Summary
In Holifield v. Perkins, 233 Miss. 876, 103 So.2d 433 (1958), there was a transfer of one-half mineral interest on a Texas form, which had written thereon: "This sale does not include any part of the delay rentals on the present oil lease on this property or on future leases."
Summary of this case from Thornhill v. System Fuels, Inc.Opinion
No. 40855.
June 9, 1958.
1. Deeds — construction — repugnant clauses.
In construing a deed, rules that where two clauses thereof are repugnant, first must prevail, or that an attempted reservation is void when repugnant to the granting clause, cannot be invoked where from an examination of the whole instrument the intention of the parties thereto is plain.
2. Contracts — construction — written and printed provisions.
When the written provisions of a contract cannot be reconciled with the printed provisions, the written provisions control.
3. Contracts — construction — duty of court to construe instrument as it is written.
It is the duty of the court to construe an instrument as it is written.
4. Deeds — words, "This sale does not include any part of the delay rentals on the present oil lease on this property or any future leases" in mineral conveyance — construed.
Where a conveyance of certain lands contained in addition to a printed granting clause, the written words, "This sale does not include any part of the delay rentals on the present oil lease on this property or any future leases", bonus payments on new leases were not retained by grantors, but until there was a producing well, no part of the delay rentals on any lease were conveyed.
5. Equity — amendments — amendment on sustaining of demurrer — complainant must apply for leave to amend, otherwise the order is properly a dismissal.
It is not the duty of a Chancellor in sustaining a demurrer, to inquire whether a party desires to amend or to insert leave to amend voluntarily, but if the complainant desires to amend on sustaining of a demurrer he should and must apply for leave to amend, otherwise the order is properly a dismissal.
Headnotes as approved by Hall, J.
APPEAL from the Chancery Court of Jones County, ROY P. NOBLE, Chancellor.
Jackson Ross, Colbert Dudley, Jackson, for appellants.
I. There was a conveyance of only nonparticipating royalty interest with reservation of the right to make leases, to collect bonus payments, and to collect rentals reserved in the grantors, Holifield. Abney v. Lewis, 213 Miss. 105, 56 So.2d 48; Allen v. Boykin, 199 Miss. 417, 24 So.2d 748; Anderson v. Butler, 203 Miss. 512, 35 So.2d 709; Armstrong v. Bell, 199 Miss. 29, 24 So.2d 10; Armstrong v. McCracken (Okla.), 229 P.2d 590; Bailey v. Federal Land Bank of N.O., 207 Miss. 764, 43 So.2d 375; Carroll v. Bowen, 180 Okla. 215, 68 P.2d 773; Calcote v. Texas Pac. Coal Oil Co., 157 F.2d 216, 167 A.L.R. 413; Dale v. Case, 217 Miss. 298, 64 So.2d 344; Fatheree v. McCormack, 24 So.2d 724, 725; Ford v. Jones, 226 Miss. 716, 85 So.2d 215; Fry v. Smith, 205 Okla. 222, 236 P.2d 699; Gardner v. Jones, 198 Okla. 691, 181 P.2d 838; Guess v. Harmonson (Tex.), 254 S.W. 779; Keegan v. Humble Oil Rfg. Co., 155 F.2d 971; Koenig v. Calcote, 25 So.2d 763; McNeil v. Shaw, 295 P.2d 276; Palmer v. Crews, 203 Miss. 806, 35 So.2d 430, 4 A.L.R. 2d 483; Paschall v. Royalties, Inc., 198 Okla. 646, 181 P.2d 558; Schlitter v. Smith, 128 Tex. 629, 101 S.W.2d 543; Shelly Oil Co. v. Butner, 201 Okla. 372, 205 P.2d 1153; Texas Gulf Producing Co. v. Griffith, 218 Miss. 109, 65 So.2d 834, 835-37; Westbrook v. Ball, 222 Miss. 788, 77 So.2d 274-75; Wood v. Sims, 273 S.W.2d 617; 58 C.J.S., Sec. 213 p. 539; 37 Words and Phrases, word "reservation"; Vol. III-A, Summers on Oil and Gas, Secs. 602.1, 604 pp. 340-41. Wells, Thomas Wells, Jackson, for appellees.
