adequate and valuable consideration for the lands purchased. The Southern Pine Lumber Company introduced a chain of title from Jesse Dendy (one of the heirs at law of J. M. Dendy) to itself. The case by agreement was tried by the court without a jury. The plaintiffs introduced the patent from the state of Texas to J. H. Dendy. It was stipulated that he died intestate, leaving only two children. James M. and Larkin Dendy; that Larkin Dendy died, leaving J. M. Dendy his sole heir; and that plaintiffs and Jesse Dendy are the heirs at law of J. M. Dendy, deceased. The plaintiffs also introduced in evidence the record of administration on the estate of James H. Dendy, showing the appointment of an administrator therefor, the setting apart in 1859 of 200 acres of land as a homestead for the children of the deceased, and the sale of 120 acres of said land in July, 1860, to L. M., Allen, with the deed executed by said administrator on November 19, 1860, to said Allen, and its record; the index stating the grantee as S. M. Allen. The defendant introduced in evidence the judgment in the proceedings in the district court of Cherokee county, Tex., entitled "The State of Texas v. Unknown Parties," which adjudged that the state do recover from said unknown parties the taxes due "on each of the following described tracts or parcels of land, to wit: Seventy-six dollars and forty cents, due on the following described land, being a part of the H. Ellis survey, about 14 miles S. W., from Rusk survey No. 820" (here followed the courses and distances covering the entire survey as described in the patent to Jas. H. Dendy), and ordering a sale of the land to pay said taxes. Defendant proved that an order of sale correctly describing the land was issued, and introduced a return of the sale, referring to an attached order of sale for a more complete description; also a deed from the sheriff of Cherokee county, reciting said order of sale, and said judgment and decree of sale, and conveying the land by the same courses and distances as were given in said judgment and decree of sale to Laura H. Sloan, wife of John A. Sloan. The plaintiffs objected to the introduction of said deed on the ground that neither the judgment nor the return on order of sale contained the same description as in the deed, or any description whatever, which being overruled, plaintiffs excepted. The defendant then proved title in itself, derived from Laura H. Sloan and John A. Sloan. It was agreed that the lands had not been returned by any one for taxes since 1882 to 1897, that no taxes had been paid on them for said years by plaintiffs, or any one, and that they had been assessed by the assessing officers for taxes against "unknown owners" for said intervening years. The land was vacant. The description of the land by courses and distances in the judgment, in the order of sale, and in the deed is the same. The only difference is that in the judgment it is stated to be for the taxes due "on each of the following described lots or parcels of land as follows: Seventy-six dollars and forty cents, on the following described land, being a part of the H. Ellis survey," etc.-then giving courses and distances. The judgment shows this amount of taxes was adjudged (269 F.) against the land described by these courses and distances. The order of sale and the return shows that the land in such courses and distances was that sold for its taxes. The deed conveys the land in such courses and distances being the Harman Ellis survey. That the judgment did not intend to treat the one parcel of land described as consisting of more than one tract is evident from its language. It renders judgment "for the taxes, etc., due on each of the following described lots or parcels of land, as follows: Seventy-six dollars and forty cents due on the following described land"-and then describes the land by courses and distances, stating it to be a part of the H. Ellis survey. There is no intention here disclosed to treat this land as being more than a single tract, and the preceding expressions, to the effect that the taxes of each separate tract were separately assessed against each, when followed by the language of this decree, can only indicate that it finally dealt only with a single tract therein described as such. The general words describing it as a part of the Ellis survey in the judgment and as the Ellis survey in the deed are rendered immaterial, and controlled by the particular descriptions by courses and distances in each, which are identical, and which show that the judgment, order of sale, and deed each described the same land and related to the same tract. Sherry v. McKinley, 99 U. S. 496, 25 L. Ed. 330; Cox v. Hart, 145 U. S. 376, 387, 12 Sup. Ct. 962, 36 L. Ed. 741. [1] There was no request for special findings, and none were made in this case. After the evidence was submitted, the court rendered a judgment in favor of the defendants. It is true that the judge states his opinion as to the validity of the judgment rendered in the case of State of Texas v. Unknown Owners, the foundation of the defendant's title, and that the plaintiffs' cause of action amounts to a collateral attack thereon; but the court makes no special finding, rendering judgment generally in favor of the defendant. This would seem to leave no matter on which error could be assigned, besides the exception reserved to the admission of the sheriff's deed to Mrs. Sloan above disposed of. No objection or exception to the introduction or effect of the judgment is noted. British Queen Min. Co. v. Baker Silver Min. Co., 