Summary
suggesting judgment in favor of deceased defendant was either voidable or erroneous
Summary of this case from Rowland v. GGNSC Ripley, LLCOpinion
No. 36369.
December 9, 1946. Suggestion of Error Overruled June 9, 1947.
1. JUDGMENT.
Where trial court had acquired jurisdiction of subject matter and of the person of joint complainants and joint defendants and, without knowledge of any of parties or court, one of joint defendants died shortly prior to final decree, decree was not absolutely void as to other parties defendant, and was at most only voidable or erroneous as to defendant who died.
2. APPEAL AND ERROR.
While trial court had acquired jurisdiction of subject matter and of person of joint complainants and joint defendants and, without knowledge of any of parties or court, one of joint defendants died shortly prior to final decree which was favorable to defendants, motion of heirs of deceased defendant to dismiss appeal taken by one of plaintiffs would be overruled, but heirs' motion to be substituted as appellees would be granted, so as to allow them to retain oversight over their interests throughout the appeal upon its merits.
ON THE MERITS. (Division A. April 14, 1947. Suggestion of Error Overruled June 9, 1947.) [30 So.2d 44. No. 36369.]1. CONTRACTS.
Valid provisions in a contract must be given some effect, unless meaningless, in a construction of the contract.
2. COVENANTS. Mines and minerals.
Provision in mineral right and royalty transfer that conveyance was made subject to any valid and subsisting oil, gas, or other mineral lease or leases on the land, could not be ignored in construction of the instrument, and was deemed to qualify the warranty of title given by the grantor.
3. COVENANTS.
Grantor, in executing a mineral right and royalty transfer subject to any valid and subsisting mineral lease, was presumed not to have intended to warrant unqualifiedly to the grantee that which he conveyed, where three days prior thereto he had conveyed by lease to oil company mineral interests for a substantial cash consideration.
4. MINES AND MINERALS.
Where owner of mineral interest in 268 acres conveyed all his interest to oil company on October 8, and on October 11 he conveyed his mineral interest to individual subject to any subsisting lease, and on October 12 company discovered that 11 acres had been inadvertently omitted from its lease, and a correct lease for the full 268 acres was obtained without payment of any additional compensation and lease of October 8 was surrendered, company held a valid lease to entire 268 acres.
5. ESTOPPEL.
Where owner of mineral interest conveyed all his interest to oil company, and thereafter he conveyed his mineral interest to individual subject to any subsisting lease and expressly granted to individual a one-half undivided interest in rentals and royalties accruing under any subsisting lease, individual could not accept a conveyance of one-half of the rentals and royalties under the subsisting lease and then reject that portion of his lease which expressly made it subject to subsisting lease.
6. MINES AND MINERALS.
Registry statutes were inapplicable where grantee accepted a conveyance which granted the grantor's mineral interest subject to any subsisting lease, and which gave the grantor one-half of the rentals and royalties under any subsisting lease, though prior subsisting lease to oil company was not recorded at the time (Code 1942, secs. 867-869).
7. MINES AND MINERALS.
Where trust deed was not filed for record until two days after mineral conveyance was made, but trust deed was filed for record two days prior to filing of the mineral conveyances, the trust deed had priority over the mineral conveyances (Code 1942, secs. 867-869).
8. MORTGAGES.
Foreclosure sale of trust deed was not void because land was offered for sale by 40-acre tracts, and then as a whole (Code 1930, sec. 2167; Const., sec. 111).
9. MORTGAGES.
Foreclosure of trust deed was not void because copy of notice thereof was posted at each of the courthouses of two separate judicial districts of the county.
10. MORTGAGES.
Foreclosure of trust deed was not void because publication of notice of foreclosure sale was made only in a newspaper published in second judcial district of county, whereas land was located in first district in which the sale was made, where there was no newspaper published in the first district.
11. MORTGAGES.
Foreclosure of trust deed was not void because notice of foreclosure sale specified that sale would be made at "south" door of courthouse when there was no south door, where there was a "southeast" door at which public sales were usually held.
12. MORTGAGES.
Foreclosure of trust deed was not void on ground that trust deed, trustee's deed, and notice of sale did not contain a sufficient description of 11 acres of the land and that there was omitted therefrom 40 acres belonging to the mortgagors, and that therefore the trust deed should have been foreclosed in chancery.
ON SUGGESTION OF ERROR. (Division A. June 9, 1947.) [30 So.2d 807. No. 36369.]APPEAL AND ERROR.
Issue not previously raised would not be adjudicated on suggestion of error.
APPEAL from the chancery court of Jasper county. HON. GEO. B. NEVILLE, Chancellor.
Buchanan Harper, of Laurel, for appellees, Mrs. Rosalie E.S. Calvert, Executrix, et al., on motion.
A judgment in favor of or against a deceased person is a nullity.
Young v. Pickens, 45 Miss. 553; Gerault v. Anderson, Walk. (1 Miss.) 30.
The only jurisdiction which courts can exercise over the affairs of the dead is in the manner expressly provided by law.
Merchants' Bank Trust Co. et al. v. Mississippi National Bank et al., 108 Miss. 356, 66 So. 537; Chapman et al. v. White Sewing Machine Co., 77 Miss. 890, 28 So. 749.
The Supreme Court does not have jurisdiction to consider the cause on its merits, the judgment in the lower court being a nullity.
Bank of Philadelphia et al. v. Posey et al., 130 Miss. 530, 92 So. 840; Dorsey et al. v. Sullivan, 199 Miss. 602, 24 So.2d 852; McLendon v. McGee, 189 Miss. 712, 198 So. 725; Code of 1906, Sec. 4944, Code of 1930, Sec. 3404, Code of 1942, Sec. 1988; Griffith's Mississippi Chancery Practice, Secs. 263, 556, 591, 614, 620.
The appeals in the above styled cause of necessity should be dismissed, and the cause remanded to the chancery court of the first judicial district of Jasper County, Mississippi, for revivor and further proceedings in accordance with directions of this Court, or as alternate relief, petitioners should be substituted as appellees in this cause in this Court in the stead of George Calvert, deceased, should this Court decide that it should proceed to decide this case on its merits on appeal.
State v. Keeton, 176 Miss. 590, 169 So. 760; Eastman Gardiner Lumber Co. et al. v. Carr, 175 Miss. 36, 166 So. 401; Code of 1930, Sec. 3376; Code of 1942, Sec. 1960.
Green Green and Irwin W. Coleman, of Jackson, Wilbourn, Miller Wilbourn, of Meridian, Welch, Cooper Welch, of Laurel, and C.C. Richmond, of Dallas, Tex., for appellant, Gulf Refining Company, on motion.
As an appellate court, this Court is primarily obligated to establish, first its own jurisdiction, and, second, the jurisdiction as to the appeal of the court wherefrom the appeal is assumed to be taken.
Kennington-Saenger Theatres v. State, ex rel. District Attorney, 196 Miss. 841, 18 So.2d 483, 485; Drummond v. State, 184 Miss. 738, 185 So. 207, 209; Mississippi State Highway Department v. Haines, 162 Miss. 216, 227, 139 So. 168, 171; James v. Williams Furniture Co., 161 Miss. 358, 137 So. 101; Pickett v. Pickett, 1 How. (5 Miss.) 267; Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178; Jackson v. Gordon, 194 Miss. 268, 11 So.2d 901; Boarman v. Catlett, 13 Smedes M. (21 Miss.) 149; Jordan v. Roach, 32 Miss. 481; Middlesex Banking Co. v. Field, 84 Miss. 646, 37 So. 139; Rodgers v. Chambers (Ga.), 37 S.E. 429; Brown-Crummer Investment Co. v. City of Florala, Ala., 55 F.2d 238; United States v. Lee, 106 U.S. 199, 27 L.Ed. 171; Schwing v. Miles (Ill.), 11 N.E.2d 944; Morris v. Gilmer, 129 U.S. 315, 325, 9 S.Ct. 289, 292, 32 L.Ed. 690, 694; 3 Am. Jur. 321, Sec. 746; 4 C.J.S. 121-123, Sec. 41; U.S. Supreme Court Digest, "Appeal and Error," Key No. 1193 (d).
The Supreme Court shall have such jurisdiction as properly belongs to a court of appeals.
Planters' Ins. Co. v. Cramer, 47 Miss. 200; Brown v. Carraway, 47 Miss. 668; Wynne v. Illinois Cent. R. Co., 108 Miss. 376, 105 Miss. 786, 66 So. 410; Illinois Cent. R. Co. v. Dodd, 105 Miss. 23, 61 So. 743; Yazoo M.V.R. Co. v. Wallace, 90 Miss. 609, 43 So. 469; Sivley v. Summers 57 Miss. 712; Maddox v. Bush, 191 Miss. 748, 4 So.2d 302; Jack v. Thompson, 41 Miss. 49, 50; Root v. McFerrin, 37 Miss. 17, 46; Newell Contracting Co. v. Flynt, 172 Miss. 719, 161 So. 298, 301; MacLeod v. Womack, 95 Miss. 439, 50 So. 66; Gardner v. Duncan, 104 Miss. 477, 61 So. 545; Blythe v. Simmons, 107 Miss. 510, 65 So. 571; Constitution of 1890, Sec. 146; 31 Am. Jur. 130, Sec. 515.
An appellate court has jurisdiction, by virtue of an appeal to it taken from a court having jurisdiction of the subject matter but not of the persons, to reverse and remand for appropriate proceedings.
Eastman, Gardiner Lumber Co. v. Carr, 175 Miss. 36, 166 So. 401; Jones v. State, 155 Miss. 364, 123 So. 882; Crapoo v. Town of Grand Gulf, 9 Smedes M. (17 Miss.), 205; Peirce v. Halsell, 90 Miss. 171, 43 So. 83; In re Steen, 160 Miss. 874, 134 So. 67; Hayes v. Abney, 186 Miss. 208, 188 So. 533; Welch v. Bryant, 157 Miss. 559, 128 So. 734, 736; Liberty Trust Co. v. Planters' Bank, 155 Miss. 721, 124 So. 341; Stogner v. Crystal Springs Baptist Church (Miss.), 22 So.2d 368; Woodson v. Doyle, 196 Miss. 308, 16 So.2d 852; Ravesies v. Martin, 190 Miss. 92, 199 So. 282, 285; Combs v. Combs, 249 Ky. 166, 60 S.W.2d 368, 89 A.L.R. 1095; Moore v. Pate, 39 F.2d 616; Walling v. Reuter, 321 U.S. 671, 88 L.Ed. 1001, 1006; Wilentz v. Sovereign Camp, W.O.W., 306 U.S. 573, 83 L.Ed. 994; Jameson Co. v. Morganthau, 307 U.S. 171, 83 L.Ed. 1189, 1192; Electrical Fittings Corporation v. Betts Co., 307 U.S. 241, 83 L.Ed. 1263, 1264; United States v. Corrick, 298 U.S. 435, 80 L.Ed. 1263, 1268; Gully v. Interstate Natural Gas Co., 292 U.S. 16, 78 L.Ed. 1089; Hartford Accident Indemnity Co. v. Bunn, 285 U.S. 169, 76 L.Ed. 685; 3 C.J. 366; 2 R.C.L. 33.
