Page:Arrington v. United Royalty Co.pdf/1

270 v..

4-3170

Opinion delivered November 27, 1933. 
 * 1) M.—Royalties in oil and gas, until the oil and gas are brought to surface and reduced to possession, are interests in real estate, and not personal property.
 * 2) M.—By a deed conveying a one-half interest in royalties in. oil and gas leases the grantee acquired an interest in real estate, though the conveyance stipulated that the grantee should not be a necessary party in leasing the land for oil and gas purposes; the grantor being authorized to execute such leases.
 * 3) M.—One owning a royalty interest in land may plead the statute of limitations as against a foreclosure of a prior mortgage where he was not party to such foreclosure, and there was no indorsement on the mortgage record extending the time of maturity of the mortgage.

Appeal from Johnson Chancery Court; W. E. Atkinson, Chancellor; affirmed.

Patterson & Patterson, for appellant.

Reynolds & Maze and Max G. Cohen, for appellee.

B, J. This cause was submitted to the court below on an agreed statement of facts, which, necessary for an understanding of the issue presented, may be thus stated:

On the 26th day of February, 1920, J. R. Hudson, being then the owner of the southeast, northeast, section 14, township 10 south, range 24 west, in Johnson County, to secure a note of $1,000 of that date, due one year thereafter, executed, acknowledged and delivered to the Bank of Clarksville his mortgage (his wife joining therein) covering said lands, which mortgage was duly recorded.

On June 26, 1925, the said Hudson and wife, by their deed of that date, duly acknowledged, conveyed to Dan W. Johnson an undivided one-half interest in all the mineral in and under said lands. Three days later all of the parties to the above deed executed and delivered to the Empire Gas & Fuel Company a certain instrument in writing, called an "oil and gas lease," by which the parties do "grant, lease and let unto the lessee the land