Brown v. Smith, 174 S.W.2d 43 (Tex. 1943). · Go Syfert
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Brown v. Smith, 174 S.W.2d 43 (Tex. 1943). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case · …the joint ownership of the royalty interest in all of the land included in such lease is created by the action of the several land owners in joining in the execution of the lease. at p. 46 ✓
189 citation events (36 in the last 25 years) across 10 distinct courts.
Strongest positive: Kenneth Hahn v. ConocoPhillips Company (texapp, 2022-12-01) · Strongest negative: Brad and Randi Aery, and the House Intervenors Lloyd House, Robert Eugene House, Magdalen House, Judith Ann House, Wayne House, Jimmy R. House, Edna Pawelek Ulbrich, Peter Pawelek, Jesse Pawelek, Ruby Pawelek Schumacher, Elizabeth Pawalek Reigh, Roy Mitch v. Hoskins, Inc. (texapp, 2015-06-19)
Treatment trajectory · 1944 → 2026 · click a year to view as-of
1944 1985 2026
Top citers, strongest first. 26 distinct citers. How cited ↗
discussed Cited "but see" Brad and Randi Aery, and the House Intervenors Lloyd House, Robert Eugene House, Magdalen House, Judith Ann House, Wayne House, Jimmy R. House, Edna Pawelek Ulbrich, Peter Pawelek, Jesse Pawelek, Ruby Pawelek Schumacher, Elizabeth Pawalek Reigh, Roy Mitch v. Hoskins, Inc.
Tex. App. · 2015 · signal: but see · confidence high
But see Vantress Farms, Inc. v. Sydenstricker (CalApp 1970), 90 CalRptr 251, 37 O&GR 1, wherein reformation was denied because the party seeking reformation accepted the other party’s performance with knowledge that the contract as written was being relied upon. 53 See Gillis v. Royalty Service Corp., 91 CalApp(2d) 365, 204 P(2d) 968 (1949). 54 LeBard v. Richfield Oil Corp., 15 CalRep 617, 15 O&GR 1, 364 P(2d) 449 (1961). 55 See, e.g., Brown v. Smith, 141 Tex 425, 174 SW(2d) 43 (1943). 1-6 Kuntz, Law of Oil and Gas § 6.1 of oil or gas from wells located on any tract included in the lease wi…
examined Cited as authority (verbatim quote) Kenneth Hahn v. ConocoPhillips Company
Tex. App. · 2022 · quote attribution · 1 verbatim quote · confidence high
had mrs. lee, the owner of the outstanding royalty interest in the 20-acre tract, joined in the execution of the oil 23 and gas lease, she would have become a party to the pooling agreement contained in the lease.
examined Cited as authority (verbatim quote) Samson Exploration, LLC (Formerly Samson Lone Star, L.P.) v. T.S. Reed Properties, Inc. (3×) also: Cited as authority (quoted), Cited as authority (rule)
Tex. · 2017 · quote attribution · 2 verbatim quotes · confidence high
the joint ownership of the royalty interest in all of the land included in such lease is created by the action of the several land owners in joining in the execution of the lease.
discussed Cited as authority (rule) Mineral Dev., Inc. v. SWN Prod. Co., L.L.C.
Ohio Ct. App. · 2025 · confidence medium
See, e.g., BPX Operating Co. v. Strickhausen, 629 S.W.3d 189 , 193 (Tex. 2021) (the strategizing npri was informed the lack of ratification meant the royalty would be calculated “based on the length of productive wellbore on the subject tract over the total length of productive wellbore” instead of the entire unit’s production); Brown v. Smith, 141 Tex. 425, 431 (1943).
discussed Cited as authority (rule) Conocophillips Company v. Kenneth Hahn
Tex. · 2024 · confidence medium
Because Hahn’s interest is a fixed share of production, (holding pooling allowed with consent of NPRI holder); Brown v. Smith, 174 S.W.2d 43, 47 (Tex. 1943) (referring to the benefits of “a pooling agreement which binds all of the royalty owners”); MCZ, Inc. v. Triolo, 708 S.W.2d 49, 52 (Tex. App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.) (explaining that consent to pool may be provided by agreement or by participation in a lease that contains a pooling provision). 20Indeed, the lease’s pooling provision explicitly states that “[t]he formation of any unit hereunder shall not h…
cited Cited as authority (rule) Wagner & Brown, Ltd. v. Sheppard
Tex. · 2008 · confidence medium
See Southland Royalty, 249 S.W.2d at 916 ; Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43, 46 (1943). 18 .
discussed Cited as authority (rule) James Alfred Singleton, Jr. v. State