Gillespie, Minniece Nettles, of Meridian, and Jackson Young, of Jackson, for appellees, on motion.
The death of George Calvert did not render any judgment against him or concerning his property void.
Gerault v. Anderson, Walk. (1 Miss.) 30; Young v. Pickens, 45 Miss. 553; Tarleton v. Cox, 45 Miss. 430; Merchants' Bank Trust Co. et al. v. Mississippi National Bank et al, 108 Miss. 356, 66 So. 537; Parker v. Horne, 38 Miss. 215; Chapman et al. v. White Sewing Machine Co., 77 Miss. 890, 28 So. 749; Woodville et al. v. Pizzati, 119 Miss. 442, 81 So. 127; Provident Life Accident Ins. Co. v. Jemison, 153 Miss. 53, 120 So. 180; Warsaw Township v. Bakken (Minn.), 156 N.W. 7; Bartero v. Real Estate Savings Bank, 10 Mo. App. 76, 78; Empire Ranch Cattle Co. v. Herrick (Colo.), 124 P. 748; Gordon v. Tillman (Wash.), 173 P. 22; Code of 1942, Secs. 1323, 1968; Griffith's Mississippi Chancery Practice, Sec. 620; 31 Am. Jur. 98, Sec. 442.
If the judgment against George Calvert is void, this does not render the judgment void as between the other parties.
Criscoe v. Adams, 123 Miss. 37, 85 So. 119; Northern v. Scruggs, 118 Miss. 353, 79 So. 227; Lynch v. Thompson, 61 Miss. 354; Hattiesburg Hardware Co. v. Pittsburg Steel Co., 115 Miss. 663, 76 So. 570; Bank of Philadelphia v. Posey, 130 Miss. 530, 92 So. 840; Weis v. Aaron, 75 Miss. 138, 21 So. 763; State Mineral Lease Commission v. Lawrence et al., 171 Miss. 442, 157 So. 897; Dorsey et al. v. Sullivan, 199 Miss. 602, 24 So.2d 852; Sivley v. Summers, 57 Miss. 712; Eastman, Gardiner Lumber Co. v. Carr, 175 Miss. 36, 166 So. 401; Finnie Grocery Co. v. Bodenheimer, 77 Miss. 417, 27 So. 613; McKay v. Starks, 121 F. 487; Rodgers et al. v. Chambers (Ga.), 37 S.E. 429; Brown-Crummer Investment Co. v. City of Florala, Ala., 55 F.2d 238; Sanborn v. Eavs (Minn.), 36 N.W. 338; Osborne v. Bank, 9 Wheat 738, 6 L.Ed. 204; United States v. Lee, 106 U.S. 199, 1 S.Ct. 240, 27 L.Ed. 171; Schwing v. Miles (Ill.), 11 N.E.2d 944; Code of 1942, Secs. 1459, 1988; Griffith's Mississippi Chancery Practice, Secs. 106, 115, 609, 614; 1 Am. Jur. 61, Secs. 61, 62, 39 Am. Jur. 991, Sec. 117.
If, for any reason, it is determined that it is necessary to remand this case in toto, it is submitted that any retrial called for thereby should be limited to the issues involving George Calvert. There is no reason for a retrial on the issues between Wallace Harrison and Gulf Refining Company, in which George Calvert had no interest whatsoever.
Davis v. L.N. Dantzler Co., 126 Miss. 812, 89 So. 148; Joe Duck Kwong v. Board of Mississippi Levee Com'rs, 164 Miss. 250, 144 So. 693; Yazoo M.V.R. Co. v. Scott, 108 Miss. 871, 67 So. 491; Dickens v. Dickens (Ala.), 56 So. 806; Citizens Securities Investment Co. v. Dennis (Ill.), 236 Ill. App. 307; Garrett v. Byerly (Wash.), 284 P. 343, 68 A.L.R. 254; 30 Am. Jur. 842, Sec. 45. Irwin W. Coleman, Green Green, and C.C. Richmond, all of Jackson, Welch Cooper Welch, of Laurel, Wilbourn, Miller Wilbourn, of Meridian, and John E. Green, Jr., of Houston, Tex., for appellant, Gulf Refining Company, on the merits.
As of the date of the mineral right and royalty transfer from George F. Taylor to Ray M. Walker, October 11, 1943, appellant Gulf Refining Company held a valid and subsisting oil, gas and mineral lease on the 3/4ths interest of George F. Taylor in and to the 268 acres of land here involved.
Russell v. Scarborough, 155 Miss. 508, 124 So. 648; A.J. Lyon Co. v. Carr, 151 Miss. 850, 119 So. 306; Tonnar v. Wade, 153 Miss. 722, 121 So. 156; Wylie v. Cade, 174 Miss. 426, 164 So. 579; Greve v. Coffin, 100 Am. Dec. 229; Myers v. Carnehan, 61 W. Va. 414, 57 S.E. 134; Humble Oil Refining Co. v. Mullican, 192 S.W.2d 770; 16 Am. Jur. 629, Secs. 336, 337; 19 Am. Jur. 75; 32 Am. Jur. 50; 40 Am. Jur. 769; 30 C.J.S. 373; Bispham's Principles of Equity, Ch. 1, Part II, p. 258.
As at October 11, 1943, Taylor had precedently created in and conveyed to Gulf a valid mineral lease, so that, as at the date of the mineral right and royalty transfer to Walker, Taylor had naught in said property to convey other than (a) proportionate royalty, (b) proportionate delay rental, and (c) proportionate reversionary mineral fee after expiration of Gulf's lease; and, not being then seized of a fee in the minerals, could and did convey only, by the form of deed employed, known as form R-101, that which was then in him validly vested.
Form R-101 has been in general use in Mississippi and recognized by the courts as effectual to convey only rents and royalties subject to an existing lease together with a reversionary interest in the mineral fee after termination of the existing lease.
Lloyd's Estate v. Mullen Tractor Equipment Co., 192 Miss. 62, 4 So.2d 282, 288; Merrill Engineering Co. v. Capital National Bank of Jackson, 192 Miss. 378, 5 So.2d 666; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Armstrong v. Bell, 199 Miss. 29, 24 So.2d 10; McCubbins v. Morgan, 199 Miss. 153, 23 So.2d 926; Cummings v. Midstates Oil Corp., 193 Miss. 675, 9 So.2d 648; Thompson v. Wherry, 200 Miss. 672, 27 So.2d 771; Harris v. Godbold (Miss.), 21 So.2d 149; Guice v. Burrage, 156 F.2d 304; Cone v. Parish, 32 F. Supp. 412; Tendolle v. Oil Syndicate, 38 Wyo. 442, 445, 268 P. 185; Gillespie v. Blanton, 214 Ky. 49, 282 S.W. 1061; 3 Summers' Oil Gas (Perm. Ed.), p. 486, Sec. 601, p. 500, Sec. 606; 7 Summers' Oil Gas 422, Secs. 1466, 1468, 1471; 10 Texas Law Review, p. 1; Glassmire's Law of Oil Gas Leases Royalties, p. 410; Mills Willingham, Law of Oil Gas, p. 648, Secs. 18, 19; Nichols, Encyclopedia of Legal Forms (7 Ed.), p. 46, Sec. 7.213, p. 103, Secs. 7.344, 7.347; Thornton, Oil Gas, Sec. 3113.
The chancellor improperly invalidated conveyance from Taylor to Walker insofar as it conveyed rents and royalties under existing lease, when his duty was to implement and effectuate that by the conveyance legally granted.
Fatherree v. McCormick, 199 Miss. 248, 24 So.2d 724, 725; Woods v. Garnett, 72 Miss. 78, 16 So. 390; Griffin v. Sheffield, 38 Miss. 359; Wolf v. Doe ex dem. Dowell, 13 Smedes M. (21 Miss.), 103; People's Bank v. West, 67 Miss. 729, 7 So. 513; Dockery v. Zerkowsky, 186 Miss. 31, 189 So. 797; Echols v. New Orleans J. G.N.R. Co., 52 Miss. 610; Eastman Gardiner Hardwood Co. v. Hall, 137 Miss. 354, 102 So. 270; Nixon's Heirs v. Carco's Heirs, 28 Miss. 414; Hart v. Gardner, 74 Miss. 153, 20 So. 877; Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341; Tarpley v. Hamer, 9 Smedes M. (17 Miss.) 310; Lloyd's Estate v. Mullen Tractor Equipment Co., supra; Koenig v. Calcote, supra; Fox v. Pearl River Lumber Co., 80 Miss. 1, 31 So. 583; Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78; Chism v. Hollis, 152 Miss. 772, 118 So. 713; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50, 178 So. 914; American Bankers' Ins. Co. v. White, 171 Miss. 677, 158 So. 346, Bradley v. Howell, 161 Miss. 346, 352, 134 So. 843; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Stern v. Great Southern Land Co., 148 Miss. 649, 114 So. 739; Moore v. Lord, 50 Miss. 229; Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729; Cummings v. Midstates Oil Corp., supra; Freeport Sulphur Co. v. American Sulphur Royalty Co., 117 Tex. 439, 6 S.W.2d 1039; Schlitter v. Smith, 128 Tex. 628, 101 S.W.2d 543; Brimmer v. Union Oil Co. (10 Cir.), 81 F.2d 437, 105 A.L.R. 454; Jackson v. Lamphire, 3 Pet. 280, 7 L.Ed. 679; Richfield Oil Corp. v. State Board of Equalization, 15 L.W. 4024, 4027; Harley v. Magnolia Petroleum Corp., 37 N.E.2d 761; Percival v. Williams, 82 Vt. 531, 74 A. 321; Robinson Bank v. Miller, 153 Ill. 244, 38 N.E. 1078, 27 L.R.A. 449; Murray v. Jones, 50 Ga. 109; 5 Tiffany on Real Property (3 Ed.), Sec. 1262, p. 477, Ch. 38, Sec. 1466; 2 Summers Oil Gas (Perm. Ed.), Sec. 246, p. 26, 1946 Pocket part; 3 Summers Oil Gas (Perm. Ed.), Sec. 606; Broom's Legal Maxims (7 Ed.), p. 466; Merrill, Implied Covenants in Oil and Gas Leases (2 Ed.), Sec. 223; 16 Am. Jur. 609, Sec. 299, p. 610, Sec. 300, p. 615, Secs. 301, 309; 39 A.L.R. 132, annotation; 26 C.J.S. 453, Sec. 140; 60 C.J. 673; 40 Words Phrases, 389, 390.
