Melby

This action was brought to quiet plaintiff’s title to the land described in the complaint. The defendant answered denying plaintiff’s title thereto and alleging title in himself. By way of a cross-complaint the defendant seeks declaratory relief under the provisions of sections 1060 et seq. of the Code of Civil Procedure. The plaintiff admits the existence of an actual controversy as defined in the code sections above referred to, but denies the other material allegations of the cross-complaint. Judgment went for defendant and cross-complainant, and plaintiff appeals.

It appears from the evidence that on November 18, 1925, John S. Holmstrand and Ida S. Holmstrand, the predecessors in interest of the plaintiff in this action, conveyed to the defendant Paul Melby the property in dispute, subject to the following exceptions: “Save and except that said John S. Holmstrand and said Ida S. Holmstrand shall together be entitled to one per cent of all oil produced, or that may be produced, from said lots, or any of them, but, in the event that said Paul Melby shall hereafter sell said lots, or any of them, then, in lieu of the foregoing share in any oil produced, or that may be produced,…