The opinion
Mtjisdock, J., dissenting: I dissent from that part of the opinion which holds that there was a lease of mineral rights including oil and gas underlying the surface lands which were sold. Both parties agree that the transaction of December 28,1938, effected a sale of the surface lands and one of the instruments executed on that date was a warranty deed conveying those surface lands. The deed, by its terms, purported to convey everything which the sellers had except a retained fractional interest in the minerals. Since the deed was sufficient to convey the surface lands, then it must have been sufficient to convey a fractional interest in the minerals. The supplemental agreement did not change the conveyance of the minerals into a lease while leaving the conveyance of the surface lands stand. The supplemental agreement had a purpose which was not inconsistent with a conveyance of the minerals. I think that the petitioners sold a fractional interest in the minerals to Humble and a capital gain resulted.