Appellees may not be allowed to renounce the words contained in the deed from Taylor to Walker whereby royalties and delay rentals were conveyed and at the same time to hold on to the deed insofar as it conveyed minerals under the land.
Commercial Bank of Manchester v. Lewis, 13 Smedes M. (21 Miss.) 226, 232; Washington v. Soria, 73 Miss. 665, 19 So. 485; Masonic Benefit Ass'n of Stringer Grand Lodge v. First State Bank, 99 Miss. 610, 55 So. 408; Prince v. Prince, 190 Miss. 309, 200 So. 126, 128; Jennings v. Gage et al., 13 Ill. 612; 31 C.J.S. 213, Sec. 37 et seq.; 19 Am. Jur. 619, Sec. 21.
Ray M. Walker, his vendees, and his and their lessee, Wallace Harrison, and each of them, not having established by a preponderance of the evidence that they, or any of them, on the dates of their several purchases were bona fide purchasers for a valuable consideration without notice of the prior existing oil, gas and mineral lease to Gulf Refining Company, the decree of the chancery court should be reversed and judgment here entered in favor of appellant Gulf Refining Company.
The burden of proof was on appellees to prove by a preponderance of the evidence that on the date of the mineral right and royalty transfer to Ray M. Walker, October 11, 1943, he had no notice of the prior existing oil, gas and mineral lease in favor of Gulf Refining Company.
Cassedy v. Wells, Jones, Wells Lipscomb, 162 Miss. 102, 137 So. 472; Billups v. Becker's Welding Machine Co., 186 Miss. 41, 189 So. 526; Hamilton Bros. Co. v. Baxter, 188 Miss. 610, 195 So. 335; Taylor v. Twiner, 193 Miss. 410, 9 So.2d 644; Hiller v. Jones, 66 Miss. 636, 6 So. 465; Atkinson v. Greaves, 70 Miss. 42, 11 So. 688; Hart v. Gardner, 81 Miss. 650, 33 So. 442; Harris v. Sims, 155 Miss. 207, 218, 124 So. 325; Kruse v. Conklin, 82 Kan. 358, 108 P. 856, 36 L.R. (N.S.) 1124; Powers v. Russell, 13 Pick. 69, 76, 77; Rogers v. Pettus, 80 Tex. 425, 15 S.W. 1093; Turner v. Cochran, 94 Tex. 480, 61 S.W. 923; 20 Am. Jur. 136, Sec. 133, p. 138, Sec. 135, p. 163, Sec. 159; 34 Am. Jur. 776; 9 Wigmore on Evidence (3 Ed.), p. 274, Sec. 2486.
Appellees did not meet the burden resting upon them to prove by a preponderance of the evidence that Ray M. Walker was a bona fide purchaser for a valuable consideration without notice of the prior existing oil, gas and mineral lease to Gulf Refining Company.
Halloway v. Halloway, 189 Miss. 723, 728, 198 So. 738; New Orleans G.N.R. Co. v. Walden, 160 Miss. 102, 133 So. 241; First Nat'l Bank v. Ford, 30 Wyo. 110, 216 P. 691, 31 A.L.R. 1441; Stofer v. Dunham (Mo.), 208 S.W. 641, 645; McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641, 650; Wheeler v. M'Guire, 86 Ala. 398, 5 So. 190, 193, 2 L.R.A. 808; Wigmore on Evidence (2 Ed.), Sec. 2491; 20 Am. Jur. 1102, Sec. 1250; 23 C.J. 11, Sec. 1744; XVII Mississippi Law Journal, p. 1, "Presumptions: Their Use and Abuses," by Hon. Julian P. Alexander.
The vendees of Ray M. Walker and his and their lessee Wallace Harrison did not meet the burden resting upon them to prove that they or any of them were bona fide purchasers for a valuable consideration without notice of the prior existing oil, gas and mineral lease to Gulf Refining Company.
Alternatively, if the burden of proof was on Gulf Refining Company to prove that Ray M. Walker, his vendees, and his and their lessee, Wallace Harrison, and each of them, had actual notice of the prior existing oil, gas and mineral lease to Gulf Refining Company, on the dates of their several purchases, this burden was fully met and such notice was proved by the preponderance of the evidence.
The recitals in the mineral right and royalty transfer from George F. Taylor to Ray M. Walker dated October 11, 1943, were sufficient to and did charge Walker and those claiming under him with notice of the oil, gas and mineral lease executed by George F. Taylor to Gulf Refining Company on October 8, 1943.
Wailes v. Cooper, 24 Miss. 208; Gordon v. Sizer, 39 Miss. 805; Deason v. Taylor, 53 Miss. 697; Binder v. Weinberg, 94 Miss. 817, 48 So. 1013; Baldwin v. Anderson, 103 Miss. 462, 60 So. 578; Dead River Fishing Hunting Club v. Stovall, 147 Miss. 385, 395, 113 So. 336; Creek Land Improvement Co. v. Davis, 28 Okla. 579; Sanborn v. Robinson, 54 N.H. 239; Purdy v. Coar, 109 N.Y. 488; Jennings v. Bloomfield (Pa.), 49 A. 135; Smith v. United States (5 Cir.), 153 F.2d 655; 43 Texas Jurisprudence 647, Sec. 383.
The decisions relied on by appellees do not sustain the court's view of the recitals in the deed from Taylor to Walker.
Spellman v. McKeen, 96 Miss. 693, 51 So. 914; Simons v. Hutchinson, 81 Miss. 351, 33 So. 21; Sack v. Gilmar Dry Goods Co., 149 Miss. 296, 115 So. 339; Hardin v. Ross, 117 Miss. 186, 78 So. 2; Great Southern Land Co. v. Valley Securities Co., 162 Miss. 120, 137 So. 510, 82 A.L.R. 405; Broadway Building Inc. v. City Investment Co., 120 F.2d 813; Racouillat v. Rene, 32 Cal. 450.
The evidence in this record is overwhelming that Ray M. Walker had actual notice of the prior existing lease from George F. Taylor to Gulf Refining Company when he accepted the mineral right and royalty transfer from Taylor on October 11, 1943, and compels a binding to that effect.
1 Summers' Oil Gas 37, Sec. 231.
Wells, Wells, Newman Thomas, of Jackson, for appellants, American Liberty Oil Company, Blue Bird Investment Company, and G.G. Stanford, on the merits.
The fact that the deed of trust dated August 4, 1939, from Ike Ulmer and wife to M.G. Travis, trustee, for the benefit of Mrs. J.A. Lyon was filed on December 18, 1939, two days prior to the filing of the mineral deed from Ike Ulmer and wife to A.J. Broderick and George Calvert, made said deed of trust prior to the mineral conveyance of A.J. Broderick and George Calvert, and the subsequent foreclosure of said deed of trust wiped out the mineral interest of appellees who claim as heirs and devisees of Broderick and Calvert and claim under said mineral conveyance.
Craig v. Osborn, 134 Miss. 323, 98 So. 598; Mangold v. Barlow, 61 Miss. 593; Owen v. Potts, 149 Miss. 205, 115 So. 336; Woods v. Garnett, 72 Miss. 78, 16 So. 390; Code of 1942, Secs. 867, 868, 869; Laws of 1924, Ch. 239; 41 C.J. 273, Sec. 1.
The fact that the foreclosure notice of the trustee's sale was posted on the bulletin board at the courthouse in the first judicial district of Jasper County, Mississippi, in which district the land was, and also posted on the bulletin board at the courthouse in the second judicial district of Jasper County, Mississippi, did not invalidate the sale.
Jones v. Salmon et al., 128 Miss. 508, 91 So. 199; Maris et al. v. Lindsey et al., 124 Miss. 742, 87 So. 12.
The fact that the advertisement of the sale was published in a newspaper not published in the judicial district of the county in which the land was located did not invalidate the sale, because there was no newspaper published in said judicial district, and the publication was actually made in a newspaper published in the second judicial district of Jasper County, Mississippi, with a general circulation in the judicial district in which the land was situated.
Code of 1942, Secs. 888, 1858.
The sale under the deed of trust was conducted at the proper door of the court house at Paulding, Mississippi, pursuant to the provisions of the deed of trust and of the notice of the foreclosure sale.
Miller v. Magnolia Building Loan Ass'n, 160 Miss. 367, 134 So. 136; Bowman v. Caldwell (Neb.), 283 N.W. 194, 120 A.L.R. 657; Hickey v. Behrens, 12 S.W. 679.
The deed of trust and subsequent foreclosure did not cover or affect the SW 1/4 of NE 1/4 of said Section 27.
The land was offered for sale in the manner provided for by Section 111 of the Constitution of the State of Mississippi, and Section 2167 of the Code of 1930, being Section 888 of the Code of 1942.
Rutherford v. Eastman, Gardiner Co., et al., 133 Miss. 289, 97 So. 670; Stern v. Parker, 200 Miss. 27, 25 So.2d 787; Code of 1930, Sec. 2167; Code of 1942, Sec. 1499; Constitution of 1890, Sec. 111.
The deed of trust was valid to convey to the trustee the property therein described, and the foreclosure was legally and properly done, to the end that the trustee's deed conveyed to Mrs. J.A. Lyon the property therein described.