Tex. App. · 2007 · confidence medium
Montgomery v. Rittersbacher , 424 S.W.2d 210, 213 (Tex. 1968); Brown v. Smith , 141 Tex. 425 , 174 S.W.2d 43, 46 (1943); MCZ, Inc. v. Triolo , 708 S.W.2d 49, 53 (Tex. App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.).
discussed Cited as authority (rule) PYR Energy Corp. v. Samson Resources Co. (2×)
E.D. Tex. · 2006 · confidence medium
These rulings apply to overriding royalties (ORRIs) and to nonparticipating royalty interests (NPRIs). 8 E.g., Montgomery v. Rittersbacher, 424 S.W.2d 210 (Tex.1968); Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43, 46 (1943); Brown v. Getty Reserve Oil, Inc., 626 S.W.2d 810 (Tex.App.-Amarillo 1981); see Union Pacific Resources Co. v. Hutchison, 990 S.W.2d 368, 370 (Tex.App.-Austin 1999).
discussed Cited as authority (rule) Wagner & Brown, Ltd. v. Sheppard
Tex. App. · 2006 · confidence medium
Montgomery v. Rittersbacher, 424 S.W.2d 210, 213 (Tex.1968); Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43, 46 (1943); MCZ, Inc. v. Triolo, 708 S.W.2d 49, 53 (Tex.App.Houston [1st Dist.] 1986, writ ref'd n.r.e.).
discussed Cited as authority (rule) Wagner & Brown, Ltd. v. Jane Turner Sheppard, Individually and as Independent of the Estate of Sybil Turner
Tex. App. · 2006 · confidence medium
Montgomery v. Rittersbacher , 424 S.W.2d 210, 213 (Tex. 1968); Brown v. Smith , 141 Tex. 425 , 174 S.W.2d 43, 46 (1943); MCZ, Inc. v. Triolo , 708 S.W.2d 49, 53 (Tex. App.—Houston [1st Dist.] 1986, writ ref'd n.r.e.).
discussed Cited as authority (rule) Browning Oil Co., Inc. v. Luecke
Tex. App. · 2000 · confidence medium
Royalty is distributed on the basis of the proportion each party’s acreage bears to the whole block.” MCZ, Inc. v. Triolo, 708 S.W.2d 49, 52-53 (Tex. App.-Houston [1st Dist.] 1986, writ refd n.r.e.) (citing Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43, 46 (1943)).
discussed Cited as authority (rule) Union Pacific Resources Co. v. Hutchison
Tex. App. · 1999 · confidence medium
See Montgomery v. Rittersbacher, 424 S.W.2d 210, 213 (Tex.1968); Minchen v. Fields, 162 Tex. 73 , 345 S.W.2d 282, 285 (1961); Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43, 46 (1943); Veal v. Thomason, 138 Tex. 341 , 159 S.W.2d 472, 475-76 (1942); Raymond M.
discussed Cited as authority (rule) Union Pacific Resources Company v. Hellen Reasoner Hutchison, Milburn E. Nutt and Susan McRae
Tex. App. · 1999 · confidence medium
See Montgomery v. Rittersbacher , 424 S.W.2d 210, 213 (Tex. 1968); Minchen v. Fields , 345 S.W.2d 282, 285 (Tex. 1961); Brown v. Smith , 174 S.W.2d 43, 46 (Tex. 1943); Veal v. Thomason , 109 S.W.2d 472 , 475-76 (Tex. 1942); Raymond M.
cited Cited as authority (rule) MCZ, INC. v. Triolo
Tex. App. · 1986 · confidence medium
Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43, 46 (1943).
discussed Cited as authority (rule) Elick v. Champlin Petroleum Co. (2×)
Tex. App. · 1985 · confidence medium
See also Superior Oil Co. v. Stanolind Oil & Gas Co., 150 Tex. 317 , 240 S.W.2d 281, 285-86 (1951); Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43, 46 (1943).
discussed Cited as authority (rule) Brown v. Getty Reserve Oil, Inc.
Tex. App. · 1981 · confidence medium
As stated in Brown v. Smith, 141 Tex. 425, 430 , 174 S.W.2d 43, 46 (1943), the grantors did not reserve for themselves the right of leasing, and the grantee, therefore, possessed’ that right, but the grantee was not, as a consequence, authorized to pool the grantors’ royalties with royalties from other land that might thereafter be included with it in a lease.
discussed Cited "see" Peter J. Dragon v. Charles E. Harrell and Hollis R. Harrell (2×)
Tex. App. · 2015 · signal: see · confidence high
See Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43 (1943).
discussed Cited "see" ConocoPhillips Company v. Vaquillas Unproven Minerals, LTD. (2×)
Tex. App. · 2015 · signal: see · confidence high
See Brown v. Smith, HAMILTON, Justice (dissenting). 141 Tex. 425 , 174 S.W.2d 43 (1943); Gulf Oil Cor- I withdraw the dissenting opinion heretofore filed poration v. Marathon Oil Co., 137 Tex. 59 , 152 in this cause on June 23, 1965, and file the following S.W.2d 711 (1941); Knight v. Chicago Corporation, opinion, respectfully dissenting: 144 Tex. 98 , 188 S.W.2d 564 (1945).
