
    TUCKER v. LEONARD et al.
    No. 19432.
    Opinion Filed April 29, 1930.
    Rehearing Denied Sept. 9, 1930..
    Neff & Neff, Kittie C. Sturdevant, and Bleakmore & Barry, for plaintiff in error.
    Thrift & Davenport, Everest, Dudley & Brewer,, and Hagan & Gavin, for defendants in error.
   ANDREWS, J.

This is n companion case to No. 19370 in this court, entitled Fred Tucker v. M. B. Leonard et al., 144 Okla. 264, 291 Pac. 124. The two cases were tried together. Separate appeals were taken and on appeal the cases were briefed together. The issues presented are identical and are determined by the opinion in that case. There are parties to this litigation who are not parties in the companion case, and upon appeal, by stipulation, the cause has been dismissed as to M. B. Leonard, Mable F. Leonard, and N. V. Leonard, both as to the personal judgment sought against them and as to the 80 acres of land claimed by them.

This record shows that Bernard B. Jones paid .$400 for 40 acres of the allotment on September 14, 1912, and that he paid $1,500 to the “next friend” of the plaintiff on July 8, 1921. He received from the land for oil royalties $74,901.24; for gas royalties $406.12, and for gas rental $100 up to October 31, 1917, at which time he sold the land to the Prairie Oil & Gas Company along with other land without any division or apportionment of the purchase money. Judgment should be rendered against him in favor of plaintiff for the amounts he received, with interest at the rate of six per cent, per annum from the date of receipt thereof, less the amounts that he paid, with interest thereon at the rate of six per cent, per annum from the dates of payment.

The guardian’s deed and the order of confirmation of the guardian’s sale to the defendant !M. B. Leonard and. all the conveyances from M. B. Leonard and his grantees, save only the oil and gas mining lease to the Prairie Oil & Gas Company and the deed from Bernard B. Jones to the Prairie Oil & Gas Company and the west half of the southwest quarter of section 33, township 18 north, range 8 east, in Creek county, Okla., claimed by thei defendants M. B. Leonard, Mabel F. Leonard, and N. V. Leonard, should be vacated, canceled, set aside, and held for naught, and the trial court should hear the evidence and determine the amount received by Bernard B. Jones from the sale of the real estate and require an accounting of the proceeds of the oil taken from this land by the defendant B. F. Whitehill.

The judgment of the trial court is reversed, and this cause is remanded to the district court of Creek county, with instructions to render judgment in favor of the plaintiff and against the defendant Bernard B. Jones in the amount herein found due and owing; to vacate, cancel, and set aside the order of confirmation of the guardian’s sale and the guardian’s deed to the defendant M. B. Leonard and all of the conveyances from M. B. Leonard and his grantees, except only the oil and gas mining lease to the Prairie Oil & Gas Company, the deed from Bernard B. Jones to the Prairie Oil & Gas Company, and the west half of the southwest quarter of section 33, township 18 north, range 8 east, in Creek county, Okla., claimed by the defendants M. B. Leonard, Mabel F. Leonard, and N. Y. Leonard, to quiet and confirm the title to the land involved in this action in the plaintiff, free and clear of the claims of the defendants herein, except as hereinbefore stated, and to assess the costs of this action, including this appeal, against the defendants. The trial court is further directed to require an accounting of the proceeds of the oil taken from this land by the defendant B. E. White-hill, and to determine the amount received by the defendant Bernard B. Jones from the sale of the land to the Prairie Oil & Gas Company, and to render judgment therefor.

MASON. CL J., and CLARK, CULLISON, and SWINDALL, JJ., concur. LESTER, V. C. J., and HUNT and RILEY, JJ., absent. HEFNER, J., dissents.  