Barksdale v. Barksdale, 92 Miss. 166, 45 So. 615; Beasley v. Beasley, 177 Miss. 522, 171 So. 680; Craft v. Germany, 34 Miss. 118; Enochs v. Miller, 60 Miss. 19; Graham v. Fitts, 53 Miss. 307; Hancock v. Pyle, 191 Miss. 546, 3 So.2d 851; Harmon v. James, 7 Smedes M. (15 Miss.) 111; Harris et al. v. Byers, 112 Miss. 651, 73 So. 614; Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343, 26 So.2d 239; Jones v. Frank, 123 Miss. 280, 85 So. 310; McAllister v. Honea, 71 Miss. 256, 14 So. 264; Melchor v. Casey, 173 Miss. 67, 161 So. 692; Nunnery v. Ford, 92 Miss. 263, 45 So. 722; Pruitt v. Dean, 198 Miss. 71, 21 So.2d 300; Reddoch v. Williams, 129 Miss. 706, 92 So. 831; Russell v. Stevens, 70 Miss. 685, 12 So. 830; Spears v. Robinson, 71 Miss. 774, 15 So. 111; Tierney v. Brown et al., 65 Miss. 563, 5 So. 104 Tyler v. Herring, 67 Miss. 169, 6 So. 840; Yellowly v. Beardsley, 76 Miss. 613, 24 So. 973; Beacon Hill Land Co. v. Bowen (R.I.), 82 A. 81; Loveland v. Clark (Colo.), 18 P. 544; Miller v. Lanham (Neb.), 53 N.W. 1010; Stickney v. Evans, 127 Mass. 202; Wilson v. Page, 76 Maine 279; Code of 1942, Sec. 839; 16 Am. Jur. 587, Sec. 265; 41 C.J. 920, Sec. 1334; Patton on Titles, p. 326, Sec. 96, p. 408, Sec. 122.
Jackson Young, of Jackson, and Gillespie, Minniece Nettles, of Meridian, for appellee, Wallace Harrison, on the merits.
Appellant, Gulf Refining Company, did not have a valid and subsisting oil, gas and mineral lease to the property in question on October 11, 1943, the date of the mineral deed from George Taylor to Ray M. Walker.
McGehee v. White, 31 Miss. 41; Caruthers v. McLaran, 56 Miss. 371; Robinson v. Noel, 49 Miss. 253; Cannon v. Holburg Mercantile Co., 108 Miss. 102, 66 So. 400; Russell v. Scarborough, 155 Miss. 508, 124 So. 649; A.J. Lyon Co. v. Carr, 151 Miss. 850, 119 So. 306; Adams v. Houston T.C.R. Co., 70 Tex. 252, 7 S.W. 729, 741; Clifford Cigar Co. v. Mahoning Investment Co., 186 S.W. (Mo. App) 1123; Reading Trust Co. v. Jackson, 22 Pa. Super. 69; United Brewing Co. of Chicago v. D. Kavanaugh's Sons, 185 Ill. App. 137; Humble Oil Refining Co. v. Mullican, 192 S.W.2d 770; Thompson on Real Property (Perm. Ed.), Secs. 1132, 1133, 1495, 4121, 4145, 4152, 4169, 4180; 16 Am. Jur. 620, Sec. 321; Winston Universal Reference Library, p. 989; 3 Summers' Oil Gas (Perm. Ed.), p. 212, Sec. 524.
Counsel for appellant Gulf Refining Company argue at length that George Taylor had conveyed a valid mineral lease to the Gulf Refining Company at the time of his mineral deed to Ray M. Walker and therefore did not have vested in him, at the time of his conveyance to Ray M. Walker, the power to convey unleased minerals to Walker. They argue further that the recitals in the habendum clause of the form mineral deed to Ray M. Walker amount to an exception or reservation of the lease privilege on those minerals and that they were therefore not conveyed to Ray M. Walker in the deed to him. Although the argument on behalf of appellant Gulf Refining Company is very ingenious, there is no merit in either contention. If, as respectfully contended by appellee Wallace Harrison, appellant Gulf Refining Company did not have a valid and subsisting lease on the minerals in question on October 11, 1943, — the date of the mineral deed from George Taylor to Ray M. Walker, — George Taylor would, of course, still have possessed these minerals on October 11, 1943, unleased. Furthermore, under our recording statutes as interpreted by this Court, if Ray M. Walker was a bona fide purchaser for value without notice, as was held by the chancellor, the failure of appellant Gulf Refining Company to record their lease of October 8, 1943, destroyed the operation of that lease for all purposes insofar as Ray M. Walker and his vendees are concerned just as though it had never been executed.
Craig v. Osborn, 134 Miss. 323, 98 So. 598; Owen v. Potts, 149 Miss. 205, 115 So. 336; Sack v. Gilmer Dry Goods Co., 149 Miss. 296, 115 So. 339; Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729; Moore v. Lord, 50 Miss. 229; Fatherree et al. v. McCormick et al., 199 Miss. 248, 24 So.2d 724; Ates et al. v. Ates, 189 Miss. 226, 196 So. 243; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Triplett v. Triplett, 332 Mo. 870, 60 S.W.2d 13; Stroud v. Hunt Oil Co. et al. (Tex.), 147 S.W.2d 147; Bascom v. Maxey (Okla.), 157 P.2d 158; Echoulustee Oil Co. v. Johnston et al., 153 Okla. 92, 3 P.2d 227; Code of 1942, Secs. 867, 868, 869; 16 Am. Jur. 607, Sec. 298, p. 609, Sec. 299, p. 610, Sec. 300; 7 Thompson on Real Property (Perm. Ed.), p. 19, Sec. 3529.
Appellant, Gulf Refining Company, contends that the burden of proof rested on the appellee, Wallace Harrison, to prove, by a preponderance of the evidence, that on the date of the mineral deed to Ray M. Walker, October 11, 1943, Ray M. Walker had no notice of the prior existing oil, gas and mineral lease in favor of Gulf Refining Company, and that appellee, Wallace Harrison, did not meet this burden of proof, inasmuch as the chancellor found that the evidence as to notice was evenly balanced. The authorities are not all in accord upon the question of burden of proof of notice and payment of a consideration as between a subsequent purchaser whose conveyance has been recorded and one claiming under a conveyance prior in time but unrecorded. The different views are set forth in detail in the annotation in Volume 107 A.L.R. at page 502. The annatotor places Mississippi among those states holding that in cases in which one relies upon being a bona fide purchaser and has proven his purchase and payment of a valuable consideration, the burden of showing that he purchased with notice is on the party asserting or relying on notice to defeat the bona fide purchase claim.
See Atkinson v. Greaves, 70 Miss. 42, 11 So. 688; Hiller v. Jones, 66 Miss. 636, 6 So. 465; Carter v. Gardner Co., 95 Miss. 651, 48 So. 615; Dowling v. Whites Lumber Supply Co., 170 Miss. 267, 154 So. 703; Columbian Mutual Life Ins. Co. v. Harrison, 170 Miss. 121, 154 So. 722; Cassedy v. Wells, Jones, Wells Lipscomb, 162 Miss. 102, 137 So. 472; Taylor v. Twiner, 193 Miss. 410, 9 So.2d 644; Hamilton Bros. Co. v. Baxter, 188 Miss. 610, 195 So. 335; Billups v. Becker's Welding Machine Co., 186 Miss. 41, 189 So. 526; Simmons v. Hutchinson, 81 Miss. 351, 33 So. 21; Northern Assurance Co. v. J.J. Newman Lumber Co., 105 Miss. 688, 63 So. 209; Bank of Lauderdale v. Cole, 111 Miss. 39, 71 So. 260; Stroud v. Loper, 190 Miss. 168, 198, So. 46; D.S. Pate Lumber Co. v. Weathers, 167 Miss. 228, 146 So. 433; Lay v. Nutt, 194 Miss. 83, 11 So.2d 430; Equitable Sureties v. Sheppard, 78 Miss. 217, 28 So. 842; Barksdale v. Learnard, 112 Miss. 861, 73 So. 736; Lusk v. McNamer, 24 Miss. 58; Roll v. Rea, 50 N.J.L. 264, 12 A. 905; Steinsman v. Clinchfield Coal Corporation, 121 Va. 611, 93 S.E. 684; Citizens State Bank v. Julian, 153 Ind. 655, 55 N.E. 1007; Shotwell v. Harrison, 22 Mich. 410; Feinberg v. Stearns, 56 Fla. 279, 47 So. 797; Harrison v. Moore (Mo.), 199 S.W. 188; Betts v. Letcher, 1 S.D. 182, 46 N.W. 193; McVoy v. Baumann, 93 N.J. Eq. 360, 117 A. 717; Code of 1930, Secs. 2255, 2713; Code of 1942, Secs. 867, 868, 869; Laws of 1924, Ch. 249; House Bill No. 679, Mississippi House Journal of 1924, p. 1250, 1437; 107 A.L.R. 502, 523; Thompson on Real Property (Perm. Ed.), Secs. 4293, 4384, 4386.
The recital in the mineral deed to Ray M. Walker and in the mineral deed from Ray M. Walker to Doe, Whitsett, Wilson, Merle R. Walker, and Hogate that "this conveyance is made subject to any valid and subsisting oil, gas or other mineral lease or leases on said land" was not sufficient to charge Walker or his vendees with notice of the lease from George Taylor to appellant, Gulf Refining Company, dated October 8, 1943.
