We are of the opinion that the contention of the appellee is not well taken, because the nature of his interest was necessary for a determination of his rights, and this question was sufficiently raised by the pleadings and evidence adduced. We therefore proceed to a determination of that question.
The appellant contends that the royalty interest conveyed by Dan W. Johnson to the appellee is personal property, and, to sustain this contention, cites and relies upon the case of Curlee v. Anderson & Patterson, decided by one of the Courts of Civil Appeals of Texas and reported in 235 S. W., at page 622. That case, and others from other Courts of Civil Appeals in Texas, support the contention made, namely, that a conveyance of an interest in royalty under an oil and gas lease does not convey an interest in the land effective against a subsequent purchaser on foreclosure. O'Brien v. Jones, (Tex. Civ. App.) 239 S. W. 1013; Farmers' & Merchants' Bank of Ranger v. Tullos, (Tex. Civ. App.) 211 S. W. 847. We have been referred to no case announcing this rule which has been decided by the Supreme Court of Texas, and there appears to be a diversity of Opinion among the Courts of Civil Appeals in that State. A later case than those which support appellant's contention is that of Taylor v. Higgins Oil & Fuel Co., decided by the Court of Civil Appeals of Texas, January 11, 1928, reported in 2 S. W. (2d) 288. In that case it is said: "It is also well settled that such leases create a severance of the estate in the surface from the estate in the oil and minerals, which may be owned in their entirety by different parties. It is also the law of this State that the royalty interest retained by the lessor under such leases, whether owned by the original lessor or his vendees; is an estate in the land to be held and sold only under the laws regulating the sale of land." (Citing Hager v. Stakes, 116 Tex. 453, 294 S. W. 842.
The appellant contends that the rule announced in the Curlee case, supra, is supported by the weight of authority, and relies upon the cases of Miller v. Sooy, 120 Kan. 81, 242 Pac. 140; Bellcourt v. Harrison, 123 Kan. 310, 255 Pac. 52; Walla Oil Co. v. Valentine, 103 Wash. 359, 174 Pac. 980; and Merredith v. Merredith, 193 Ky.