discussed Cited "see" Opinion No.
Tex. Att'y Gen. · 1998 · signal: see · confidence high
See Brown v. Smith , 174 S.W.2d 43 , 46 (Tex. 1943) ("An oil and gas lease jointly executed by the owners of two or more tracts of land owned in severalty, with provision for pooling or sharing, on the basis of acreage, the royalties from oil or gas produced anywhere on the leased land, has the effect of vesting all of the lessors, at least during the life of the lease, `with joint ownership of the royalty earned from all the land in such block.' The lease so executed is a conveyance by each lessor to each of the other lessors of an undivided interest in the royalties.
discussed Cited "see" Hawkins v. Texas Oil and Gas Corp. (2×)
Tex. App. · 1987 · signal: see · confidence high
Montgomery v. Rittersbacher, 424 S.W.2d 210, 212-13 (Tex.1968); see Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43, 46-47 (1943).
examined Cited "see" Virgil Mathews v. Sun Oil Co. (4×)
Tex. · 1968 · signal: see · confidence high
See Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43 (1943); State v. Quintana Petroleum Co., 134 Tex. 179 , 133 S.W.2d 112 , 134 S.W.2d 1016 , 128 A.L.R. 843 (1940); Tennant v. Dunn, 130 Tex. 285 , 110 S.W.2d 53 (1937); Sheffield v. Hogg, 124 Tex. 290 , 77 S.W.2d 1021 , 80 S.W.2d 741 (1934); Sheppard v. Stanolind Oil & Gas Co., 125 S.W.2d 643 (Tex.Civ.App.—1939, writ ref’d); Hardwicke, “Problems Arising Out of Royalty Clauses in Oil and Gas Leases in Texas,” 29 Texas L.Rev. 790 , 791 (1951).
examined Cited "see" Jones v. Killingsworth (4×)
Tex. · 1965 · signal: see · confidence high
See Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43 (1943); Gulf Oil Corporation v. Marathon Oil Co., 137 Tex. 59 , 152 S.W.2d 711 (1941); Knight v. Chicago Corporation, 144 Tex. 98 , 188 S.W.2d 564 (1945).
examined Cited "see" Miller v. Speed (3×)
Tex. App. · 1952 · signal: see · confidence high
See Brown v. Smith, Tex.Civ.App., 168 S.W.2d 513, 517 , Id., 141 Tex. 425 , 174 S.W.2d 43, 46 ; Schlittler v. Smith, 128 Tex. 628 , 101 S.W.2d 543, 544 ; Moore v. City of Beaumont, Tex.Civ.App., 195 S.W.2d 968, 980 ; 26 Tex.Law Rev. 569.
examined Cited "see" Miller v. Speed (3×)
Tex. App. · 1952 · signal: see · confidence high
See Brown v. Smith, Tex.Civ.App., 168 S.W.2d 513, 517 , Id., 141 Tex. 425 , 174 S.W.2d 43, 46 ; Schlittler v. Smith, 128 Tex. 628 , 101 S.W.2d 543, 544 ; Moore v. City of Beaumont, Tex.Civ.App., 195 S.W.2d 968, 980 ; 26 Tex.Law Rev. 569.
cited Cited "see" Law v. Stanolind Oil & Gas Co.
Tex. App. · 1948 · signal: see · confidence high
See Brown v. Smith, Tex.Com.App., 174 S.W.2d 43 .
discussed Cited "see, e.g." Humble Oil & Refining Company v. West (2×)
Tex. · 1974 · signal: see also · confidence low
See also Brown v. Smith, 141 Tex. 425 , 174 S.W.2d 43 (1943); Watkins v. Slaughter, 144 Tex. 179 , 189 S.W.2d 699 (1945).
Retrieving the full opinion text from the archive…
H. L. Brown Et Al.
v.
Ector Smith Et Al.
No. 8095..
Texas Supreme Court.
Jul 7, 1943.
174 S.W.2d 43
Hardwicke Cheek, of Fort Worth, and Orgain, Carroll Bell, of Beaumont, for petitioners. The Court of Civil Appeals erred in holding that the oil, gas and mineral lease executed and delivered by the record owners of the title to a part of the land in controversy did not constitute a cloud on the title on the theory that the judgment obtained by plaintiffs against the record owners on their disclaimer and against another by agreement and that Ector Smith had matured a ten year limitation title to the 62.75 acres in controversy. State Mort. Corp. v. Traylor, 120 Tex. 148 , 36 S.W.2d 440 ; Burt v. Deorsam, 227 S.W. 354 ; Burke-Simons Co. v. Konz, 178 S.W. 587 ; Van Deventer v. Gulf Prod. Co. 41 S.W.2d 1029 ; Hamburger Dreyling v. Thomas, 103 Tex. 280 . M.L. Lefler and W.O. Bowers, Jr., both of Beaumont, for respondents. As to whether the lease constitutes a cloud of title. Humphreys v. Skelly Oil Co., 83 F.2d 989 ; Texas Co. v. Daugherty, 107 Tex. 226 , 234, 176 S.W. 717 ; Broughton v. Humble Oil Refining Co., 105 S.W.2d 480 ; Collier v. Caraway, 140 S.W.2d 910 ; Murphy v. Jamison, 117 S.W.2d 127 , 129.
Smedley.
Cited by 78 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 71%
Citer courts: Texas Supreme Court (1)
Mr. Judge Smedley

