TAYLOR

v.

BRINDLEY

MURRAH, Circuit Judge.

The appellant, H. H. Taylor, sued the appellee, Ethel M. Brindley, to quiet the title to an oil and gas lease covering fifteen acres of royalty under described land in Oklahoma County. The issues before the trial court, as shaped by the pleadings, stipulations and pre-trial conference, were (1) whether a mineral deed executed by Brindley to one Stinchcomb, when coa strued together with a contemporaneous contract, authorized him to execute the oil and gas lease in question without the consent of Brindley; and (2) if not, did the appellee subsequently ratify the lease; or (3) is she estopped to deny its validity.

Construing the deed and contract together, the trial court held that they did not authorize the execution of the oil and gas lease without the consent of appellee, and that she neither ratified the same nor was estopped to deny its validity. The same questions are presented on appeal.

In support of its judgment, the trial court found that Stinchcomb was desirous of purchasing a mineral interest in land belonging to one Shellenbarger, but was unable to do so because of personal differences betweeii them. Brindley and Stinchcomb entered into an arrangement, as on other occasions, whereby Stinchcomb would furnish the money, and appellee would buy the interest and convey it to Stinchcomb to secure his purchase money. Upon the sale of the interest, the parties would share equally in the profits after the purchase money and necessary expenses had been repaid.

Pursuant to this arrangement, appellee purchased thirty-five acres of royalty under the land from Shellenbarger for $2625 furnished by Stinchcomb, and on the next day, May 1, 1930, conveyed the same by mineral deed to Stinchcomb. The deed in conventional form recited that it was subject to an oil and gas lease and in the event of its termination, all future rentals for oil and gas should be owned by the grantee. On the following day, in order to record their oral arrangement, the parties entered into a written contract, reciting that Stinchcomb had paid the purchase price for the mineral interest involved in the sum of $2,625 and in consideration thereof and mutual promises and agreements, Brindley had transferred, assigned and delivered to Stinchcomb a deed to the interest, subject to the following conditions: “It is understood and agreed that the party of the first part [Stinchcomb] is to hold the title by virtue of said deed last above described, and in the event of the sale of the said royalty or any part thereof, the profits of sale price are to be divided equally among the parties in the following proportions, * * * It is further understood and agreed that no sale of said interest above described, shall be compulsory on the other party or binding, unless a minimum price of $150.00 per a'cre is secured, and in the event said minimum price of $150 00 per acre is secured, then the act of each of both parties shall be binding on each of the parties in effecting the sale of said interest. * * * or in the event that no sale is consummated, the parties hereto shall share and share alike in the royalties, rentals, bonuses, or any other proceeds that may accrue hereunder and in direct proportions and on the same terms and conditions as above set forth. * * *”

Stinchcomb subsequently sold three acres of the royalty for $150 per acre;' Brindley did not join in the conveyance, but was notified of the sale and given credit on the purchase price. Thereafter and on October 7, 1943, Stinchcomb executed the oil and gas lease in question to Chudacoff and Smith for $12.50 per acre.

On April 26, 1944, Chudacoff and Smith assigned the lease to appellant, Taylor, and the same was filed of record on July 26, 1944. Brindley did not learn of the lease or its assignment until May, 1944, when the Magnolia Petroleum Company advised her of it during negotiations for a lease. Immediately upon learning of the outstanding lease, Brindley notified all interested parties that Stinchcomb had no authority to execute a lease covering her interest in the minerals. These conditions eventuated this lawsuit.

It was, and is, the contention of appellant that the mineral deed, being absolute and unconditional in form, certainly authorized the granting of an oil and gas lease without the consent of the appellee as grantor; that since the contemporaneous contract did not expressly prohibit, but clearly contemplated a leasing in the event of no sale, the conclusion is inevitable that the deed and contract, when construed as one instrument, contemplated and authorized Stinchcomb to execute the oil and gas lease in question. He says the conduct of the parties is confirmatory of this construction, and points to the execution by Stinchcomb of the mineral deed to the three acres of royalty for $150 per acre; the change of the depository agreement without objec dons; the writing' of a letter by appellee to Stinchcomb in May 1945 which stated, “We executed a lease,” all as convincing evidence of their mutual understanding with respect to Stinchcomb’s power to execute a lease. Appellant also invokes the pre-trial conference agreement in which appellee conceded that the only limitation upon Stinchcomb’s power to lease was a minimum sale price of $150 per acre.

