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SCHOCK v. GILPIN

April 19, 1957

W.O. SCHOCK, PLAINTIFF,
v.
SAM A. GILPIN AND FARM BUREAU OIL COMPANY, INC., A CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Juergens, District Judge.

Jurisdiction of this Court is founded on diversity of citizenship of Title 28 U.S.C.A. § 1332.

The plaintiff is claiming an oil and gas "override interest" in certain premises in White County, Illinois, described as follows, to wit:

The Northeast Quarter of the Northeast Quarter of Section 3, Township 7 South, Range 9 East, of the Third Principal Meridian; and the West Half of the Southeast Quarter of the Southeast Quarter of Section 34, Township 6 South, Range 9 East, of the Third Principal Meridian, all in White County, Illinois, containing 60 acres more or less

It will be unnecessary to detail any of the facts set forth in the complaint or in the answer which was filed to the complaint by the defendant, for the reason that on the trial of this case the following stipulation was entered into by and between the parties to this law-suit which was in words and figures as follows:

    "It is stipulated by and between counsel for the
  defendant, Gilpin, and counsel for the plaintiff,
  Schock, that the issues in this case are now limited
  to whether or not W.O. Schock was the owner of an
  overriding royalty interest in good standing and in
  full force and effect at the time of his execution of
  a release in favor of Gilpin dated October 13, 1954,
  and that in the event and at the conclusion of this
  litigation, it is determined by the Court that Mr.
  Schock was the owner of such an interest, in such
  good standing and force and effect, that the release
  and clarification so executed by Mr. Schock are
  terminated, voided, and set aside by agreement so
  that the same shall have no force and effect.
    "The Court: The stipulation provides that if the
  plaintiff was the owner of the overriding interest,
  in good standing and in full force and effect at the
  time that releases were given, if the Court
  determines that, then the releases are to be set
  aside by agreement?

"Mr. Pearce: That is correct, your Honor.

    "Mr. Schock: We have agreed to further stipulate
  that production on the 80 acres occurred in
  September, 1943, and has continued until this date.

"Mr. Pearce That is correct."

Prior to February 16, 1923, Finis Bryant was the owner of the following described real estate, to wit:

Tract I:

The Northeast Quarter of the Southeast Quarter and the Southeast Quarter of the Northeast Quarter; Section 3, Township 7 South, Range 9 East, of the Third Principal Meridian, White County, Illinois, containing 80 acres, more or less, and also:

Tract II:

The Northeast Quarter of the Northeast Quarter of Section 3, Township 7 South, Range 9 East, and the West Half of the Southeast Quarter of the Southeast Quarter of Section 34, Township 6 South, Range 9 East, of the Third Principal Meridian, White County, Illinois, containing 60 acres, more or less

On February 16, 1923, Finis Bryant died intestate, leaving Alice Bryant, his widow, and Clarissa Mae Aud, Jennie Bean, Luke Bryant, and Jewell Bryant, as his only children and heirs at law, him surviving, and owning the above described real estate.

Under the statute of descent of the State of Illinois, the above described real estate descended to his four children in equal shares, subject to the rights of the widow, which were later extinguished by her death. At the time of his death there was a trust deed outstanding in favor of C.S. Conger as trustee covering Tract I only which was later assigned to Andrew J. Aud, the husband of the above-named Clarissa Mae Bryant Aud. Jewell Bryant, one of the above-named children, died intestate October 10, 1924, leaving his widow, Helena Bryant, (who later remarried to become Helena Bottioux) and Smith Bryant, Waldo Bryant, Ruth Moomey, Tennie Wiggins, and Mae Hampton as his children and only heirs at law, him surviving, and by the laws of descent of the State of Illinois, Jewell Bryant's one-fourth interest in the above described real estate descended to his widow and to his five named children.

Andrew J. Aud, on December 13, 1926, foreclosed the trust deed and became the purchaser at the Master in Chancery sale and received a Master's Deed for the real estate described as Tract I. This proceeding foreclosed all interests of the heirs of Finis Bryant in the 80-acre tract described as Tract I.

On June 9, 1933, Andrew J. Aud acquired a tax deed for the 60 acres described as Tract II, but he being the husband of a co-tenant of this tract, acquired no interest as against the co-tenants by the acquisition of this tax deed. This proposition of law needs no citation of authorities.

On June 10, 1936, Andrew J. Aud and his wife, Clarissa Mae Aud, executed and delivered an oil and gas lease for a term of ten years to R.Z. McGowan to Tracts I and II above described who, in turn, assigned the entire leasehold to The Pure Oil Company. After executing this lease, the Auds conveyed by mineral deed a one-fourth interest in the oil and gas in and under Tract I only to R.M. Purdy and by mineral deed to Walter Duncan, Jr., a one-fourth interest in and to all of ...


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