Spellman v. McKeen, 96 Miss. 693, 51 So. 914; Lucas v. New Hebron Bank, 181 Miss. 762, 180 So. 611; Simmons v. Dantzler, 152 Miss. 428, 118 So. 829; Young v. Cobb, 125 Miss. 631, 87 So. 125; Wailes v. Cooper, 24 Miss. 208; Gordon v. Sizer, 39 Miss. 805; Deason v. Taylor, 53 Miss. 697; Binder v. Weinberg, 94 Miss. 817, 48 So. 1013; Baldwin v. Anderson, 103 Miss. 462, 60 So. 578; Dead River Fishing Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Soria v. Harrison County, 96 Miss. 109, 50 So. 443; Yazoo M.V.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393; Robinson v. Payne, 58 Miss. 690; Dunbar v. Aldrich, 79 Miss. 698, 31 So. 341; Shapleigh Hardware Co. v. Spiro, 141 Miss. 38, 106 So. 209; White v. Lowry, 162 Miss. 751, 139 So. 874; Turner et al. v. Glenn et al. (N.C.), 18 S.E.2d 197; Pattellis v. Tanner (Ga.), 29 S.E.2d 422; Kaufman v. Arkansas Fuel Oil Co., 44 F. Supp. 36; Smith v. Harbrough (Ala.), 112 So. 914; Strong v. Strong (Tex.), 66 S.W.2d 75; Gibson et al. v. Morris et al. (Tex.), 47 S.W.2d 648; Broadway Building v. City Investing Co. et al., 120 F.2d 813, C.C.A. 2; Cookson v. Hamilton, 160 Colo. 743; Scott v. West, 63 Wis. 529, 25 N.W. 18; Racouillat v. Rena, 32 Colo. 450; Bright v. Butman, 39 F. 247; Creek Land Improvement Co. v. Davis, 28 Okla. 579; Sanborn v. Robinson, 54 N.H. 239; Purdy v. Coar, 109 N.Y. 488; Smith v. United States, 153 F.2d 655; Jennings v. Blumfield et al. (Pa.), 49 A. 135; Roll v. Rea, supra; Paul v. Kerswell (N.J.), 37 A. 1102; 7 Thompson Real Property (Perm. Ed.), p. 10, Sec. 3523, p. 18, Sec. 3529.
Buchanan Harper, of Laurel, for appellees, Mrs. Rosalie E.S. Calvert, Executrix, et al., on the merits.
Section 1499, Code of 1942, providing for a bill of particulars on demand of opposite party is a rule of evidence and does not dispense with the requirements that a complainant or cross-complainant, in a suit to cancel clouds upon title, shall show good title in himself.
Nevitt v. Rabe et al., 5 How. (6 Miss.) 653; Mitchell v. Tubb, 107 Miss. 221, 65 So. 216; Ables v. Forrester, 182 Miss. 551, 181 So. 913; Broome v. Jackson, 193 Miss. 66, 7 So.2d 829; Merchants Manufacturers Bank v. State, 200 Miss. 291, 25 So.2d 585; Griffith's Mississippi Chancery Practice, Sec. 212.
During the time when the deed of trust in favor of Mrs. J.A. Lyon was ineffective, a severance of the estate in the oil, gas and minerals from the estate in the surface and soil was accomplished.
Craig v. Osborn, 134 Miss. 323, 98 So. 598; Owen v. Potts, 149 Miss. 205, 115 So. 336; Thompson v. Person, 177 Miss. 63, 170 So. 694; Russell et al. v. Federal Land Bank et al., 180 Miss. 55, 176 So. 737; Burks v. Moody, 141 Miss. 370, 107 So. 279; Moss v. Jourdan, 129 Miss. 598, 92 So. 689; Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196; Humphreys Mexia Co. v. Gammon (Tex.), 254 S.W. 296, 29 A.L.R. 607; Hemingway's Code of 1917, Sec. 2292; Code of 1930, Sec. 2148; Code of 1942, Sec. 869.
The filing of the Lyon deed of trust did not accomplish a merger of the severed mineral estate with the estate in the surface and soil of the land, so that the estate in the surface and soil of the land and the undivided one-fourth interest in the mineral estate in the land could be sold under foreclosure by a description of the land by governmental subdivisions, and nothing more.
Merrill Engineering Co. v. Capital National Bank of Jackson, 192 Miss. 378, 5 So.2d 666; Cade v. Toler, 155 Miss. 606, 124 So. 793; Connecticut General Life Ins. Co. v. Planters Trust Savings Bank, 182 Miss. 463, 181 So. 724; Humphreys Mexia Co. v. Gammon (Tex.), supra; Code of 1942, Secs. 867, 868, 869; 21 C.J. 1035-1036, Sec. 235.
The deed of trust executed by Ike Ulmer and wife to Mrs. J.A. Lyon, as beneficiary, became subordinated to the three-fourths mineral interest acquired from Ike Ulmer and wife by George F. Taylor by operation of law.
Code of 1942, Secs. 867, 868, 869.
Upon breach of condition or default of the mortgagor, the relationship between mortgagor and mortgagee being one of trust, there is imposed upon the trustee and the beneficiary the duty to sell the land in such manner as will be most beneficial to the debtors.
Federal Land Bank et al. v. Collom, 201 Miss. 266, 28 So.2d 126; Meyers et al. v. American Oil Co., 192 Miss. 180, 5 So.2d 218; Yellowly v. Beardsley, 76 Miss. 613, 24 So. 973; Hancock v. Pyle, 191 Miss. 546, 3 So.2d 851; McAllister v. Honea, 71 Miss. 256, 14 So. 264; Rawlings v. Anderson, 149 Miss. 632, 115 So. 714; Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3; Gamble v. Witty, 55 Miss. 26.
By their purchase of one-fourth mineral interest from Ike Ulmer and wife, A.J. Broderick and George Calvert acquired rights in the trust relationship between mortgagor and mortgagee, being a co-tenant in the mineral estate severed from the surface and soil, while the deed of trust was inoperative.
Federal Land Bank v. Collom, supra; Code of 1942, Secs. 888, 889; Laws of 1934, Chs. 248, 249.
The foreclosure sale did not comply with the mandatory requirements of Section 111 of the Constitution of 1890, nor with the mandatory requirements of Section 888, Code of 1942.
Provine v. Thornton, 92 Miss. 395, 46 So. 950; Rutherford v. Eastman, Gardiner Co. et al., 133 Miss. 289, 97 So. 670; Wilkerson v. Harrington, 115 Miss. 637, 76 So. 563; Clark v. Carpenter et al., 201 Miss. 436, 29 So.2d 215.
The indefinite and incorrect descriptions of lands in the deed of trust did not constitute constructive notice of the lands intended to be covered by the deed of trust so as to invoke the priority provided for by Sections 867, 868, and 869, Code of 1942.
Pan-American Life Ins. Co. v. Crymes, 169 Miss. 701, 153 So. 803; Sack v. Gilmer Dry Goods Co., 149 Miss. 296, 115 So. 339; Simmons v. Hutchinson, 81 Miss. 351, 33 So. 21.
Butler Snow, of Jackson, for appellee, Kirby Petroleum Company, on the merits.
The appellee, Kirby Petroleum Company, is the owner of an undivided 40/268 interest (or the equivalent of 40 mineral acres) in and to the oil, gas and other minerals in, on and under the lands involved, subject to any valid and subsisting oil, gas and mineral leases thereon. The title of this appellee to said interest was confirmed by the decree of the court below. On the present appeal the validity of the title of this appellee is conceded by all concerned. The following brief history of the facts will illustrate the position of the Kirby Petroleum Company:
Ike Ulmer was the owner of the lands involved. On August 8, 1939, Ike Ulmer and wife executed a deed of trust to M.G. Travis, trustee, in favor of Mrs. J.A. Lyon. This deed of trust was not filed for record until December 18, 1939. In the meantime, and before the deed of trust was filed for record, Ike Ulmer and wife executed a mineral conveyance conveying an undivided 3/4ths interest in and to the minerals in, on and under the land in volved, to George F. Taylor. This conveyance to Taylor was executed on November 20, 1939, and filed for record on the same day. Therefore, the mineral conveyance to Taylor primed the deed of trust in favor of Mrs. Lyon. The appellants, American Liberty Oil Company, Blue Bird Investment Company and G.G. Stanford, represented by Messrs. Wells, Wells, Newman and Thomas, are the only parties who claim through the aforesaid Lyon deed of trust. These appellants have admitted in the lower court, and have conceded on the present appeal that they could not prove that George F. Taylor had actual or constructive notice of the Lyon deed of trust; that the mineral deed to Taylor primed the deed of trust, and they have conceded that they have no interest in the 3/4th mineral interest claimed by those who claim under and through George F. Taylor. This appellee claims through and under George F. Taylor by mesne conveyances, and received its interest by a conveyance from Ray M. Walker, dated June 7, 1944, recorded in Oil Gas Book 15, at page 119, of the records of the office of the chancery clerk of the first district of Jasper County. No one questions the validity of the title of this appellee, Kirby Petroleum Company, to an undivided 40/268 interest (or the equivalent of 40 mineral acres) in and to the oil, gas and other minerals in, on and under the lands involved. We concede that the said undivided 40/268 mineral interest is subject to any valid and subsisting oil, gas and mineral lease or leases covering the lands involved. We disclaim any interest in the oil, gas and mineral lease rights in and to said lands, and we disclaim any interest in the controversy which exists between the appellant, Gulf Refining Company, and the appellee Wallace Harrison, as to the priority of the respective oil, gas and mineral leases claimed by those parties. The interest of this appellee is an undivided interest, as above set forth, in the oil, gas and other minerals in, on and under said lands, subject to any valid and subsisting oil, gas and mineral leases thereon. Regardless of the outcome of the controversy between Gulf Refining Company and Wallace Harrison as to the priority of the respective leases claimed by them, it does not affect the title of this appellee to its mineral interest, as above set forth. Similarly, the outcome of the controversy between the clients of Messrs. Wells, Wells, Newman Thomas and those of Messrs. Buchanan Harper, as to the validity of the foreclosure of the Lyon deed of trust, cannot in any event affect the title of this appellee to its mineral interest as above set forth. We have examined the briefs in the case and find no contentions adverse to this appellee. Insofar as the decree of the court below confirms the title of this appellee, it is manifestly correct and it is conceded by all that, to that extent, it must be affirmed.
Buchanan Harper, of Laurel, for appellees, Mrs. Rosalie E.S. Calvert et als., on suggestion of error.
Should that part of the opinion relating to the controversy between the appellants, American Liberty Oil Company, Blue Bird Investment Company, and G.G. Stanford, and the appellees, the heirs and devisees of A.J. Broderick and George Calvert, deceased, be crystallized into law, we respectfully suggest, with deference, that it would:
(1). Establish a new rule of construction of deeds and descriptions therein, which would in practical effect violate the due process clauses of the Federal and State Constitutions.
Carr v. Barton, 173 Miss. 662, 162 So. 172; Sack v. Gilmer Dry Goods Co., 149 Miss. 296, 115 So. 339; Delk v. Hubbard, 153 Miss. 869, 121 So. 845.
(2). Destroy the value of former decisions on the fundamental principle that the relationship between mortgagor and mortgagee is one of trust, and is such that a consequent obligation on the part of the mortgagee is that, in the steps taken by him in the process of foreclosure under power of sale, he shall exercise due care to see to it that the course pursued shall be reasonably free from any such action as would be liable to deter any of those who would become bidders at the foreclosure sale or to depress the offers of those who bid.
