Opinion
No. 39667.
May 23, 1955.
1. Minerals — reservation of one-half minerals — no exception as to previous reservation — construction.
Where warranty deed contained reservation reading "I reserve one-half of gas, oil and other minerals," and made no exception of undivided one-half interest in minerals previously reserved by grantor's predecessor in title, that deed was plain and unambiguous and conveyed one-half of the mineral rights to the grantees.
2. Deeds — parol evidence — rule.
Where a deed is plain and unambiguous, parol evidence is not admissible to vary its terms.
3. Deeds — construed as written.
It is duty of Court to construe deed as it is written.
4. Minerals — present owner entitled to one-half minerals — defendant's claim cancelled.
In such case, where grantees in deed referred to in Headnote No. 1 subsequently conveyed all their interest to present owner, present owner was entitled to one-half of all the minerals, and there was no error in cancelling all claims of the defendant to any mineral interest in the land.
Headnotes as approved by Arrington, J.
APPEAL from the Chancery Court of Perry County; LUTHER A. SMITH, Chancellor.
Williams Williams, Poplarville, for appellant.
I. The Chancellor committed reversible error in failing and refusing to accept and conform his findings to the undisputed testimony. Crichton v. Halliburton, 154 Miss. 265, 122 So. 200; Gerard v. Gill (Miss.), 15 So.2d 478; Perret v. Borries, 78 Miss. 934, 30 So. 59, 73 A.L.R. 152; Smith v. Cook, 213 Miss. 876, 58 So.2d 27; Tarver v. Lindsey, 161 Miss. 379, 137 So. 933; Teague v. Brown, 199 Miss. 262, 24 So.2d 726; Walker v. Polk, 208 Miss. 38 44 So.2d 477.
II. The language used in the reservation when looked to without the aid of extrinsic evidence reserved or excepted one-half of the oil, gas, and other minerals to the grantor, I.A. Garraway. Beasley v. Shinn, 144 S.W.2d 710, 131 A.L.R. 1234; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729; Liverpool Ins. Co. v. DeLaney, 190 Miss. 404, 200 So. 440; McNeese v. Renner, 197 Miss. 203, 21 So.2d 7; Moss v. Jordan, 129 Miss. 598, 92 So. 689; Anno. 131 A.L.R. 1243; Vol. I, Summers on Oil and Gas, Sec. 137 p. 352.
III. Appellees by resorting to extrinsic evidence subjected the language in the reservation to two interpretations, making parol evidence admissible to explain the meaning of the language contained in said reservation. Bowers v. Andrews, 52 Miss. 596; Claughton v. Leavenworth, 204 Miss. 595, 37 So. 776; Clay v. Field, 138 U.S. 464, 34 L.Ed. 1044; Jefferson v. Walker, 199 Miss. 705, 26 So.2d 239; Ladner v. Ladner, 75 Miss. 777, 23 So. 430; Peacher v. Strauss, 47 Miss. 353; Schlottman v. Hoffman, 73 Miss. 188, 18 So. 893, 55 Am. St. 527; Selden v. Coffee, 55 Miss. 41; Bouvier's Law Dictionary (Baldwin's 1934 edition), term "latent ambiguity"; Mississippi Digest, Evidence, Key No. 452.
IV. Construction of Garraway deed by the parties thereto shows conclusively that Garraway meant by language of reservation to reserve and except unto himself one-half of the oil, gas, and other minerals. Cummings v. Midstates Oil Corp., 193 Miss. 675, 9 So.2d 648; Insurance Co. v. Tuscaloosa V. Co. (Ala.), 186 So. 134; Shoreline Oil Corp. v. Guy (La.), 189 So. 348; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296; 16 Am. Jur., Secs. 168, 171 pp. 531, 534; 26 C.J.S., Sec. 83 p. 324.
R.L. Calhoun, Hattiesburg, for appellees.
I. The Chancellor was correct in excluding the offered parol testimony by the appellant in an attempt to explain or contradict the terms of an unambiguous deed. H. Weston Lbr. Co. v. Lacey Lumber Co., 123 Miss. 208, 85 So. 193; 16 Am. Jur. 686-87.
II. When language of deed is unambiguous, Court will look solely to deed itself. Gulf S.I.R.R. Co. v. Patten, 180 Miss. 756, 178 So. 468; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296.
III. The provision in the deed from Garraway to the Fairleys is unambiguous. Salman Brick Lbr. Co., Ltd. v. Williams 210 Miss. 560, 50 So.2d 130.
IV. The Court had the duty to construe the instrument as written. Dale v. Case, 217 Miss. 298, 64 So.2d 344.
V. Garraway is estopped by his general warranty in his deed from claiming any of the one-half mineral interest claimed by his grantees and their privies, the complainants therein. Millican v. McNiell, 102 Tex. 189, 114 S.W. 106, 21 L.R.A. (N.S.) 60, 132 Am. St. 963, 20 Ann. Cas. 74; Salman Brick Lbr. Co., Ltd. v. Williams, supra; 19 Am. Jur. 606-607.
