I dissent. This was originally written as the opinion of the Court and is filed herein, with minor changes and additions, as my dissent.
This is an appeal from an order of the District Court of Smith County, Texas, sustaining the pleas of privilege separately filed by W. E. West and wife, Willie B. West, wherein they were joined as defendants by plaintiff-appellant, N. A. Andretta, in a suit against West and wife and the Superior Oil Company, a California corporation, hereinafter referred to as “Superior.”
On March 22, 1943, W. E. West, by royalty deed conveyed to S. H. Jenkins, an undivided ¼ royalty interest in all oil, gas and other minerals mined or produced from a 100-acre tract of land, more or less, situated in Van Zandt County, Texas, for a term of 20 years from date of said royalty deed and so long thereafter as oil, gas or other minerals are produced or mined from said land. On March 25, 1943, Jenkins conveyed the identical royalty interest to appellant. Prior to the execution of the above royalty deeds West and wife executed an oil, gas and mineral lease covering the same tract of land to George J. Lack, which lease was subsequently assigned to Superior. Superior, during the life of the lease and prior to August 21, 1944, drilled a well on a tract of' land adjoining the West 100-acre tract and secured production thereon. On August 31, 1944, West and wife entered into a contract and agreement with Superior wherein Superior contracted to pay to West and wife a lieu royalty in cash equivalent to ⅛ of the proceeds from the sale of oil produced and sold from the well on the adjoining tract. This contract was entered into for the purpose of preventing Superior from having to offset the well on the adjoining tract to that of West and apparently to save the expense of drilling such well.
*775Appellant filed his suit alleging the above facts and further alleging that Superior had paid West in excess of $28,000 under the lieu royalty contract and that he was entitled to judgment against the defendants for j4 of the sum so paid. West and wife filed their separate pleas of privilege in statutory form, without any specific allegations of defense, and relied upon Subdivision 14 of Article 1995, V.A.T.C.S., in support of their contention upon the trial and rely on the same in this Court.
The pleas of privilege were controverted and appellant relied upon Subds. 27 and 29a of Article 1995, V.A.T.C.S., to maintain venue in Smith County. Upon a hearing of the pleas of privilege, the execution of the royalty deeds, lease and lieu royalty contract were stipulated and certified copies of the royalty deeds, lease and lieu royalty contract were offered in evidence without objection. It was further stipulated that more than $4,000 had been paid by Superior to West and wife under the terms of the lieu royalty contract. It was further stipulated and is admitted that the land described in the royalty deeds was situated in Van Zandt County. An-dretta has appealed and brings forward one point of error complaining of the action of the trial court in sustaining the pleas of privilege on the ground that Subds. 27 and 29a, supra, are applicable, and challenges the contention of appellees that Subd. 14, supra, is applicable.
First, it becomes unnecessary to determine whether or not Subd. 14, supra, is applicable in this case. The Subd. reads as follows:
“Suits for the recovery of lands or damages thereto, or to remove in-cumbrances upon the title to land, or to quiet title to land, or to prevent or stay waste on lands, must be brought in the county in which the land, or a part thereof, may lie.”
Appellees state in their brief the following:
“In order to avoid the mandatory requirement of Subdivision 14 of the venue statute ‘that suits involving the title to land or based upon the title to land must be brought in the county where the land is located.’ ”
If it was the intention of appellees to be quoting from the statute, they inadvertently included the phrase “or based upon the title to land.” That phrase is not contained in the statute.
In the case of Lake v. Reid, Tex.Civ.App., 252 S.W.2d 978, 981, no writ history, the court had occasion to discuss Subd. 14 at length. This was a suit by and between co-tenants and some of the other co-tenants’ lessees involving a surface lease on a 2-acre tract of land situated in Rusk County. Some of the defendants filed pleas of privilege to be sued in Smith County and one or more defendants resided in Rusk County where the land was situated. In passing upon the application of Subd. 14 and the rule applicable in determining the nature of the suit, the court said:
“We will consider first whether plaintiffs below may maintain venue in Rusk County under Subd. 14 of Art. 1995, R.S. of Texas, providing that suit must be brought in the county where the land or a part thereof may lie, if such suit is (1) for the recovery of lands, or (2) damages thereto, or (3) to remove incum-brances upon the title to land, or (4) to quiet title to land, or (5) to prevent or stay waste on lands. To maintain venue in the county of suit under Exception 14 as against a plea of privilege, the plaintiffs must show that the nature of the suit concerns land in one or more of the five particulars set out above, and that the land or a part thereof is in the county. It is not necessary, as in some other exceptions to exclusive venue, to show by proof that a cause of action in fact exists. 43 Tex.Jur. p. 819, Sec. 90; *776Id. p. 852, Sec. 119; Allison v. Yarborough, Tex.Civ.App., 228 S.W.2d 930; Pickens v. Harrison, Tex.Civ.App., 231 S.W.2d 812; Cox v. Palacios, Tex.Civ.App., 188 S.W.2d 688; First Nat. Bank v. Guyer, Tex.Civ.App., 40 S.W.2d 212; Dees v. McDonald, Tex.Civ.App., 36 S.W.2d 301; Smith v. Abernathy, Tex.Civ.App., 6 S.W.2d 147 (C.C.A.). The court in such case may decline consideration of any question of liability by way of proof. Pickens v. Harrison, supra.