of the Commission of Appeals delivered the opinion for the Court.

Respondents Ector Smith and Floyd Smith and their wives sued petitioners H. L. Brown and W. R. Wheeler and escrow agent, Security State Bank & Trust Company of Beaumont, to recover $6,275.00, representing the consideration or bonus for an oil and gas lease which had been executed and deposited in the bank, together with the said consideration or bonus and a written contract between respondents and petitioners. The suit is by the vendors or lessors against the purchasers or lessees for the specific performance of the contract. The defense made by petitioners is that the abstracts of title delivered to them by respondents did not show good title as required by the contract and that respondents did not cure the defects in the title which were pointed out to them.

The case was tried by the court without a jury and judgment was rendered in favor of respondents against petitioners for $6,275.00 and in favor of the bank for $125.00 as its attorney’s fees, to be taxed as costs, the clerk of the court being directed to apply the sum of $6,275.00, which had been paid by the bank[*427] intq the registry of the court, first to the payment of costs and then to the judgment rendered in favor of respondents. The Court of Civil Appeals affirmed the trial court’s judgment. 168 S. W. (2d) 513.

The substance of the written contract is as follows: The attached oil and gas lease made a part of the contract and executed on the same date, June 15, 1939, by Ector Smith and wife and Floyd Smith and wife as lessor to H. L. Brown and W. R. Wheeler, as lessee, together with a cashier’s check for $6,275.00, is deposited in the bank in escrow, subject to specified terms and conditions. These are that lessor shall forthwith prepare and deliver to lessee for examination a complete abstract of the title to the land described in thé lease, allowing ten days for examination of the title by lessee’s attorneys; that if title to the land is shown by the abstract to be good, the lessee shall accept the lease and it shall be delivered to lessee and the check shall be delivered to lessor; that if the title is not good as shown by the abstract, the lessor shall have a reasonable time, not to exceed six months, in which to cure the defects in the title pointed out to him, and that if the defects are cured within that time the lease shall be consummated by delivery; and that if the title is not g'ood and cannot be made good in the six months specified, the contract shall be at an end and the check shall be returned to the lessee.