139 U. S. 222, 11 Sup. Ct. 523, 35 L. Ed. 147; Northern Idaho & Montana P. Co. v. A. L. Jordan L. Co. (C. C. A.) 262 Fed. 766, 777; United States v. Sioux City Stock Yds. Co., 167 Fed. 126, 127, 92 C., C. A. 578; York v. Washburn, 129 Fed. 564, 565, 566, 64 C. C. A. 132. [2] But it seems to us that the opinion of the court that the judgment of the district court of Cherokee county in State of Texas v. Unknown Parties was not subject to the collateral attack made on it in this case was correct. The proof showed that for years this land had not been returned for taxes by any one; that it had been assessed as a single tract by the proper officers to owners unknown for 15 years. No record in the county showed any individuals as the owners since the year 1860. The original petition in this cause shows that the present plaintiffs all reside out of the state of Texas. No present claimants of the part of the tract alleged to have been sold to Allen appear. No one had appeared to pay taxes as the claimant of any part of the en tire tract. The court rendering the judgment heard testimony on the question whether there was any known owner and that the inquiries directed to be made of the county clerk and other officers had been made and no owners could be found. No attack is made on the several steps taken in the case. "It must appear from the record in the cases, in which the judgments were rendered under which appellee claims the tracts of land in controversy, that such judgments were void, and therefore subject to collateral attack, before they can be overcome as a barrier to plaintiffs' right of recovery, even though, but for appellee's deed under them, they had shown title to the premises." Young v. Jackson, 50 Tex. Civ. App. 351, 354, 110 S. W. 74, 76. In a case arising under a very similar statute in the state of Arkansas the Supreme Court of the United States held that whatever would have been a good defense to the original suit brought for the taxes was not the subject of attack in a subsequent suit brought to recover lands sold under the decree in the first suit, and that the decree was not subject to collateral attack because such point may have been incorrectly decided. In that case, as in this, it was urged that the plaintiff only owned a part of the land sold for taxes, and * "Thus, it is urged, the lands plaintiffs in error owned were sold to pay the levee taxes on land they did not own, and their lands were thereby taken without due process of law. What lands were properly assessed to Ballard and what lands he owned were facts to be alleged in the original suit and established by the proof there introduced or by admission through the default of the owners of the lands. If there was error it cannot be a ground for setting aside the decree if the court had acquired jurisdiction to render the decree. Error or irregularities in the suit does not take from it or its decree the attribute of due process. Central Land Company v. Laidley, 159 U. S. 103; Iowa Central R. R. Co. v. Iowa, supra. It is only this aspect of the suit and decree with which we are concerned. No defense, therefore, which could have been made or rights which could have been taken care of in the suit can now be set up to impugn its decree. The statutes of the state, under which the taxes were levied, virtually make the land a party to the suit to collect the taxes. It is from the lands alone, and not from their owner, that the taxes are to be satisfied, and each acre bears its part. The burden of taxation could have been easily and definitely assigned by the court. Mistakes in ascribing the ownership of the lands did not increase the taxation or cast that which should have been paid by one tract of land upon another tract." Ballard v. Hunter, 204 U. S. 241, 258, 27 Sup. Ct. 261, 267 (51 L Ed. 461). The judgment of the District Court is therefore affirmed. ASSOCIATED OIL CO. v. MILLER et al. (Circuit Court of Appeals, Fifth Circuit. December 1, 1920.) Mines and minerals 74—Person who will be affected by decree held indispensable party to suit by grantee of rights under lease. Where by a contract an oil company conveyed to another company all its rights in the oil and gas in leased lands for the purpose of development and operation, the parties to share in the production as therein provided, the grantor reserving the right to re-enter and terminate the conFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (269 F.) tract for default by the grantee, the grantor held an indispensable party to a suit by the grantee against the owner of a tract of the land to enforce its rights claimed under the lease. Appeal from the District Court of the United States for the Northern District of Texas; James C. Wilson, Judge. Suit in equity by the Associated Oil Company against W. L. Miller and others. Decree for defendants, and complainant appeals. Affirmed. C. L. Carter, of Houston, Tex., for appellant. O. C. Funderburk, of Eastland, Tex., and R. E. Hardwicke, of Ft. Worth, Tex., for appellee. Before WALKER, BRYAN, and KING, Circuit Judges. KING, Circuit Judge. This case arises on a bill in equity filed in the United States District Court for the Northern District of Texas by the Associated Oil Company, a corporation chartered under the laws of California, and as such a citizen of California, the appellant, against W. L. Miller and wife and the Gulf Production Company, 2 corporation, all alleged to be citizens of Texas, the appellees, to enjoin them from in any way resisting or contesting the complainant's right of entry and use of the premises stated hereinafter, in