This suit was brought to recover commissions due under a contract. Defendant W. H. Sorenson was granted a summary judgment. Plaintiff C. D. Allen brought suit against defendants, W. H. Sorenson and H. Curtis Plumly, Jr., upon the following contract.
“Oil Producer
H. CURTIS PLUMLY, JR.
41S American National Bank Building
Beaumont, Texas
October 23, 1957
Mr. C. D. Allen
Allen Drive
Beaumont, Texas
Dear Mr. Allen:
Please consider this letter as authorization for you to act as agent for the partnership of Plumly and Sorenson to purchase all lands owned by the McFaddin interests in the Port Acres area.
We offer you one hundred dollars per acre for approximately 914 acres and agree to assign to you a 1/64 overriding royalty under the entire tract for acting as a broker in this transaction.
Yours very truly,
/s/ H. Curtis Plumly, Jr.
H. CURTIS PLUMLY, JR.”
Plaintiff alleged that defendants were .partners or, in the alternative, that defendants were engaged in a joint venture. Plaintiff further alleged that he had performed his part of the agreement by procuring certain oil and gas leases and was entitled to recover a commission and overriding royalty.
The controlling point in this case is to determine whether a person must be licensed under the Real Estate License Act in order to recover commissions for procuring oil, gas and mineral leases. It is undisputed that plaintiff was licensed under the Securities Act and not under the Real Estate License Act.
Article 6573a, Vernon’s Ann.Civ. St., is designated as “The Real Estate License Act”. This act provides that it is unlawful to engage in certain businesses without a license under this act. Section 4 subd. 1(a) and (b) include the rental or leasing of real estate. Section 19 provides that no action may be brought for the collection of compensation without alleging and proving that the person performing the brokerage service was licensed under this act. It is *759well settled in this state that oil and gas beneath the soil are considered a part of the “realty”. It is also clear that under the law of this state the procuring of an oil and gas lease comes within the provisions of the Real Estate License Act. Breeding v. Anderson, 152 Tex. 92, 254 S.W.2d 377.
The only question left to determine is whether a person having a license under the Securities Act is exempt under the Real Estate License Act. This was the law prior to the 1955 Amendment to the Real Estate License Act. One of the exemptions prior to 1955, under the Real Estate License Act, was a person who had secured a license under the Security Act. When the Real Estate License Act was amended in 1955 this exemption was omitted. It is clear that a license under the Real Estate License Act is required in order for plaintiff to recover in this case. Mummert v. Stekoll Drilling Co., Tex.Civ.App., 352 S.W.2d 526.
This court is not holding that plain-] tiff was required under the law to have a license under both the Real Estate License Act and the Security Act. It is unnecessary to decide whether or not the requirement of licenses under both Acts would be unconstitutional. The procuring of the original leases, as alleged by plaintiff, did not involve the sale of securities. The original leases were not “securities”. Culver v. Cockburn, Tex.Civ.App., 127 S.W.2d 328; Herren v. Hollingsworth, Tex., 140 Tex. 263, 167 S.W.2d 735.
Plaintiff also contends that the trial court erred in granting the motion for summary judgment because plaintiff had alleged that he was entitled to recover upon the theory of “constructive trust”. The contract in this case did not make plaintiff and defendant joint adventurers. Brown v. Cole, Tex., 155 Tex. 624, 291 S.W.2d 704. The principal case relied upon by plaintiff to support his position as to “constructive trust” is Omohundro v. Matthews, Tex., 161 Tex. 367, 341 S.W.2d 401. The Supreme Court held that a constructive trust was used to adjust rights between partners and between joint adventurers. This rule has no application to this case. Mum-mert v. Stekoll Drilling Co., supra. The point is overruled.
Affirmed.