The lease accompanying the contract and deposited in the bank contains, with the exception of a single paragraph hereinafter quoted, the terms and conditions usually appearing in oil and gas leases of Texas land. It designates Ector Smith and wife and Floyd Smith and wife lessor, and H. L. Brown and W. R. Wheeler lessee, is for a term of five years and as long thereafter as oil, gas or other mineral is produced from the land, obligates the lessee to pay to the lessor the usual one-eighth royalties and provides for an annual rental of $313.75 for deferring commencement of drilling operations. The land described in the lease is a tract of 62.75 acres in Jefferson County described by metes and bounds. Immediately after the description by metes and bounds, the lease contains the following paragraph:

“Of the acreage above described, the said Floyd Smith and wife, Bertha Smith, own twenty (20) acres and the said Ector Smith and wife, Ada Smith, own 42.75 acres, and it is understood and agreed as between Lessors, that the rents and royalties hereinafter stipulated to be paid on said 62.75 acre tract are to be pooled and shared by said Lessors in proportion to acreage owned.”

[*428] Petitioners’ attorneys prepared several title opinions, which were submitted to respondents, pointing out defects in the title shown by the abstracts delivered to them by respondents for examination, the opinions being- dated June 15, 1039, September 15, 1939, December 15, 1939, and March 16, 1940. Many of the defects were cured by instruments appearing in additional abstracts which were prepared by respondents and submitted to petitioners’ attorneys. In their opinion dated September 15, 1939, petitioners’ attorneys, as one of the objections to the title, called attention to the fact that Mrs. C. B. Lee was shown by the abstract to be the owner of a one-thirty-second royalty interest in 20 acres of the 62.75 acre tract described in the lease and they required that she join in the execution and delivery of the oil and gas lease to petitioners. In their opinion dated December 15, 1939, and in their final opinion, disapproving the title, dated March 25, 1940, the attorneys pointed out that this defect in the title had not been cured.

Petitioners, under several assignments, insist that, there ' remained other material defects in the title, but because of the conclusions hereinafter expressed we discuss only the question presented as to the royalty interest owned by Mrs. Lee.

The record shows, as the lease recites, that of the 62.75 acres described in the lease Ector Smith is owner of 42.75 acres, the east part of the 62.75 acres, and that Floyd Smith is the owner of 20 acres, the west part of the 62.75 acre tract. Floyd Smith’s ownereship of the 20 acres, however, is subject to a one-thirty-second royalty interest owned by Mrs. Lee. The lease, which is the subject of the escrow agreement and was to be delivered to petitioners if good title was shown by the abstracts, is executed by Ector Smith and his wife and Floyd Smith and his wife “lessor, whether one or more” to petitioners as “lessee.” It provides for the payment of royalties to lessor or to the credit of lessor, and the obligations, covenants and undertakings of the parties are, according to the terms of the lease, those of lessor and lessee. The lease contains the paragraph quoted above, the substance of which is that Floyd Smith and wife own 20 acres of the land described in the lease and Ector Smith and wife own 42.75 acres of it, and that the rents and royalties stipulated to be paid on the 62.75 acre tract are to be pooled and shared by the lessors in proportion to the acreage owned.

To what extent would Mrs. Lee’s royalty interest in the 20 acres be affected by the execution and delivery of the lease.[*429] executed by Floyd Smith and Ector Smith and deposited in the bank with the escrow agreement?

On March 10, 1930, Mrs. Lee by warranty deed conveyed to Floyd Smith 20 acres of land described by metes and bounds, and being the west part of the 62.75 acre tract. The deed contains the following reservation:

“But it is expressly understood between the Grantor and Grantee herein and that as a part of the consideration for the land hereby conveyed, there is a reserve to the Grantor herein, her heirs and assigns forever, a one-thirty-second (1/32) royalty interest in and to all the oil, gas and other minerals in, upon or under the above described property, such royalty to be delivered to the Grantor her heirs, or assigns, as is usual where oil, gas or other minerals are produced and saved from said land. But the Grantee herein, his heirs or assigns are not and shall not be under any obligations to drill or otherwise operate said land for the production of oil, gas or other minerals except at his option.”

