(concurring specially). Since defendant in error’s action in Murray county was one at law, in which no resort to equity is required, and since the action is to recover damages based on breach of contract for failure of defendants (plaintiffs in error) to pay a consideration for a sale to them of an oil and gas lease, the action resulting in a judgment from which the appeal comes should have been brought in a county of proper venue, i.e., in a county where some one of the defendant’s resides, or where some one of them could have been properly summoned, or where the cause of action or some part thereof arose as against the foreign corporation.
Venue did not obtain in Murray county; the action was not to enforce an agreement to convey an interest in real property, but merely one for damages for failure to pay a consideration. The cause of action did not arise in Murray county; none of the parties are shown to have ever been in Murray county, much less to have resided there, prior to the commencement of the action. The defendants in the action made proper objections to the jurisdiction of the court and saved their exceptions. The issue of venue now presented was not waived.
The gist of the action was not for specific performance to establish an interest in land. It was a derivative action, personal in its nature (against persons, to bind persons); it was not in rem (against a thing, to bind a thing); the action was not local but transitory; it was personal, hence could not, over the objection of defendants, be maintained in Murray county.
Contrariwise, had defendants been plaintiffs seeking to establish an interest in land and to acquire the oil and gas lease as evidence of, that interest, their action would have had venue in Murray county where the land lies.
Because of the location of the land the object of such a suit would have been to have established such an interest, and in that event, the venue might have been cast in Murray county. Venue is one of- the constituent elements of .jurisdiction. Jurisdiction is composed of three constituent elements, the first of which is jurisdiction of the subject matter, the second of which is jurisdiction of the parties, and the third is the power of the court to render the particular judgment. Had the action been to establish an interest in real estate in view of the location of the land, a plaintiff seeking to establish that interest might have maintained the action in Murray county.
Thus far I thoroughly agree with the conclusion reached in the majority opinion, but I think it unnecessary to cite such decisions as are cited or to express, without more, that the action dealt with personalty. These decisions *540are by no means paragons of perfection. They are the product of the thought of our first virtuous and well-meaning councils. But we should not forever be under the regimen of our barbarous ancestors. The 'decisions of the earlier courts determined that interests in land, evidenced by instruments in which oil and gas rights were reserved or granted, constituted a form of a mere license. A license of course is revocable at will by the licensor, but an oil and gas lease is not so revocable, hence it is more than a license, it is coupled with an interest. The interest conveyed is an incorporeal hereditament giving right of possession and to reduce to possession an object of ownership constituting property, and while the property, when severed, is a mere chattel, the right by the instrument granted is something more than personalty. It is more than an illimitable vista of hope because the "possessor of the right may exercise the contractual, legal right which is defeasable only by his own nonaction or by nature.
When such an issue can be settled by examination of the pleadings and a separation of the false from the ultimate truth, as in the case at bar, there is no need to rely on such opinions as Widick v. Phillips Petroleum Co., 173 Okla. 325, 49 P. 2d 132, nor to construe the fourth subdivision of Title 12, O. S. 1941 §131, because if the first subdivision applies to a mere action in damages, which it does not, that, in itself, is sufficient.