"The nature of the suit must be determined solely from the petition, and is a question of law. Klein v. Sibley, supra [Tex.Civ.App., 203 S.W.2d 239]; Smith v. Abernathy, supra; First Nat. Bank v. Guyer, supra; Dees v. McDonald, supra; 43 Tex.Jur., p. 862, Sec. 119. In this case the proof showed by stipulation that the land is in Rusk County. It remains to determine from the petition the nature of the suit.” (Emphasis added.)
Upon a careful examination of appellant’s petition and the prayer thereto, Subd. 14 is not applicable for the following reasons: (1) It is a suit to determine whether or not appellant is entitled to an undivided ¼ of the lieu royalty set out in the contract by and between Superior and appellees; (2) appellant’s title to the property is not questioned; therefore it is not a suit for the recovery of land, or damages thereto, or to remove encumbrances upon the title to the land, or to quiet title to the land, or to prevent to stay waste on land.
The prayer to appellant’s petition reads as follows:
“Wherefore Plaintiff prays that the Defendants be cited to appear herein and that after trial Plaintiff have and recover (the) sum of Seven Thousand Two Hundred Five Dollars and Twenty Cents ($7,205.20), together with interest thereon at the rate of six per Cent- (6%.)' from .the respective dates upon which such payments of lieu royalty should have been made to Plaintiff, together with Plaintiff’s reasonable attorney’s fees, court costs and such other and further relief to which Plaintiff may be justly entitled.”
From the allegations in the petition and the prayer it is definitely clear and certain that the suit is one to determine the rights of the parties under the Superior and West contract.
I find in the transcript some special exceptions and answer filed by appellees, subject to their respective pleas of privilege, in which I think the appellees admit that this is a suit upon the contract between Superior and West. Special Exception No. 1 reads as follows:
“These defendants except to plaintiff’s original petition because the same is insufficient in law in that it is an attempt upon the part of the plaintiff to take advantage or to reap the benefits of the terms of an agreement and contract made between the Superior Oil Company and these defendants which was not made for the benefit of the plaintiff, and there are no allegations within said petition to apprise these defendants under what theory he should claim the benefits of a private contract, and of this exception defendants pray judgment.” (Emphasis added.)
Then, in the transcript I also find the special exceptions and answer of Superior in which the following admission is made:
"Plaintiff sues for a portion of the monies paid by this defendant to its co-defendant W. B. West and wife under the terms of said agreement * * *_» (Emphasis added.)
The agreement referred to is the contract between Superior and the Wests to pay the lieu royalty.
Next, I come to the question whether or not Subds. 27 and 29a, supra, are ap*777plicable. It is undenied, that Superior is a foreign corporation. The evidence is abundantly sufficient to show that Superior had an agency or representative in Smith County at the time of the filing of the suit. Superior was not a resident of Smith County at the time and I would hold that suit could be maintained against Superior in Smith County under Subd. 27, supra. The suit being maintainable to fix venue in Smith County where no defendant resides or is domiciled under Subd. 27, supra, then Subd. 29a, supra, is applicable. In the case of Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900, 901, the court said:
“Subdivision 29a, supra, is purely ancillary to other exceptions to Article 1995, and can never be invoked to fix venue in a given county independent of some one of those exceptions. It relates only to suits brought in a county where no defendant resides or is domiciled, but which can be maintained there against one defendant under some other exception of that article. Pioneer Bldg. & Loan Ass’n v. Gray, supra [132 Tex. 509, 125 S.W.2d 284]; Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347.” (Emphasis added.)
In the case of Ladner v. Reliance Corp., Tex. 293 S.W.2d 758, at page 764 (cited by the majority), the Supreme Court went further ,than indicated by the majority in defining “necessary parties” and said:
“ * * * Where the plaintiff, if he recovers, zvill be entitled to a joint judgment against two defendants and the suit is maintainable where brought as to one of the defendants under another subdivision of Art. 1995, the other defendant is a necessary party within the meaning of Subdivision 29a.” Citing Commonwealth Bank & Trust Co. v. Heid Bros., 122 Tex. 56, 52 S.W.2d 74, and Ramey & Mathis v. Pitts, 149 Tex. 214, 230 S.W.2d 211. (Emphasis added.)
Under the pleadings in the case and this holding of the Supreme Court, West and wife are necessary parties to. this suit, Further, if appellant recovers ¼ of the royalty provided for in the lieu royalty contract, for which he sues, I am unable to understand why West and wife are not necessary and indispensable parties to this suit, because it would affect their interest in the contract, 32 Tex.Jur. 13, Sec. 9. Failure to join them would be fatal. 32 Tex.Jur. 128, Sec. 88.
With reference to the notice required in the lease, they are matters of proof and affirmative defense. It is not necessary that such matters be pleaded by appellant. If such notices were not given, appellees and Superior may have to plead and prove such facts or waive them. Besides, these are matters that go to the merits of the case and should not be considered on a question of venue.
I would reverse and render the judgment of the trial court.