(concurring in part — dissenting in part).
I am prepared to agree that operating rights in the North 40 should be awarded to the Ashley Valley Oil Company; and also in the awarding of 1-1/8% royalty in oil, not gas, to Meagher instead of 2% awarded by the lower court.
I am not prepared to hold that the so-called Release (Exhibit A-30) signed by Stock on October 21, 1944 was intended to be a conveyance of Paul Stock’s interest in the lease of June 4, 1924 as the same was modified by the Modification Agreement of May 21, 1927, nor that it was anything but a “Release” of Stock’s interest in the lease of 1924.
I concur in the holding that the two-thirds royalty interest of Meagher cannot be adjudicated in this action.
I concur as to the conclusion that no error was committed by the lower court allowing Meagher to amend so as to attack Stock’s alleged interest by pleading title acquired four days after commencement of this action because issues had not then been joined and that no new cause of action was introduced by permitting Meagher to amend his reply. Also that Meagher could continue as plaintiff after he had assigned his interests to his children.
I agree that the charge that Meagher was guilty of laches in pursuing the present action and that the charges of fraud by Meagher have not been sustained by the evidence and that technically there is a consideration for the so-*137called Release, whatever may be its extent and nature, but am not prepared to hold that it was intended to be nor was an instrument of conveyance, or if so that it conveyed Stock’s interest in the lease of June 4, 1924 modified by the Modification Agreement of May 21,1927, there being doubt that Stock acquiesced or agreed with such modification.
CROCKETT, J., concurs in the result.