Opinion op the Court by
Affirming.
*828 This еquity action was filed in the Wayne circuit court on April 20, 1944, by appellee, and plaintiff below, S. J. Bell, against appellant, and defendant below, James W. Jones, seeking to quiet the title óf appellee to thе oil and gas in place under 670 acres of land in Wayne County. It is alleged in appellee’s petition that he was the absolute owner of all the minerals under his tract and that appellant is claiming to be the owner of the same minerals, thereby slandering his title thereto. The answer denied plaintiff’s title to the contested minerals—claiming them as his—and sought a similar judgment in his favor. The court upon final submission sustained plaintiff’s prayеr and adjudged that he “is now and was at the time of the filing of this action the owner of the oil and gas in place” in the 670 acres tract of land and that the alleged title of the defendant, James W. Jones, “is spurious and cast a cloud upon the plaintiff’s title to said oil and gas in place,” to reverse which defendant prosecutes this appeal.
The undisputed facts out of which this litigation arose are: That a short while рrior to the October 1904 term of the Wayne circuit court the then guardian of appellant (he then being an infant) filed an action in that court against his ward and the. latter’s mother, each of whom owned an undivided оne-half interest in a larger tract of 1,000 acres, by which plaintiff sought the sale of such jointly owned tract, which the court finally adjudged and ordered its Master Commissioner to make the sale. This was done October 19, 1906, when the Kentucky Colonel Oil Company became the purchaser at the price of $8,000. The sale was reported by the Commissioner, which was confirmed, followed by the Commissioner’s deed to the purchaser. That аction will hereinafter be referred to as the “old suit.” No part of that record is filed with and made a part of the instant case, except the report of sale by the Master Commissioner and the deed thаt he executed to the Kentucky Colonel Oil Company, which will be hereinafter referred to as “the company.” In the Commissioner’s deed there is this reservation:
“Excepting and reserving, however, from the lands abоve set out and described, to the plaintiff Sue A. Jones and the defendant James W. Jones, the royalty reserved to them as lessors m the oil and gas lease on *829 said land, now owned by the Kentucky Colonel Oil Company.” (Our emphasis)
The royalty interest sо reserved was created by a lease which appellant’s mother, Sue A. Jones, and his guardian, C. J. Bohon, executed to W. J. Geary on Febr ruary 28, 1903, whereby the lessee therein was given the right to explore and takе from the tract of land that was sold, oil and gas for a period of one year “and as long thereafter as oil or gas, or either of them, is produced from said land by the party of the second part. ’ ’
It will thus be sеen that the only reservation con1 tained in the Master Commissioner’s deed to the company was the royalty that might accrue to the lessors under the Geary lease. Shortly after its execution Geary assignеd and transferred that lease to the company, and it thereafter exercised the privileges conferred upon it by the lease and was doing so at the time.the sale was made under the judgment rendered in the old suit, paying the royalty to the guardian of appellant, and his mother, until the latter died, after which the entire royalty was paid to appellant’s guardian until he became of age, which was more than 30 years prior to the filing of the instant action, during which period he was a citizen of the state of Texas to which he immigrated after the Commissioner’s sale in the old suit.
The company continued the operation of the lease until 1930 when it assigned its rights thereunder to one Daugherty who operated it for one year thereafter when the production became so small as to render it unprofitable. He then abandoned the lеase and drew the casing from the wells that had been sunk and moved all his equipment off the tract, thus terminating all of the royalty rights that were reserved in the Master Commissioner’s deed.
Neither appellant’s mother, nor his guardian while he was an infant, nor he himself after arriving at adult age, listed for taxation or paid taxes on the oil and gas in place underlying the tract of land that the Commissioner sold, nor was any subsequent lease made by appellant for the extraction of such minerals at any time after the company obtained its deed from the Master Commissioner in the old suit,' although plaintiff’s former *830 guardian, C. J. Bohon, testified that he, for and on behalf of his former ward, made some attempts to negotiate a lease but without success.