Later, Floyd Smith and Ector Smith sued Mrs. Lee for the title and possession of the 62.75 acre tract, and on July 8, 1937, an agreed judgment was rendered, by which Floyd and Ector Smith recovered from Mrs. Lee the title and possession of the land sued for, except that title and possession of a one-thirty-second royalty interest in the oil, gas and other minerals in the 20 acre tract were adjudged to Mrs. Lee.

Petitioners contend that the interest and rights of Mrs. Lee are to be measured by the judgment rather than by the terms of the reservation contained in Mrs. Lee’s deed to Floyd Smith, but for this opinion we assume the correctness of the position taken by respondents that the judgment was intended to recognize, or to award to Mrs. Lee, the title and rights that were reserved in her deed to Floyd Smith.

Mrs. Lee in her conveyance of the 20 acre tract to Floyd Smith reserved a one-thirty-second royalty interest in all of the oil, gas and other minerals in the land, the royalty, meaning of course all of the one-thirty-second royalty, to be delivered to her, her heirs or assigns as is usal where oil, gas or other minerals are produced and saved from said land. She did not reserve the right to execute or join in the execution of mineral leases of[*430] the land. It may be granted, as was said in Schlittler v. Smith, 128 Texas 628, 101 S. W. (2d) 543, that, when a grantor reserves to himself a royalty interest he contemplates the leasing of the land for production, and that if he reserves to himself no right of leasing, the grantee possesses that right. But it does 'not follow that Mrs. Lee’s deed invested her grantee with the right or authority to pool her royalties with royalties from other land that might thereafter be included with it in a lease. Gulf Oil Corporation v. Marathon Oil Co., 137 Texas 59, 82, 152 S. W. (2d) 711.

The royalty interest reserved by Mrs. Lee is an interest in land. Sheffield v. Hogg, 124 Texas 290, 77 S. W. (2d) 102, 80 S. W. (2d) 741; Sheppard v. Stanolind Oil & Gas Co., 125 S. W. (2d) 643, (application for writ of error refused) ; Tennant v. Dunn, 130 Texas 285, 110 S. W. (2d) 53; O’Connor v. Quintana Petroleum Co., 134 Texas 179, 133 S. W. (2d) 112, 134 S. W. (2d) 1016, 128 A. L. R. 843. The language used, by which Mrs. Lee reserved to herself the one-thirty-s'econd royalty, interest in all of the. 20 acres conveyed, with provision that the royalty be delivered to her as is usual where oil, gas or other minerals are produced and saved, negatives the existence of an intentiori to confer upon her grantee the power or authority to convey or in any way dispose of any part of the royalty interest which she reserved.

An oil and gas lease jointly executed by the owners of two or more tracts of land owned in severalty, with provision for pooling or sharing, on the basis of acreage, the royalties from oil or gas produced anywhere on the leased land, has the effect of vesting all of the lessors, at least during the life of the lease, “with joint ownership of the royalty earned from all the land in such block.” Veal v. Thomason, 138 Texas 341, 349, 159 S. W. (2d) 472. The ease so executed is a conveyance by each lessor to each of the other lessors of an undivided interest in the royalties. Lusk v. Green, 114 Okla. 113, 245 Pac. 636. The joint ownership of the royalty interest in all of the land included in such lease is created by the action of the several land owners in joining in the execution of the lease. French v. George, 159 S. W. (2d) 566, 569, (application for writ of error refused.)

Had Mrs. Lee, the owner of the outstanding royalty interest in the 20 acre tract, joined in the execution of the oil and gas lease, she would have become a party to the pooling agreement contained in the lease and thereby, in effect, she would have conveyed to 'the owner of the 42.75 acres a part of her interest[*431] in the royalty in the 20 acres and would have become the owner of an undivided interest in the royalty in the 42.75 acres. Since Mrs. Lee did not join in the lease, the execution and delivery of it by Floyd and Ector Smith would neither divest her of any part of her royalty, interest in the 20 acre tract nor vest in her any interest in the royalty in the 42.75 acres. Martel v. A. Veeder Co., 199 La. 423, 6 So. (2d) 335.