Federal Land Bank v. Collom, 201 Miss. 266, 28 So.2d 126; Hancock v. Pyle, 191 Miss. 546, 3 So.2d 851; Hesdorffer v. Welsh, 127 Miss. 261, 90 So. 3; Yellowly v. Beardsley, 76 Miss. 613, 24 So. 973.
(3). Destroy, or at least impair, the value of former decisions of this Court on the law of real property which have become rules of property in reliance upon which titles have been established, as against the uniform holding of our Court that the stability of rules relating to muniments of title of real estate should be steadfastly maintained.
White v. Williams, 159 Miss. 732, 132 So. 573, 76 A.L.R. 757; New York Life Ins. Co. v. Nessossis, 189 Miss. 414, 196 So. 766; Forest Product Mfg. Co. v. Buckley, 107 Miss. 897, 899, 66 So. 279; Magee v. Morehead, 154 Miss. 828, 123 So. 881.
To divest title from appellees and vest same in appellants under the indefinite and inaccurate descriptions thereof in the deed of trust would be to take the property of appellees without due process in violation of the due process clauses of the Federal and State Constitutions.
Kilpatrick v. Kilpatrick, 23 Miss. 124; Lampton-Reid Co. v. Allen, 177 Miss. 698, 171 So. 780; Hamner et al. v. Cocke, 186 Miss. 567, 191 So. 429; Levy v. Merchants' Bank Trust Co., 124 Miss. 325, 86 So. 807; Carr v. Barton, 173 Miss. 662, 162 So. 172; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343, 26 So.2d 239; Sack v. Gilmer Dry Goods Co., supra; Delk v. Hubbard, supra.
The decisions of the Supreme Court constitute a body of precedents that should be followed by the courts in subsequent causes, when applicable, unless they are manifestly wrong and mischievous in their results.
White v. Williams et al., 159 Miss. 732, 132 So. 573, 76 A.L.R. 757; New York Life Ins. Co. v. Nessossis, supra; Forest Product Manufacturing Co. v. Buckley, supra; Magee et al. v. Morehead et al., supra; Yellowly v. Beardsley, supra; Hesdorffer v. Welch, supra.
The indefinite and inaccurate descriptions in the deed of trust and foreclosure notice were such that they may well have been controlling with prospective bidders as to the amount they should bid or whether or not they should bid at all.
Hancock v. Pyle, supra; Hesdorffer v. Welsh, supra; Yellowly v. Beardsley, supra; Meyers et al. v. American Oil Co., 192 Miss. 180, 5 So.2d 218; Federal Land Bank v. Collom, supra; Pan-American Life Ins. Co. v. Crymes, 169 Miss. 701, 153 So. 803; Sack v. Gilmer Dry Goods Co., supra.
The chancellor was justified in invoking this rule of property by holding that the trustee should have foreclosed in chancery.
Federal Land Bank v. Collom, supra; Meyers v. American Oil Co., supra; Hancock v. Pyle, supra; Hesdorffer v. Welsh, supra; Yellowly v. Beardsley, supra.
Jackson Young, of Jackson, and Gillespie, Minniece Nettles, of Meridian, for appellee, Wallace Harrison, on suggestion of error.
The effect of the opinion in this case is to entirely destroy the benefit of the recording statutes which the legislature has given us, and which our Court has always previously strictly enforced, in any case in which Form R-101 has been used to convey minerals. This court has said in effect, that the provision in question amounts to an exception or reservation of property conveyed. If this Court persists in its holding that such a statement in a deed amounts to an exception or reservation, and that the title to any part of that property which has been previously sold, regardless of whether the deed has been put of record or not, did not pass by the conveyance containing that language, then it will have put in question the marketability of thousands of titles previously believed to be beyond question. The principle that an instrument has no effect against bona fide purchasers until put on record should be applied in this case.
Allen v. Boykin, 199 Miss. 417, 24 So.2d 748; Armstrong v. Bell. 199 Miss. 29, 24 So.2d 10; Ates v. Ates, 189 Miss. 226, 196 So. 243; Barataria Canning Co. v. Ott, 84 Miss. 737, 37 So. 121, 125; Commercial Bank of Manchester v. Lewis, 13 Smedes M. (21 Miss.) 226; Corinth Bank Trust Co. v. Wallace, 111 Miss. 62, 71 So. 266; Cummings v. Midstates Oil Corporation, 193 Miss. 675, 9 So.2d 648; Masonic Benefit Ass'n of Stringer Grand Lodge v. First State Bank, 99 Miss. 610, 55 So. 408; McAllister v. Honea, 71 Miss. 256, 14 So. 264; Moore v. Lord, 50 Miss. 229; Prince v. Prince, 190 Miss. 309, 200 So. 126; Richardson v. Moore, 198 Miss. 741, 22 So.2d 494; Richardson v. Marqueze, 59 Miss. 80, 94; Washington v. Soria, 73 Miss. 665, 19 So. 485; Carr v. Baldwin, 301 Ky. 43, 190 S.W.2d 692; Cole v. Collins (Ark.), 198 S.W. 710; Cookson v. Hamilton, 160 Colo. 743; Glasscock v. Mallory (Ark.), 213 S.W. 8; Higginbotham v. Blair, 308 Ill. 568, 139 N.E. 909; Jarrett v. Moore (Okla.), 14 P.2d 390; Justice v. Justice (Ky.), 39 S.W.2d 250; Scott v. Scott, 63 Wis. 529, 25 N.W. 18; Seavey v. Williams (Ore.), 191 P. 779; Shell Oil Co. v. Manley Oil Corp., 124 F. 714; Steinman Coal Corp. v. Fleming (Va.), 134 S.E. 696; 16 Am. Jur. 618, 619, Secs. 315, 319; 6 Thompson on Real Property (Perm. Ed.), p. 702, 703, Secs. 3474, 3475.
Ralph L. Landrum, of Jackson, Bidwell C. Adam, of Gulfport, and J.S. Barbour, Sr., and J.S. Barbour, Jr., both of Yazoo City, amici curiae, on suggestion of error.
It seems to us that the Supreme Court is engrafting an exception on the recording statutes which was never intended by the legislature when these statutes were written.
Craig v. Osborn, 134 Miss. 323, 98 So. 598; Owen v. Potts, 149 Miss. 205, 115 So. 336; Hiller v. Jones, 66 Miss. 636, 6 So. 465; Code of 1906, Secs. 2784, 2787, 2788; Code of 1942, Sec. 867, 868, 869; Laws of 1924, Ch. 239.
Argued orally by Irwin W. Coleman, Garner Green, J.R. Buchanan and W.R. Newman, Jr., for appellants, and by R.G. Gillespie and Thomas Y. Minniece, for appellee.
The heirs and devisees of George Calvert deceased file their motion asking in the alternative (1) dismissal of the appeal, or (2) substitution as appellees.
Calvert died during the hearing upon a bill filed by appellant to confirm title as against appellees. This fact was unknown to the parties or to the court until after final decree.
We have examined the several answers to the motion, which contend for a diversity of procedures. We are of the opinion that Calvert was not a necessary party to appellant's suit; that his interests were not involved therein. It is true, in the cross-bills filed with answers, some defendants asserted claims whose establishment could have affected Calvert's interest as well as appellants.
We see no reason to dismiss the entire appeal. The decree, insofar as it may be construed to affect the Calvert interest, was favorable thereto. It was not absolutely void as to the other parties, and was at most only voidable or erroneous as to Calvert. Streeter v. Chicago Title Trust Co., D.C., 14 F.2d 331; Christian, etc., Company v. Dantzler Lbr. Co., 78 Miss. 74, 28 So. 788. Compare McKey v. Torry, 28 Miss. 78. 30 Am. Jur., Judgments, Sec. 38, p. 838. The trial court had acquired jurisdiction of the subject matter, and of the persons of the joint complainants and joint defendants. Without knowledge of any of the parties or the court, Calvert died shortly prior to final decree.
In our opinion, a just and practicable rule, endorsed by modern decisions (Am. Jur., ubi supra), and comporting with an orderly procedure, requires that the motion to dismiss the appeal be overruled. The alternative relief of revivor by the Calvert heirs is granted so as to allow them to retain oversight over their interests throughout the appeal upon its merits.
So ordered.
Sydney Smith, C.J., did not participate in this decision.
This appeal involves two separate and distinct controversies: (1) One of which is between the appellant Gulf Refining Company and the appellee Wallace Harrison, the appellee Ray M. Walker, and the various vendees of the latter, and which involves the question of whether or not the decree appealed from should be reversed in so far as it subordinates the rights of the said appellant under its lease of October 8, 1943, from George F. Taylor for an undivided three-fourths interest in the oil, gas and other minerals in 268 acres of land to the rights of the appellees, who claim one-half of the said three-fourths undivided interest through a conveyance of October 11, 1943, from the said George Taylor to the said Ray Walker, and through certain mesne conveyances, as innocent purchasers thereof; and (2) the other is between the appellants, American Liberty Oil Company, Blue Bird Investment Company, and G.G. Stanford, who claim the other one-fourth undivided interest in said minerals through a foreclosure of a deed of trust executed on August 4, 1939, by Ike Ulmer et ux., as owners of the 268 acres of land, in favor of Mrs. J.A. Lyon, as beneficiary, but which was not filed for record until December 18, 1939, and the heirs at law and devisees of A.J. Broderick and George Calvert, respectively, who claim under a mineral deed from the said Ike Ulmer et ux.
Then too, Kirby Petroleum Company asserts its claim to a 40-268 interest in the said minerals by virtue of a mineral deed to it from the said Ray Walker, but the said company recognizes, and correctly so, that its rights thereto are "subject to any valid and subsisting oil, gas and mineral lease" on said lands, and therefore makes no adverse claim to that of the appellant Gulf Refining Company, and its rights to the said interest is not contested by any of the other parties to either of these controversies, and no complaint is made here in regard thereto.