In defendant’s answer herein he alleged that the judgment in the old suit under which the Master Commissioner sold the property, as hеreinbefore stated, reserved to appellant and his mother the title to the oil and gas in place, under the sold tract, and, in substance, that the Master Commissioner in executing his deed by oversight or mistake limited the rеservation in that judgment to only the royalty interest accruing from the Geary lease. To that defense appellee interposed the plea of nul tiel record as to the alleged reservation relied on by aрpellant, thus casting the burden on appellant to prove the allegedly adjudged reservation upon which he relied.
The only evidence by which that reservation could be proven by the one having the burdеn to establish it is to introduce, as a part of the record in this case, the original judgment in the old suit, or a certified copy of it to be relied on as evidence, or to file with the petition as an exhibit to be sо relied on a certified copy thereof. No such course was pursued by appellant’s counsel, a fact which they admit, but argue that the trial court was authorized to take judicial notice, at the triаl of this case, of the entire record of the old suit. One answer to that contention is: that even if the trial court, from whose judgment this appeal is prosecuted, could take such judicial notice as contended for, it would not follow that this court, being an appellate one, possessed like authority, since we do not take judicial notice of the records of circuit courts in prior cases finally determined by them. However, the law seems to be well settled that trial courts do not take judicial notice of their own records in cases finally disposed of, and especially so when the parties, as well as questiоns involved, are different from those in the case on trial. The latest text authority supporting that proposition is found in 20 A. J. 104, 105, secs. 86 and 87. The first section says:
“It is well settled that a court will take judicial notice of its own records in the immediate case or proceeding before it * * *. It is unnecessary to offer evidence of a former trial and the verdict returned on such *831 trial, since a court judicially knows of all prior proceedings in the same case, although where, under a statute, the basis of a certain penalty is a former conviction of the same offense, the court will not take judicial notice of such conviction, but it must be alleged and proved. ’ ’
In the- second section the text says:
“In the trial of a case before it, a court ordinarily will not, upon either its own motion or suggestion of counsel, take judicial notice of the records, judgments, and orders in other and different cases or proceedings, even though such cases or proceedings may be between the same parties and in relation to the same subject matter. In other words, a court in deciding, onе case, will not take judicial notice of what may appear from its own records in another and distinct case, unless made part of the case under consideration by the formal introduction of such records in evidence. ’ ’
That rule has been approved by this court in a number of cases, the latest of which is Maynard v. Allen,
“* * * The rule in this jurisdiction is that in a case pending before it a court will take judicial notice of a record in the same court in a case involving the same parties and the same questions, but will not take judicial notice of records in other cases. Board of Education of Cumberland County v. Jones,
If, however, the rule were different and the trial court in this case should have taken judicial notice of the reservation contained in the Master Commissioner’s
*832
deed executed 'by Mm to tbe company, then it would appear that the Master Commissioner, in executing that .deed, made a mistake or was guilty of an oversight whereby he did nоt make the sale or execute his deed in accordance with the judgment of the court directing him to do so, and relief from which became barred after the expiration of ten years from the time the deed was approved by the court and delivered to the purchaser. This court so held in the cases of Woods v. James,
In the cases of Johns v. Farley,
It appears from the recоrd that appellant became of age 30 or more years before this action was filed and before he sought relief against the mistake or oversight (if made) made by the Master Commissioner in Ms deed to the company during the entire period no effort was made to correct or cancel that deed on account of such oversight or mistake, and since it conveyed the absolute title to the land sold with the sole exemption of appellant’s rights accruing from the Geary lease, such reserved rights ceased and became ineffective after it was terminated and no longer effective. ' The court, therefоre, committed no error in adjudging that appellee was the owner of the entire tract of land he purchased from the company in 1914, including not only the surface, but the minerals in place thereunder.
Wherefore;. for the reasons stated, the judgment is affirmed.