying a sale of the royalty to that of a mineral deed. A close scrutiny of the evidence will reveal that each and all the witnesses say that it was a sale of the royalty, but by their construction they attempt to infer that the instrument should be considered as a mineral deed."
The instrument sought to be reformed is a mineral deed; however, it is immaterial what you call the instrument conveying mineral rights in real estate, a mineral assignment, grant, deed, or lease. It is the interest conveyed that is material.
The majority opinion, at page 196 of 150, Okla., holds:
"The sole question presented by the plaintiff is that the instrument is void and invalid. We do not think so. The instrument was of record at the time the plaintiff bought the land and whatever rights that may arise by reason of any production of any oil and gas may then be determined."
The majority opinion reverses the judgment of the court, with directions to set aside the decree reforming the conveyance, and ordered the petition dismissed, and further ordered defendant's cross-petition be dismissed without prejudice.
I am of the opinion that, on the issues joined, this court should have at this time determined the rights of the parties. This conveyance was of the value of $1,500, the purchase price paid for same, and is a valuable right, and the instrument so presented to this court for construction should be construed by this court. The defendant may wish to sell or convey his interest, and should on the issues joined have the instrument construed.
I am of the opinion, limited to its four corners, the conveyance is a valid and perpetual assignment and sale of an undivided one-half interest in and to the oil, gas, and other minerals in and under said premises.
I agree with the majority opinion that the same should not be reformed, for the reason that the instrument is sufficient within itself to convey the interest sought to be conveyed and purchased from plaintiff's grantors by defendant.
Plaintiff contends that the instrument does not convey any interest in the premises. The majority opinion holds this contention is not well taken.
The defendant asks that the instrument be construed that his rights might be preserved, and under the facts in this case he is entitled to have this court pass upon that question.
In my opinion, the judgment of this court should be that the instrument, as executed, conveyed an undivided one-half interest in and to rentals, royalties, and all oil, gas, and other mineral rights in and under said premises.