MCCULLOUGH v. ALMACH

MCCULLOUGH v. ALMACH
1941 OK 54
110 P.2d 295
188 Okla. 434
Case Number: 28789
Decided: 02/11/1941
Supreme Court of Oklahoma

McCULLOUGH et al.
v.
ALMACH et al.

Syllabus

¶0 1. OIL AND GAS--"Royalty" defined.
The word "royalty," as used in connection with oil and gas leases, conveyances, and reservations, has a definite meaning in its popular sense. It means a share of the products, or proceeds therefrom, reserved to the owner of land for permitting another to use the property.
2. SAME--Instrument held to convey vested right in grantee to receive fractional part of royalty reserved to owner under any existing lease and under any lease thereafter executed within 15-year period and as long as there may be paying production from land during such period.
An agreement in writing based upon a valuable consideration properly executed, which provides that the owners of land do "bargain, sell, grant, convey, set over, assign and transfer" to the grantee an undivided fractional interest in and to the "oil and gas royalty, which is or may hereafter be reserved," by the grantor or his assigns, "exclusive of the oil and gas bonus and oil and gas rental money, in and under" certain land, running for a period of 15 years, "and as long as oil or gas or either of them is produced in paying quantities from said land, and no longer," conveys a vested right in the grantee to receive such fractional part of the royalty reserved to the owner under any lease then existing, and under any oil and gas lease thereafter executed by the owner or his assigns, within such 15-year period, and as long as oil and gas or either of them is produced from said land in paying quantities if such production is had within said period.

Appeal from District Court, Kay County; Claude Duval, Judge.

Action by Josie A. McCullough and others against D. F. Almach and others. Judgment for defendants, and plaintiffs appeal. Affirmed.

John L. Gleason, of Oklahoma City, for plaintiffs in error.
William H. Cline, of Newkirk, for defendants in error.
William H. Zwick, John W. Wolfe, and Howard Davis, all of Ponca City, amici curiae.

GIBSON, J.

¶1 This is an action to cancel certain oil and gas royalty conveyances and to quiet title.

¶2 Some of the defendants demurred to the petition and others were in default. Demurrer was sustained and plaintiffs elected to stand on the petition and judgment was rendered against them. The trial court refused to enter judgment against the defaulting defendants, but required proof to supplement the allegations of the petition. After many days of unavoidable delay, and before proof could be offered as required, the plaintiff appealed from the judgment on demurrer (McCullough v. Burks, 185 Okla. 502, 94 P.2d 541). Thereafter the trial court rendered judgment for the defaulting defendants and against the plaintiffs for insufficiency of the allegations and the proof, and plaintiffs prosecute this appeal.

¶3 The decision in the first appeal, above, is fully controlling here, and it has so been agreed by the plaintiffs. The law as there announced is adopted as the law in this case.

¶4 The judgment is affirmed.

¶5 WELCH, C. J., CORN, V. C. J., and OSBORN and DAVISON, JJ., concur.