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ELLA MAE BOURN, et al. v. TOMLINSON INTEREST

SEPTEMBER 05, 1984

ELLA MAE BOURN, et al.
v.
TOMLINSON INTEREST, INC., et al.



EN BANC.

WALKER, PRESIDING JUSTICE, FOR THE COURT:

The petition for rehearing is sustained, the former opinion withdrawn and this opinion substituted therefor.

That portion of the first opinion dealing with the appeal on the merits is adopted unchanged and appears herein as Part I of this opinion.

 Part II of this opinion deals with the petition for rehearing.

 The petition for rehearing deals with this Court's reversal of the lower court for overruling the appellants' motion to amend their pleadings after the chancellor had ruled on motions filed by the plaintiffs and defendants for summary judgment.

 PART 1

 Ella Mae Bourn, Willie Fay Bourn Thomas, Irby Jean Bourn Adkins, W. C. and Hazel H. Letchworth, plaintiffs, have appealed from a summary judgment of the Lawrence County Chancery Court in favor of the defendants Tomlinson Interests, Inc., a Texas corporation, C. T. Carden, Darrell M. Fink, Louisiana residents, and David B. Dale, Alan Berry, and David L. Perkins, Mississippi residents.

 We find the chancellor was correct in entering a summary

 judgment on the issue raised by the pleadings and affirm on such finding.

 On July 14, 1938 Homer Buckley owned real property in Lawrence County. On that date he and his wife executed a mineral deed, entitled, however, "Mineral Right and Royalty Transfer" to one Keith Kelly, in which they conveyed and warranted to the grantee an undivided one-half (1/2) interest in the minerals of the realty.

 On November 4, 1939 Buckley and his wife executed a mineral deed to Mrs. N. B. Dale of "an undivided fifteen-sixteenths (15/16) interest in, to and of all oil, gas, and other minerals" on the remaining realty owned by Buckley. *fn1 This latter deed also reserved to the grantors a one-sixteenth (1/16) "royalty interest." The final paragraph contained a general warranty of title.

 Plaintiffs are the successors in title to the Buckleys. On May 9, 1982 some 42 years after the Buckleys executed the mineral deed to Mrs. Dale, and there was a producing well on the realty, plaintiffs filed a complaint for an injunction against the defendants, the successors in titles to Mrs. Dale, and the well operator. The complaint alleged plaintiffs owned an undivided one-sixteenth (1/16) royalty interest in the realty, conveyed in the Dale deed, but the defendants refused to recognize their ownership and refused to pay them any royalty. The suit was for an accounting, and an injunction requiring cessation of production until plaintiffs had been paid all due them on royalties, and thereafter a decree requiring payment of one-sixteenth (1/16) royalty.

 The chancellor sustained a motion to dismiss under Rule 12(b) of our Mississippi Rules because the complaint failed to state a cause of action, and granted ...


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