the exercise of certain rights claimed by said complainant under an instrument executed between it and the Rio Bravo Oil Company, a corporation of and citizens of Texas. It was dismissed on motion of the defendants on the ground that the Rio Bravo Oil Company, a citizen of the same state as the defendants, was an indispensable party plaintiff thereto, and that said court was therefore without jurisdiction of the case. The parties entered into an agreed statement of fact, by which it appeared that the rights of the complainant arose wholly under a conveyance signed by the Rio Bravo Oil Company and accepted by complainant in writing; the same being executed on the 7th day of July, 1919. The conveyance recited that in consideration of the sum of $10, and in consideration of the performance by the complainants of the terms and conditions thereinafter stipulated, the Rio Bravo Oil Company granted, bargained, sold, and conveyed to said complainant, subject to the performance of said conditions, all of those certain oil, gas, and mineral rights owned by the Rio Bravo Oil Company in and under 87 described tracts of land, including the N. W. 1/4 of section 27, block 4, H. & T. C. Ry. Co. survey, Eastland county, Texas. "Also all other oil, gas, and minerals or mineral rights, and all easements of every kind owned and held or claimed by the Rio Bravo Oil Company in Eastland county, Texas, and in Comanche county, Texas; it being the pur pose of this conveyance to vest in the Associated Oil Company all such rights as the Rio Bravo Oil Company has in and to oil, gas and other minerals in and under lands in Eastland and Comanche counties, Texas, whether hereinabove particularly described or not, and also all rights and easements of any and every kind owned or held by it for the purpose of exploring for, producing, and marketing all such oil, gas, and other minerals. "There is hereby conveyed also, all the rights of ingress and egress, rights of way, and all other rights and easements of any and every kind owned or held by the grantor in and to, over, or upon said premises, hereby investing the grantee with every such right and interest as the grantor has therein. 269 F.-2 "To have and to hold the above-described oil, gas, and mineral rights, rights of way, and easements of any and every kind, unto the said Associated Oil Company, its successors and assigns, forever, upon the conditions following." The conveyance declared its consideration to be as follows: "The consideration to the grantor for the execution of this conveyance is the payment of the royalties and performance of the obligations hereinafter imposed upon the grantee, said payments and said obligations each being conditions upon default in the performance of which the rights herein conveyed to said grantee shall cease and terminate (unless such default is one that comes within the arbitration clause hereinafter set out), and all such rights shall thereupon be revested in the grantor, the Rio Bravo Oil Company." These conditions reserve to the Rio Bravo Oil Company: (a) The equal one-eighth part of all oil produced and saved from any of the premises above mentioned, or, at its election, the market price thereof prevailing the day the oil is run into the pipe line or storage tanks, with provision for time of payment in the event of such election. (b) If gas only is found, and the well or wells are operated for gas, the Rio Bravo Company receives at its election one-eighth of the gas or one-eighth of all sums realized from the sale of such gas. (c) For all gas produced from any oil well and used in the manufacturing of gasoline, or any other product, the Rio Bravo Oil Company is to receive at its election one-eighth of said gas, or one-eighth of all sums of money realized from the sales of said gas, gasoline, or other products. (d) In the event any minerals other than oil or gas are found in paying quantities, the Rio Bravo Oil Company shall receive as a royalty one-half of the sums realized from such minerals. Then follow conditions requiring the opening of wells within certain specified times, and providing for the drilling or making of an offset well or wells, for the development or production of all minerals which may be found in paying quantities, for furnishing to the Rio Bravo Oil Company any or all information derived from drilling or development of any of the properties, with the right to have a representative present at all times, to assist in gauging and measuring all oil, gas, and other minerals, and with the right to inspection of all books and papers. The contract then provides that the complainant shall at its own expense do all drilling and other development work, keeping an accurate account of such cost and expense; that the royalties above specified shall be first deducted from the value and proceeds of all oil and gas; that the complainant shall then reimburse itself for all cost and expense in said contract specified; and that one-half of the remainder of such production shall be paid or delivered, as provided in the case of royalties, to said Rio Bravo Oil Company. Provision is made for arbitration in the event that either of the parties should conclude that any of the operations for development of the properties should be in a manner or way different from that provided in the contract. An extension of time is provided, if the carrying out of the contract is interrupted or delayed by certain specified causes, and that no divestiture of the complainant's title should become effective until the Rio Bravo Oil Company shall give 30 days' written |