These facts, say the appellant, bring the case within the doctrine of Pauly v. Pauly, Okl.Sup., 176 P. 2d 491, in which one brother executed a quitclaim deed to the other of his interest in jointly owned property. Contemporaneously with the execution of the deed, the grantee, joined by his wife, executed a memorandum on the bottom of the deed in which it was recited that in the event of oil production on the land, the grantees “agree to remit annually one-third of royalty payments received to Frank R. Pauly, or his heirs.” The Oklahoma Court held that the deed and contract, when construed as one instrument, while not a conveyance or reservation of a mineral interest, or an agreement to convey at some future date, did give the grantor a right analogous, or in many respects similar, to an oil payment in the nature of a covenant running with the land. Further defining the right, the court held that the grantor was not entitled to any share of the bonus money received by the grantees from leases, or to participate in the making of oil and gas leases, or to share in the rentals, his interest entitling him only to a share in the actual production.

By analogy, the appellant reasons that the contract and agreement in our case, when construed as one instrument, gave the appellee a right to one-half of the profits derived from the sale of the mineral interest, or “the royalties, rentals, bonuses, or any other proceeds that may accrue,” but did not grant him an interest in the minerals conveyed in the deed. It is said that in any event, the restriction in the contract upon the sale or leasing is in the nature of a covenant running with the land, and not a conditional limitation upon the power to convey; that the only duty imposed upon Stinchcomb is to account for the rents and profits from the sale or leasing of the mineral interest, and the only remedy for the breach of this duty is specific performance or for damages. In that connection, our attention is called to a cause of action asserted by the appellee in a cross complaint to a suit by Stinchcomb upon promissory notes filed in the District Court of Oklahoma County in 1935. The asserted cause of action was to recover damages from Stinchcomb in the amount of $1155 by reason of his failure to consummate a sale of the mineral interest involved pursuant to an offer she is alleged to have received for $150.00 per acre. It is suggested that Brindley, having chosen to bring an action in damages against Stinchcomb for his alleged breach of the contract, she made an election of inconsistent remedies, and is now precluded from insisting upon a performance of the contract as she now construes it.

The appellee would have us treat the deed and contract as creating the relationship of tenants in common, and if not tenants in common, then trustee and beneficiary. It is said that the question for decision is not whether the contract expressly limited Stinchcomb’s authority to lease appellee’s interest, but whether the appellee expressly delegated such authority to her cotenant in the contract; that in the absence of express authority, Stinchcomb had no right to execute the lease as a matter of law.

It is important to consider what legal relationship between the parties was created by the controlling instruments in order to determine what legal and enforceable rights the law has given the parties occupying that particular relationship. It has been well said that “the question of what relationship is created by a given agreement between parties after the scope of the agreement has been determined, is one of law.” Smith v. Cantner, 186 Okl. 348, 97 P. 2d 896, 898.

The trial court held the deed a conveyance for the purpose of holding the mineral interest as security for the purchase price; that the subsequently recorded contract determined the powers of the holder of the legal title to sell or lease such property; that the contract specifically author- Led either party to sell and convey the mineral interest, or any part thereof, for a minimum of $150.00 per acre; and in the event of no sale, the contract contemplated a leasing of the interest. But, the court was of the opinion that the contract being silent in respect to the authority of either to execute a lease, Stinchcomb was unauthorized either as the holder of the legal title, as cotenant, or as trustee, to execute the lease in question without the consent of appellee.

A tenancy in common is a joint estate in which there is a unity of possession, but separate and distinct titles. Fry v. Dewees, 151 Kan. 488, 99 P. 2d 844; Vol.⁴¹, Words and Phrases, Perm. Ed., page 319; Tiffany Real Property, 3d Ed., Section 426. There is no privity or fiducial relationship between cotenants. Phillips v. Homestake Consolidated Placer Mines Co., 51 Nev. 226, 273 P. 657; Allred v. Smith, 135 N.C. 443, 47 S.E. 597, 599, 65 L.R.A.