From the conclusion that Mrs. Lee’s royalty interest in the 20 acre tract, and her rights incident thereto, would not be affected by the pooling agreement in the lease executed by Floyd and Ector Smith it follows, in our opinion, that petitioners were justified in disapproving the title when respondents failed to satisfy the requirement that Mrs. Lee join in the execution and delivery of the lease. Petitioners’ contract was for the execution and delivery to them of an oil and gas lease under which the royalties from all the land, although the lease included two tracts separately owned, would be pooled and paid in proportion to the acreage owned. The lease which this suit seeks to force petitioners to accept is materially a different lease. Under it, Mrs. Lee would be entitled to a one-thirty-second royalty, one-fourth of the one-eighth royalty, in all of the oil, ga's or other minerals produced from the 20 acre tract and to none of the royalty from the remaining 42.75 acres. The pooling agreement contained in the lease would afféct only the royalty interests reserved in the lease by Floyd Smith and Ector Smith.

We cannot sustain respondents’ contention that, because the lease reserves “one-eighth royalty in the 62.75 acres sufficient to take care of Mrs. Lee’s one-thirty-second royalty in 20 acres thereof,” the seven-eighths leasehold interest which petitioners contracted to acquire is in no way affected by Mrs. Lee’s ownership of the outstanding royalty interest and her failure to join in the lease. The oivner of the leasehold estate is interested in an effective agreement for the pooling of all royalties payable under the lease. When a pooling agreement which binds all of the royalty owners has been made, the lessee, has greater freedom in the selection of locations for the drilling of wells on the land covered by the lease, for each of the land owners or royalty owners is entitled to his share of the royalties from all wells drilled anywhere on the land, instead of being entitled to receive only royalties arising out of the production from a certain part of the leased land. Controversies and probable liability on account of drainage are avoided. For example, would Mrs. Lee, not having joined in the lease, acquiesce in the drilling and operation of wells on the 42.75 acre tract that would drain oil from the 20 acre tract in which she owns the royalty interest?

[*432] The provision in Mrs. Lee’s deed to Floyd Smith, made in connection with her reservation of the royalty interest, that the grantee shall not be under obligation to drill or operate the land for the production of oil, gas or other minerals, except at his option, is intended to protect the grantee against the implication of an obligation to develop or operate the 20 acre tract for production to pay the royalties reserved. It has no relation to drainage by wells drilled on other land or to the question of pooling the reserved royalties with royalties from other land.

Petitioners would suffer other disadvantages from the acceptance of a lease in which Mrs. Lee did not join. Among them may be mentioned the necessity for the construction and maintenance of separate measuring tanks on each of the two tracts for the calculation of Mrs. Lee’s one-fourth of the royalties of oil and gas produced from the 20 acres and the keeping of separate books and records. In many respects the burdens and obligations of petitioners under the lease tendered by respondents would be the same as they would be under two separate leases, one affecting the 20 acre tract and the other affecting the 42.75 acre tract. In short, the lease "tendered was, in a substantial particular, important to the lessee, not the lease that petitioners contracted to- acquire.

The judgments of the district court and the Court of Civil Appeals, except that part of the same which adjudged that Security Staté Bank & Trust Company of Beaumont go hence and recover its costs, including $125.00 as attorney’s fees, and that John O. Banks go hence with his costs, are reversed. Judgment is here rendered that respondents take nothing by their suit, and that out of the sum of $6,275.00 which was deposited by Security State Bank & Trust Company of Beaumont in the registry of the district court, the clerk of that court pay first the costs in that court, including the attorney’s fee of $125.00, and pay to petitioners the balance of said sum so deposited; and judgment is here rendered in favor of petitioners H. L. Brown and W. R. Wheeler on their cross action against respondents Ector Smith and Floyd Smith for the amount of the costs, including the attorney’s -fees of $125.00, paid by the clerk of the district court as herein provided out of the sum deposited in the registry of the court.

Opinion adopted by the Supreme Court July 7, 1943.

Rehearing overruled October 13, 1943.