On Motion For Rehearing.
After due consideration of appellee’s forceful motion for rehearing, we adhere to the conclusion expressed in our original opinion.. We cannot agree with appellee that the holding in our original opinion that upon the undisputed evidence in this case Burns could not claim any liability on the part of appellant because of his conveyance of the land to Stribling is in conflict with the opinion of our Supreme Court in the case of Sanger v. Warren, 91 Tex. 472, 44 S. W. 477, 66 Am. St. Rep. 913. The only question decided in that learned opinion was that the common-law rule applicable to sealed instruments, which denies a grantor in a deed to an agent the right to sue an undisclosed principal in an action of covenant, is the rule in this státe. And that under this rule the appel-lee, Warren, who had conveyed the land involved in that suit, and sued to recover upon his vendor’s lien notes executed by his vendee and assumed by one Rees, to whom the land had been sold by Warren’s vendees, could recover from the agent, Rees, but not against the undisclosed principal, Sanger. It seems to us that this rule has no application in the instant case. In the cited case the vendors had no knowledge, at the time they conveyed to him, of the fact that Rees was only an agent in the purchase of the land. In this case Burns sold the land to Stribling, received the cash payment from him, and made the deed to appellant, Stribling’s agent, to enable him to more readily handle the land for his principal. Upon this state of facts, if appellant had sold the land to a third party, and Bums had not received the additional consideration stipulated in the deed to appellant to be paid "him in event the land was sold by his grantee, it may be that he could hold both appellant and Stribling liable for such consideration. But, when the conveyance by appellant was for the sole purpose of placing the legal title in the known real owner, it certainly cannot be held that by such conveyance appellant became liable to Burns for the additional consideration. Heffron v. Pollard, 73 Tex. 96, 11 S. W. 165, 15 Am. St. Rep. 764.
If the deed from Burns to Be Normand, upon which appellee’s claim is based, could be held an assignment or transfer of Burns’ interest in the $5,400 additional consideration as stipulated in the deed from Burns to appellant, Harvey, then Le Normand and those holding under him ob-. tained no better right than Burns had in such sum. The question of innocent purchaser of an interest in the land is not raised by the evidence, since the consideration paid by Le Normand for the land conveyed him by Bums is shown by the evidence to have been only a pre-existing debt due him by Burns. The claim of estoppel against appellant to plead and prove the true facts in regard to the conveyance from him to Stribling is not supported by any evidence. Neither Le Normand nor appellee, who acquired and holds his title, knew appellant or Stribling, nor had any knowledge at the time they acquired their conveyance of the acts of appellant upon which the claim of estoppel is based. But we are of opinion that the deed from Burns to Le Normand does not assign or transfer Burns’ original right in the $5,-400. The deed from Burns to appellant provides for the payment of the additional consideration of $5,400, as follows:
“(1) As part of the consideration for this conveyance said R. A. Harvey agrees for himself, his heirs and assigns, to pay, or cause to be paid, to the said George A. Burns, his heirs or assigns, the further sum of Fifty-four Hundred Dollars ($5,400.00) out of one-half of the first oil produced and saved from said premises.”
“(2) It is expressly understood and agreed, moreover, that said R. A. Harvey, his heirs or assigns, shall never be obligated to drill upon said land for oil or otherwise develop *284same or operate thereon, anything herein to the contrary and will do so solely at his or their option; but should the said R. A. Harvey at any time or times sell said land or any part thereof he will pay or cause to be paid to said George A. Burns, his heirs or assigns, thereupon said sum of Fifty-four Hundred Dollars ($5400.00), or Six Hundred Dollars ($600.00) for each acre of said land sold if less than- the entire nine acres be sold, ■which shall satisfy to the extent of the amount so paid, the obligation for the payment of $5400.00 out of one-half of the first oil produced and saved.”
The deed from Burns to Le Normand conveys all of Burns’ “right, title and interest in and to all the oil and other minerals in and under” the land. The stipulation in the deed from Burns to appellant as to the payment of the additional consideration of $5,-400 did not create a lien in Burns’ favor upon the oil that might have been produced from the land to secure its payment. Koenig v. Rio Bravo Oil Co. (Tex. Com. App.) 24 S.W.(2d) 14.
Burns, having previously conveyed the land and all the minerals thereunder to appellant, had no mineral rights in the land, save the one-sixteenth royalty reserved in his deed which he could convey to Le Normand and appellee’s right to this royalty, if oil is ever produced from the land, is not, involved in this suit. Caruthers v. Leonard (Tex. Com. App.) 254 S. W. 779.
From these conclusions it follows that the motion for rehearing should be refused, and it has been so ordered.
Refused.