The first question then is whether or not the Gulf Refining Company was entitled under its bill of complaint and the proof to have its lease from George Taylor to the undivided three-fourths interest in the oil, gas and other minerals under the 268 acres of land confirmed and quieted as against the above-mentioned appellees to the controversy in regard thereto, who claim one-half of the said three-fourths interest, free of the said lease. Those appellees contend, and the trial court so found, that the conveyance from the said George Taylor to Ray Walker of October 11, 1943, has priority over the lease executed by the said George Taylor on October 8, 1943, in favor of the appellant Gulf Refining Company, on the ground that Ray Walker had neither actual nor constructive notice of the lease of the said appellant at the time he obtained and recorded his conveyance from the said Taylor. The appellee Wallace Harrison, and the other appellees to this particular controversy, all claim through the said Ray Walker, as heretofore stated.
The conveyance executed by Taylor to Walker on October 11, 1943, is on Form R-101, known as a "Mineral Right and Royalty Transfer." Taylor thereby conveyed to Walker for a consideration of $500, and other good and valuable considerations, one-half of the three-fourths undivided interest in the minerals which the said Taylor had theretofore acquired from Ike Ulmer, et ux.; and had leased to the appellant on October 8, 1943; and this conveyance contains a provision reading as follows: "This conveyance is made subject to any valid and subsisting oil, gas or other mineral lease or leases on said land, . . but, for the same consideration hereinabove mentioned, grantor has sold, transferred, assigned and conveyed and by these presents does sell, transfer, assign and convey unto grantee, his heirs, successors and assigns, the same undivided interest (as the undivided interest hereinabove conveyed in the oil, gas and other minerals in said land) in all the rights, rentals, royalties and other benefits accruing or to accrue under said lease or leases from the above described land; . . ." (Italics ours.)
This form of conveyance was selected and agreed upon when the same was executed at a conference between Taylor and his attorney, his grantee Walker, and his brother, both of whom are attorneys, and they either knew, or should have known, as investors in mineral rights that the same was being used to limit or qualify the warranty of title given by Taylor to the mineral interest therein conveyed. And, if we should hold that the above-quoted provision did not have the effect of doing so, we would not be construing the same, but rather we would be expunging it, and this we are not authorized to do under the well-established principles of law for the construction of contracts and the requirements that all of the valid provisions thereof shall be given some effect, unless meaningless. Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Southern Ry. Co. v. Anderson, 158 Miss. 543, 130 So. 743; Shapleigh Hardware Co. v. Spiro, 141 Miss. 38, 106 So. 209, 44 A.L.R. 393; Harris v. Townsend, 101 Miss. 590, 58 So. 529; 12 Am. Jur. 774; 16 Am. Jur. 534. Moreover, the presumption is that the grantor Taylor did not intend to unqualifiedly warrant unto Walker that which he had conveyed by lease to the appellant Gulf Refining Company three days prior thereto for a substantial cash consideration. It is not to be presumed that this qualification of the warranty was used for that purpose.
Moreover, on November 30, 1943, Walker made conveyances for fractional interests in these minerals to his various vendees and used this same form of conveyance.
In the case of Cummings v. Midstates Oil Corporation, 193 Miss. 675, 9 So.2d 648, 651, this Court held a conveyance "subject to any valid and subsisting oil, gas or other mineral lease or leases on said land," etc. (Form R-101) made by Cummings to Lutz to be subject to a prior existing lease to Pendleton, stating: "The only existing lease on the lands was the Pendleton lease . . . Therefore, while the Pendleton lease is not expressly described in the Lutz conveyance, the reference therein to existing lease could mean only the Pendleton lease."
It is true that the Pendleton lease was then of record, but there is nothing to prevent parties from using this form to protect the grantor on his warranty as against any outstanding lease. It is a matter of contract. And, in the Cummings case, the Court on its own motion, took notice that Form R-101 was generally used in this State, to denote that a mineral transfer is subject to an existing lease.
This form for conveyance of rents and royalties under an existing lease together with a proportionate interest in the minerals in fee upon the expiration of the existing lease has been approved not only by Summers, in his work on Oil and Gas, Section 1466 et seq. (except that his form is drawn for a term of years), but also by such eminent text-writers as Glassmire in his Law of Oil Gas Leases Royalties, page 410; Mills and Willingham in their Law of Oil Gas, page 648, Nos. 18 and 19; Nichols in his Encyclopedia of Legal Forms; 7th Ed., page 46, Sec. 7.213 and page 103, Sections 7.344 and 7.347; and Thornton in his Oil Gas, Section 3113.
However, it is contended by the said appellees (1) that the lease of the appellant Gulf Refining Company, of October 8, 1943, was not a valid and subsisting lease on the 11th day of October, 1943; (2) that if it was, then that on account of the said lease not being then of record the above-quoted provision in the conveyance from Taylor to Walker is ineffectual to bind the grantee therein since it fails to identify any particular lease to which it was made subject; and (3) that the grantee Walker had neither actual nor constructive notice of the said lease, same not having been filed for record and recorded on or prior to the execution and recordation of this conveyance from Taylor on October 11, 1943.
But, in view of the quoted stipulation in this conveyance from Taylor to Walker, we deem it unnecessary to discuss the facts relating to the contention last mentioned as to whether or not Walker had actual notice of the appellant's lease from Taylor when Walker obtained his conveyance from Taylor on October 11, 1943, for the reason that if the appellant's lease of October 8, 1943, was valid and subsisting on the said October 11, 1943, contrary to the contention first above stated, the rights of the appellees are, as a matter of contract, subordinate to the said lease of the appellant, unless the second contention is sound.
The proof discloses without dispute that on October 8, 1943, when George Taylor, the common source of title of the said appellant and the appellees, was the owner of the three-fourths undivided interest in the minerals under the said 268 acres of land, he executed and delivered to G.D. Bilberry, a representative of the Gulf Refining Company, the lease in favor of said company covering the said entire interest; that he was then paid therefor the sum of $1,005, on a $5 an acre basis, covering the entire 268 acres, by a draft for the said amount, and that this draft was deposited by Taylor and credited to his account at a local bank in Laurel on October 9, 1943; that Bilberry returned to Jackson with the lease, and forwarded the same on the next day to the Shreveport office of the appellant Gulf Refining Company; that on October 12, 1943, the Shreveport office discovered that 11 acres of the 268 had been inadvertently omitted from the lease; that this lease described the lands as being "all in Section 27, Township 1 North, Range 12 East," in which the 11 acres was located, and it contained the following provision: "This lease covers all the land, or interest, in the above section, township and range, whether correctly described herein or not," and the lease stated that all the land covered thereby was estimated to comprise 268 acres.
The proof further discloses that the omitted 11 acres were necessary to constitute the 268 acres, purchased by the draft of $1,005 at the rate of $5 per acre; that upon the discovery of the error, the lessee retained possession and control of this original lease until a corrected one was executed on October 18, 1943, by Taylor in its favor, and until the correcting lease had been received by Bilberry as a correction of the original lease of October 8, 1943; that in the meantime the draft for the $1,005 was paid in due course on October 13, 1943, by the appellant upon its receipt by a bank at Shreveport, upon the well founded assumption that Taylor would of course execute the corrected lease when presented to him so as to cover the entire acreage for which he was then being paid; and that when the correcting lease was forwarded to Bilberry at Jackson, he thereupon returned the original lease to Taylor's attorney.
It is contended by the appellees, however, that the lease of October 8, 1943, was never accepted by the appellant Gulf Refining Company, but was returned to the lessor Taylor because of its incorrectness. However, as heretofore shown, possession and control of this original lease was not relinquished until the correcting lease was received in exchange for its return. In the meantime, the lessee was entitled to have the correction made so as to specifically mention the omitted 11 acres in view of the provision in the original lease that it should cover all the land, in the section, township and range therein mentioned. It was a good and valid lease of the three-fourths undivided interest in the minerals thus located and owned by the lessor from the date of its execution and delivery on October 8, 1943, to the representative of the appellant. The correcting lease of October 18, 1943, called for no additional consideration, nor any change in the maturity dates or amounts of the annual rentals of $1 per acre to be paid therefor. We think there was a sufficient delivery and acceptance of the original lease pending the execution of the correcting lease containing the better description. The lessee did not stop payment on its draft given in payment of the purchase price of the original lease but paid the same in due course and prior to the execution of the correcting lease.
Therefore, we are of the opinion that the finding of the chancellor when he held that the appellant Gulf Refining Company held a valid and subsisting lease on an undivided three-fourths interest in the said minerals under the entire 268 acres from October 8, 1943, is amply supported, both by the foregoing facts and the law applicable thereto.
The Mineral Right and Royalty Transfer, executed on October 11, 1943, by the said Taylor in favor of Ray Walker was therefore made subject to the lease of October 8, 1943, since it was by its express terms made "subject to any valid and subsisting oil, gas and other mineral lease or leases on said land." And, it will be noted that the provision in question does not make the conveyance from Taylor to Walker subject to any valid and subsisting lease, or leases, of record, but to any such valid and subsisting lease, or leases. Moreover, there is expressly granted unto the said Walker by his grantor Taylor a one-half undivided interest in "all the rights, rentals, royalties and other benefits accrued or to accrue under said lease or leases" (italics ours) from the land described therein. The lease of October 8, 1943, in favor of the appellant was the only valid and subsisting lease then outstanding against said land. And, while this lease is not mentioned in particular, this Court held, as hereinbefore stated, in Cummings v. Midstate Oil Corporation, supra, that where a conveyance was made "subject to any valid and subsisting oil, gas or other mineral lease or leases" as made by Cummings to Lutz, the same was subject to prior existing lease to Pendleton, not specifically mentioned in the conveyance.
Moreover, the grantee Walker would not be entitled to accept a conveyance which conveys to him "all the rights, rentals, royalties and other benefits accruing or to accrue" under a valid and subsisting oil, gas or other mineral lease, or leases, and then reject that portion of his deed which expressly makes it subject to any such lease. He must reject this provision in its entirety or recognize and ratify it entirely. In other words, appellees may not be allowed to renounce the words contained in the deed from Taylor to Walker whereby royalties and delay rentals were conveyed and at the same time to hold on to the deed in so far as it conveyed minerals under the land. Commercial Bank of Manchester v. Lewis, 13 Smedes M. 226; Jennings v. Gage et al., 13 Ill. 610, 612, 56 Am. Dec. 476; Washington v. Soria, 73 Miss. 665, 19 So. 485, 55 Am. St. Rep. 555; Masonic Benefit Ass'n of Stringer Grand Lodge v. First State Bank, 99 Miss. 610, 55 So. 408; Prince v. Prince, 190 Miss. 309, 200 So. 126; 31 C.J.S., Estoppel, Sec. 37, et seq., p. 213; and 19 Am. Jur. 619, sec. 21.
