
    No. 563
    HARDIN MORTGAGE CO. v. DAUB et
    Ohio Appeals, 6th Dist., Sandusky Co.
    No. 163.
    Decided Mar. 29, 1926
    997. REAL ESTATE — Where land is sold, oil and gas lease royalties, when not reserved at the time of the sale, pass with the land to the purchaser.
    Attorneys — C. W. Faulkner of Kenton for The Mortgage Co.; and Taber, Chittenden, Northup & Daniels, of Toledo, W. J. Mead and H. C. DeRan of Fremont for Daub et al.
   YOUNG, J.

This proceeding is here on appeal from a confirmation of sale of property, originally begun in the Sandusky Common Pleas. The land in question was originally owned by Micheál Daub father of Phillip Daub, who is a party to this action. About 1913 several oil wells on the land were leased to the Pemberton Oil Co., the lessor Micheál Daub reserving a royalty of 1/6 of all oil produced.

After Micheál Daub’s death Phillip Daub and a sister Cora Bowlus became owners by the will of Micheál Daub of the property, but no mention was made of the oil royalty. In 1923 Cora Bowlus executed a deed of Yz undivided interest to Hardin Mortgage Co. In partition proceedings brought by the Mortgage Co., the court ordered the land sold and a deed was made and executed to one Flechtner by the sheriff.

At the time of the confirmation of the sale the court gave the oil and gas leases and the royalties therefrom to the Mortgage Co., and Daub, to which Flechtner excepts, contending that as he is the purchaser of the land he is entitled to all interest in the remaining gas and oil brought to the surface.

The question presented is — Does such oil and gas rights pass with the land when there is no reservation or exemption made of royalty interests therein?

The Court of Appeals held:

1. The court thinks that such gas and oil as remains in the ground after a sale where no reservation is made goes with the land.
2. In this case the sale was confirmed and a deed executed and being a sale of real es-hold that gas and oil unproduced, passes with the land to the purchaser.

Decree accordingly.

WILLIAMS, J., concurs.

RICHARDS, J.,

dissenting. It is my opinion that a person cannot accept as much of a confirmation of a sale as is of benefit to him and appeal the remainder. Therefore the motion to dismiss the appeal should be granted.  