VI. In reply to points I and II of appellant's brief. Salman Brick Br. Co., Ltd. v. Williams, supra; Sumter Lumber Co. v. Skipper, supra.
APPELLANT IN REPLY.
I. There is nothing in the deed to indicate or inform the Court that grantor owned only one-half of the minerals, and on its face the deed unquestionably and unmistakably excludes therefrom and reserves unto the grantor, I.A. Garraway, "one half of all gas and oil and other minerals." Bowers v. Andrews, 52 Miss. 592; Carmichael v. Foley, 2 Miss. (How.) 591; Magnolia Textiles, Inc. v. Gillis, 206 Miss. 797, 41 So.2d 6; Peacher v. Strauss, 47 Miss. 353; Selden v. Coffee, 55 Miss. 41; 3 Words and Phrases, term "ambiguitas latens."
This suit was filed in the Chancery Court of Perry County by N.G. Bryant and Charles W. Kelly against I.A. Garraway to remove clouds from the title to an undivided one-half interest in all oil, gas and other minerals, in, on and under 80 acres of land, which mineral interest was alleged to be owned by N.G. Bryant and leased to Charles W. Kelly. The defendant, appellant herein, denied that N.G. Bryant owned an undivided one-half interest in the minerals and claimed to be the owner thereof by virtue of a reservation in a deed from appellant to the predecessors in title of Bryant.
The chancellor cancelled all claims of appellant to the oil, gas and other minerals. The facts are as follows: On January 20, 1937, the Federal Land Bank of New Orleans conveyed to I.A. Garraway the lands involved herein, with the following reservation: "One-half interest in all minerals is hereby reserved to the grantor." On March 12, 1945, I.A. Garraway conveyed the same lands to A.J. Fairley and wife, Alice Fairley, by warranty deed, which deed contained a reservation reading, "I reserve one-half of all gas, oil and other minerals." No exception was made of an undivided one-half interest in the minerals which had previously been reserved by the Federal Land Bank. Thereafter, on July 2, 1953, A.J. Fairley and Alice Fairley conveyed all their interest in the oil, gas and other minerals to N.G. Bryant. On July 3, 1953, N.G. Bryant executed an oil, gas and mineral lease to Charles W. Kelly for a primary term of ten years.
It is the contention of appellees that by virtue of the warranty deed executed by I.A. Garraway to A.J. Fairley and Alice Fairley, that the grantees in said deed acquired the title to an undivided one-half interest in the oil, gas and other minerals which was subsequently conveyed by them to N.G. Bryant.
Appellant contends that it was not his intention to convey any interest in the oil, gas and other minerals, but that he intended to reserve unto himself the one-half interest in the minerals owned by him, and that the chancellor erred in holding that parol evidence was inadmissible to show that the reservation in his deed was for the purpose of reserving unto himself one-half of the oil, gas and other minerals.
This case is controlled by the case of Salmen Brick Lumber Co., Ltd. v. Williams, et al., 210 Miss. 560, in which this Court said:
"The 1926 deed considered alone unambiguously conveyed the surface and one-half of the minerals to the grantee, the Williams Yellow Pine Company. It conveyed by general warranty the `fee simple' title, reserving one-half of the minerals. The deed in no way indicates that the grantor owned only one-half of the minerals, and on its face it vested in appellees' predecessor in title, the Williams Company, one-half of the minerals. Yet appellants say that the grantor therein failed to convey what it warranted it was conveying, because under the precedent exception in the Hines Trustees, the grantor, Salmen Company, had only one-half of the minerals when the deed was executed. But there is no ambiguity on the face of the 1926 deed; it conveyed to the Williams Company one-half of the minerals."
(Hn 1) The deed from I.A. Garraway to A.J. Fairley and Alice Fairley was plain and unambiguous, and conveyed one-half of the minerals. (Hn 2) Parol evidence was, therefore, inadmissible to vary the terms of the deed. Sumter Lbr. Co., Inc. v. Skipper, et al., 183 Miss. 595, 184 So. 296. (Hn 3) It is the duty of the Court to construe the deed as it is written. Abeney v. Lewis, 213 Miss. 105, 56 So.2d 48; Dale v. Case, 217 Miss. 298, 64 So.2d 344, 37 A. . R.2d 811; Westbrook v. Ball, (Miss.) 77 So.2d 274.
(Hn 4) When the deed is considered with the deed from the Federal Land Bank to Garraway, an item in the chain of title of appellees, it necessarily follows, since Garraway only acquired an undivided one-half interest in the minerals by deed from the Federal Land Bank, and since he warranted the title to an undivided one-half interest in the oil, gas and other minerals to A.J. Fairley and Alice Fairley, that the chancellor committed no error in cancelling all claims of appellant to the undivided one-half interest in the oil, gas and other minerals owned by N.G. Bryant.
Affirmed.
McGehee, C.J., and Hall, Kyle and Gillespie, JJ., concur.