We are of the opinion that the registry statutes, Sections 867, 868, 869, Code 1942, are inapplicable where a grantee accepts a conveyance which is expressly made subject to any valid and subsisting lease, or leases, and which obligates the grantor to permit him to receive one-half of the rights, rentals, royalties and other benefits accruing, or to accure, under said lease, or leases, in addition to the mineral interest conveyed; and that therefore the trial court was in error in declining to quiet and confirm the title of the appellant Gulf Refining Company to its lease of the three-fourths undivided interest in the oil, gas and other minerals in question, on the ground that the proof as to the actual notice on the part of Walker as to said lease did not meet the burden which the court held was resting upon the complainant, and the sufficiency of which proof we deem unnecessary to discuss. That is to say, the court was, in our opinion, in in error in subordinating the rights claimed by the said appellant to those claimed by the appellees therein, by eliminating the meaning and effect of the provision contained in the conveyance from Taylor to Walker, and that contained in the subsequent conveyances from Walker to the other appellees, respectively, which made them subject to any valid and subsisting lease, and which also granted to all of the said appellees rights and benefits under such lease.
As to the second controversy mentioned in the first paragraph of this opinion, the appellants, American Liberty Oil Company, Blue Bird Investment Company and G.G. Stanford, claim their one-fourth undivided mineral interest in only 228 acres of the 268 acres of land involved in the lease of the Gulf Refining Company, hereinbefore discussed, through a foreclosure of a deed of trust given by the owners of the said land, Ike Ulmer et ux., on August 4, 1939, to M.G. Travis, trustee, in favor of Mrs. J.A. Lyon, since there was omitted from the said deed of trust, notice of sale and trustee's deed, one 40 acre tract in the said 268 acres. The appellees, who are the heirs and devisees, respectively, of A.J. Broderick and George Calvert, claim an undivided one-fourth of the minerals under the entire 268 acres by virtue of a mineral conveyance to the said Broderick and Calvert on December 16, 1939, from the said Ike Ulmer et ux.
The deed of trust above mentioned was not filed for record until December 18, 1939, two days after the mineral conveyance was made to the said Broderick and Calvert, but the same was filed for record two days prior to the filing of the said mineral conveyance, on December 20, 1939. Therefore, under the provisions of Sections 867, 868, 869, Code 1942, the deed of trust had priority over the said mineral conveyance. Owens v. Potts, 149 Miss. 205, 115 So. 336. But, it is urged by the said appellees that the foreclosure of the said deed of trust, through which these appellants claim, was a void foreclosure; and in response to a motion for a bill of particulars in that behalf (and the writer of this opinion is not responsible for its being so long, and neither are the litigants), they say, as cross-defendants to the answer and cross-bill of these appellants, that the trustee's deed states on its face that the land was offered for sale by forties, and then as a whole, contrary to the requirements of Section 111 of the State Constitution, and of Section 2167, Code 1930 (in force when the foreclosure was held); (2) and that the advertising of the sale was confusing in that a copy of the notice thereof was posted at each of the courthouses of the two separate judicial districts of the county; (3) that the publication of the notice was made only in a newspaper published in the second district, whereas the land was situated in the first district, where the sale was made; (4) that the notice of sale specified that the same would be made at the south door of the courthouse, when there was no south door thereof; and (5) that the deed of trust, trustee's deed and the notice of sale, did not contain a sufficient description of 11 acres of the land, and that there was omitted therefrom 40 acres belonging to the mortgagors; and that therefore the deed of trust should have been foreclosed in chancery.
Responding to the first four grounds of the alleged invalidity of the sale, we deem it sufficient to say that, in our opinion, the manner of offering the land for sale did not violate either the constitution or the statute; that there could be no valid objection to posting notices of the sale at as many places in the county as the trustee should desire; that since there was no newspaper published in the first district, it was both legal and proper to publish the same in a newspaper published in the second district which had a general circulation over the county, as disclosed by the proof; and that the advertisement of the sale to be made at the "south door of the courthouse," when there was no south door thereof, was neither insufficient nor misleading inasmuch as there was a southeast door, at which public sales were usually held, and at which this one was made. The courthouse had only a front and a back door, and a prospective bidder in search of the south door would have had no difficulty in finding or being directed to the southeast door where the sale was being conducted.
As to the fifth ground of the alleged invalidity of this foreclosure sale, there is presented some difficulty, but we are of the opinion that the effect of the foreclosure sale was to convey to the purchaser the land actually owned by the grantors in the deed of trust in the governmental subdivisions therein described.
The land owned by the grantors at the time of the execution of the deed of trust is as follows: "Southeast Quarter (SE 1/4) less 2 acres in SE corner; 19 acres on East side of Northeast quarter of Northwest Quarter (NE 1/4 of NW 1/4); 11 acres on East side of Southwest Quarter of Northwest Quarter (SW 1/4 of NW 1/4); Southeast Quarter of Northwest Quarter (SE 1/4 of NW 1/4), and Southwest Quarter of Northeast Quarter (SW 1/4 of NE 1/4), all in Section 27, Township 1 North, Range 12 East." (In Jasper County, Mississippi.)
The land was thus described in the mineral conveyance of said Ike Ulmer et ux. in favor of Broderick and Calvert, but in the deed of trust, notice of sale and the trustee's deed the same was described as follows: "SE 1/4 of NW 1/4, and 19 acres on the East side of the NE 1/4 of NW 1/4, 11 acres in the SW 1/4 of NW 1/4, and the SW 1/4 of NW 1/4, Section 27, and SE 1/4 less 2 acres in Section 27, all in Township 1, Range 12, Jasper County, Mississippi."
It will thus be seen that there was omitted from the deed of trust, notice of sale and trustee's deed the SW 1/4 of the NE 1/4 of said Section 27; that the "11 acres in the SW 1/4 of the NW 1/4" is not located by this description, but it will be further observed that the trustee then offered and sold the whole of the said SW 1/4 of the NW 1/4, which, less 11 acres, was owned by J.M. Travis, an attorney who conducted the sale for the trustee, M.G. Travis; and that the description "SE 1/4, less 2 acres in Section 27" would be void only as to the excepted two acres, under the decision of McAllister v. Honea, 71 Miss. 256, 14 So. 264, and other and more recent cases decided by this Court.
As to the omission of the SW 1/4 of the NE 1/4 of said Section 27 owned by the grantors in the deed of trust, neither they nor the beneficiary can complain, since, in the first place, the grantors were not required to encumber all of their land, and in the second place, the beneficiary bid the full amount of her debt in purchasing the land described and sold. And, as to the "11 acres in the SW 1/4 of the NW 1/4," the location of which 11 acres is indefinite, we are of opinion that since there was then offered the entire SW 1/4 of the NW 1/4 the sale served to divest the mortgagors, and to vest in the purchaser at the foreclosure sale, title to whatever 11 acres they may have owned in the said 40 acres. This indefinite description did not, therefore, render the sale void, but did leave the purchaser vested with the rights as between herself and the owner of the remainder of the said 40 acres to have its location determined according to the description in the chain of title to the respective parts thereof.
We are, therefore, of the opinion that the trial court was in error in holding that this foreclosure sale was void, and in dismissing the cross-bill of these appellants as to their one-fourth undivided interest in the minerals under the said 228 acres involved in the foreclosure sale, through which they claim; and that therefore the court was in error in not adjudging that these appellants American Liberty Bell Company et al. were the owners of the said mineral interest in this 228 acres as against the claims of the heirs and devisees of the said Broderick and Calvert, and in not holding that the rights claimed by the said appellees were enforceable only as to the said SW 1/4 of the NE 1/4 of said Section 27, not involved in the foreclosure proceedings.
We have considered the numerous cases cited pro and con on the issues involved in both of the controversies herein decided, and we find that none of the cases held contrary to the views here announced in the light of the facts of this case. It would serve no useful purpose to review and discuss the numerous cases relied upon by the respective litigants.
The decree of the trial court must therefore be reversed and decree rendered here in favor of the priority of the lease of the appellant Gulf Refining Company, and confirming and quieting its title to the interest therein conveyed, as prayed for, and reversed and decree rendered here in favor of the appellants American Liberty Oil Company, Blue Bird Investment Company and G.G. Stanford as to the mineral interest claimed by them in the 228 acres involved in the foreclosure sale; and affirmed in all other respects wherein the decree appealed from is not inconsistent with the rights herein adjudged in favor of all of the said appellants.
Reversed in part, affirmed in part, and judgment here accordingly.
We have given careful consideration to the contentions in both suggestions of error herein, but we find nothing therein requiring a different conclusion from that reached in our original opinion.
However, the suggestion of error on behalf of the Broderick-Calvert heirs and devisees urges that Ulmer owned, and that the mineral rights conveyance from him to Broderick and Calvert described, "Nineteen acres on East side of Tallahatta Creek . . ." in the east side of the NE 1/4 of NW 1/4, Section 27; that Tallahatta Creek runs in a northeasterly and southwesterly direction and that the description of the nineteen acres in the Lyon trust deed as "19 acres on the east side of the NE 1/4 of the NW 1/4" necessarily failed to include some 5 to 6 acres of land in the form of a triangle lying outside and west of the description in the Lyon trust deed but within the description in the Broderick-Calvert conveyance, from which it is contended that the claim of these heirs and devisees is necessarily superior to that of persons claiming through the foreclosure of the Lyon trust deed. In the original opinion we ordered rendition of a decree in favor of Lyon trust deed vendees ". . . to the mineral interest claimed by them in the 228 acres involved in the foreclosure sale." We did not understand they were claiming any land without the calls of the Lyon trust deed. The rights of the parties to the triangular strip as now raised was not presented or adjudicated in that proceeding.
Suggestions of error overruled.
In addition to what is being said in the opinion of Justice Roberds overruling this suggestion of error, I desire to state that in my judgment the decree of the trial court on the issues involved as between the Gulf Refining Company and Wallace Harrison and others was erroneous, and should have been reversed for the further reason that the testimony showed almost conclusively that the vendor of Wallace Harrison and his co-defendants had actual notice of the existence of the Gulf Refining Company's lease at the time such vendor acquired his interest in the minerals in question.