924. The relationship may be involuntary, and does not contemplate a joint venture or joint profit. See Feagin v. Champion, 195 Okl. 116, 155 P. 2d 518. The owners of an undivided mineral interest are tenants in common, and each cotenant may lease his interest in the property without the consent of the others. But in the absence of an express agreement, one co-tenant is not the agent of the others, and an oil and gas lease executed by him is effective only as to his interest, and ineffective as to his cotenants. Earp v. Mid-Continent Petroleum Corp., 167 Okl. 86, 27 P. 2d 855, 91 A.L.R. 188; Moody v. Wagner, 167 Okl. 99, 23 P. 2d 633; Howard v. Manning, 79 Okl. 165, 192 P. 358, 12 A.L.R. 819; Prairie Oil & Gas Co. v. Allen, 8 Cir., 2 F. 2d 566, 40 A.L.R. 1389; Thornton Oil & Gas, Sec. 435; Tiffany Real Property, Vol. 2, Sec. 458; See Annot. 40 A.L.R. 1400, 91 A.L.R'. 205.

This being so, it follows that if the deed and contract established merely a cotenancy in the minerals, our quest is at an end, because there was no express authority of one cotenant to lease the interest of the other, and the law will not infer any such authority simply because a leasing was contemplated. Howard v. Manning, supra, 79 Okl. 165, 192 P. at page 362, 12 A.L.R. 819; Hawkins v. Klein, 124 Okl. 161, 255 P. 570; Utilities Production Corp. v. Riddle, 161 Okl. 99, 16 P. 2d 1092. We think, however, that the parties here were more than mere co-owners of an undivided mineral interest — their relationship went farther and deeper than that.

When two or more persons enter upon a specific venture, wherein a joint profit is sought, without any actual partnership or designation, they become co-adventurers in the enterprise.

O. K. Boiler & Welding Co. v. Minnetonka Lumber Co., 103 Okl. 226, 229 P. 1045; Perry v. Morrison, 118 Okl. 212, 247 P. 1004; McKeel v. Mercer, 118 Okl. 66, 246 P. 619; Coryell v. Marrs, 180 Okl. 394, 70 P. 2d 478; Feagin v. Champion, 195 Okl. 116, 155 P. 2d 518; Bowmaster v. Carroll, 10 Cir., 23 F. 2d 825; see Annot. 63 A.L.R. 909; Tres Ritos Ranch Co. v. Abbott, 44 N.M. 556, 105 P. 2d 1070, 130 A.L.R. 963, 968. “A profit jointly sought in a single transaction by parties thereto is the chief characteristic of a joint venture.” Commercial Lumber Co. v. Nelson, 181 Okl. 122, 72 P. 2d 829, 830; see also Sinker v. Johnson, Okl.Sup., 178 P. 2d 608; Fedderson v. Goode, 112 Colo. 38, 145 P. 2d 981; Kasishke v. Baker, 10 Cir., 146 F. 2d 113. The case of Feagin v. Champion, supra, serves to demonstrate the difference between a joint adventure and tenants in common. Specifically, it has been held that where, as here, one person purchases a mineral interest and assigns it to another as security for the purchase price, with the agreement to divide the profits of a resale, the arrangement is a co-adventure. Martin v. Morrison, Tex. Civ.App., 260 S.W. 893.

When, in pursuance of the oral agreement, Brindley purchased the mineral interest with funds furnished by Stinchcomb, for the purpose of resale and a division of the net profits, both parties thereupon acquired a presently vested interest in the described minerals. Sasiske v. Baker, supra. And as between themselves, and those having actual knowledge of the arrangement, they became joint adventurers in the enterprise. It mattered not who held the naked legal title — the holder was the trustee for his co-adventurer.

O. K. Boiler & Welding Co. v. Minnetonka, supra; Cassidy v. Gould, 86 Okl. 217, 208 P. 780; Perry v. Morrison, supra; Dobbins v. Texas Co., 136 Okl. 40, 275 P.