concurring in the result only.
I concur in the result only. I cannot join in the opinion as a whole because of what appears to me to be undue speculation as to the ultimate outcome and the legal principles applicable. The only question in *695this case is whether the default judgment should be set aside so as to give the defendants Spaders an opportunity to present their case on the merits. There are factual issues to be resolved and it would appear that the legal principles to be applied will be of first impression in this state. The pleadings on which the trial judge acted in denying the application to set aside the default judgment raise disputed questions of fact, and the outcome of the case depends upon the resolution of the fact issues and the determination of what principles of law are to be applied. Only a possibly meritorious defense is pleaded.
It is undisputed in the pleadings that when the plaintiff Beren Corporation took the oil and gas lease from the Walkers, it did so from persons who were then holders of 100 percent of the record legal title to the oil and gas interests underlying the land in question. At that time, however, there was of record the contract from Millers to Spaders for sale of the land which contained no exceptions or reservations of oil and gas interests. A deed from the Millers containing no exceptions of a one-half interest in the oil and gas underlying the land was in escrow. In that deed the grantee was undesignated. Spaders assigned the contract to Walkers and in the assignment there was a provision that Spaders would retain “one-half interest in and to the oil and gas,” et cetera. When the transaction was completed the deed in escrow went directly from Millers to Walkers. We do not know exactly why the transaction was completed in this fashion rather than by the insertion of Spaders’ name in the deed in escrow and then having the Spaders make a deed to Walkers containing an appropriate exception of one-half of the oil and gas rights. The pleadings raise a factual question as to whether or not it was ever intended that Spaders ever become the owner of any interest in the premises, including oil and gas.
The questions which seem to be raised and which *696need resolutions, both factual and legal, are these: (1) What factual reason existed for completing the transaction directly from Millers to Walkers — was this done with the knowledge and acquiescence of Spaders? (2) Was the Beren Corporation entitled to rely on the doctrine of merger when it took the oil and gas lease from the persons who were then the record holders of the legal title to all the oil and gas interests underlying the land in question? The doctrine of merger, of course, is applicable in Nebraska. Ingraham v. Hunt, 159 Neb. 725, 68 N. W. 2d 344; Hoke v. Welsh, 162 Neb. 831, 77 N. W. 2d 659; Weiner v. Hroch, 188 Neb. 389, 196 N. W. 2d 907. (3) Ought Spaders, so far as the Beren Corporation is concerned, be treated as a stranger to the title for the purpose of the application of the doctrine of merger? An exception in a conveyance cannot under the general rule be made in favor of a stranger to the conveyance. Bauer v. Bauer, 180 Neb. 177, 141 N. W. 2d 837; 6 Thompson on Real Property, § 3091, note 84, p. 787. (4) If the purported reservation in the assignment is to be given effect, ought it only to be as between Spaders and Walkers, but subject to the Beren Corporation’s oil and gas lease?
So far as my researches have disclosed, the questions here presented have never been answered in this state. The Colorado case which is heavily stressed in the majority opinion may not be applicable because in that case there was no intervening oil and gas lease taken from the record title holder.