I. The deed as shown on its face conveys one-fourth mineral interest subject only to the right of the grantors to receive the rentals on an oil, gas and mineral lease then in existence on said land and the rentals on any future lease. Abney v. Lewis, 213 Miss. 105, 56 So.2d 48; Allen v. Boykin, 199 Miss. 417, 24 So.2d 748; Anderson v. Butler, 203 Miss. 512, 35 So.2d 709; Armstrong v. Bell, 199 Miss. 29, 24 So.2d 10; Bailey v. Federal Land Bank of N.O., 207 Miss. 764, 43 So.2d 375; Calcote v. Texas Pacific Coal Oil Co., 157 F.2d 216, 167 A.L.R. 413; Dale v. Case, 217 Miss. 298, 308-10, 64 So.2d 344, 346, 37 A.L.R. 2d 811; Ford v. Jones, 226 Miss. 716, 85 So.2d 215; Palmer v. Crews, 203 Miss. 806, 35 So.2d 430, 4 A.L.R. 2d 483; Salmen Brick Lbr. Co. v. Williams, 210 Miss. 560, 50 So.2d 130; Texas Gulf Producing Co. v. Griffith, 218 Miss. 109, 65 So.2d 834; Westbrook v. Ball, 222 Miss. 788, 77 So.2d 274; Vol. III-A, Summers on Oil and Gas, pp. 340-41.
II. The deed in the case at bar is clear and unambiguous and therefore not subject to construction. Abney v. Lewis, supra; Dale v. Case, supra; Garraway v. Bryant, 224 Miss. 459, 80 So.2d 59; Sumter Lbr. Co. v. Skipper, 183 Miss. 595, 184 So. pp. 296, 835; Westbrook v. Ball, supra.
III. The estate vested in the grantors was of such a nature that they had a legal right to convey minerals, retaining rentals, and the grantee had a right to accept the mineral interest, subject to the right of the grantors to receive rentals on the existing lease or future leases. Anderson v. Butler, supra; Ford v. Jones, supra; Westbrook v. Ball, supra.
IV. It is a cardinal rule of construction in this State that a deed must be constructed as a whole and from a fair consideration of the entire instrument if this can be reasonably done. Armstrong v. Bell, supra; Ford v. Jones, supra; Goff v. Avent, 122 Miss. 86, 84 So. 134; Gulf S.I. RR. Co. v. Patten, 180 Miss. 756, 178 So. 468-69; Richardson v. Moore, 198 Miss. 741, 22 So.2d 494; Salmen Brick Lbr. Co. v. Williams, supra; Texas Gulf Producing Co. v. Griffith, supra; Williams v. Batson, 186 Miss. 248, 187 So. 236, 128 A.L.R. 1138; 17 C.J.S., Contracts, Sec. 309; Vol. I, A.L.I., Restatement of the Law (Contracts), Secs. 226, 230, 236; Williston on Contracts (Rev. ed.), Secs. 601, 607, 618-19.
In this suit the appellants, all resident citizens of Jones County, Mississippi, filed a bill of complaint in the chancery court in the nature of a suit to remove a cloud from title. All the appellees were made parties to the bill, but the sole point involved is the interpretation of one sentence in an instrument which is the source of title of the appellees. The instrument in question is on a printed form which does not appear to be in general use in Mississippi and is evidently a Texas form, but in addition to the printing the following words were written after the granting clause in the printed form: "This sale does not include any part of the delay rentals on the present oil lease on this property or on future leases."
It is the contention of the appellants that after expiration of the lease then on the property the quoted clause reserves unto them the bonus payment for a new lease on the property and that such bonus payment was excluded from the grant in the deed and reserved unto the grantors.
(Hn 1) In the case of Dale v. Case, 217 Miss. 298, 64 So.2d 344, we laid down a number of rules to be used in the construction of deeds, one of which is that where two clauses of a deed are repugnant, the first must prevail, or that an attempted reservation is void when repugnant to the granting clause, cannot be invoked where, from an examination of the whole instrument, the intention of the parties thereto is plain. (Hn 2) Another rule which we laid down was that when the written provisions of a contract cannot be reconciled with the printed provisions, the written provisions control for the reason that the printed form is intended for general use without reference to particular objects and aims, but that the words written into a printed contract or deed will control the construction of the same. (Hn 3) Another rule laid down is that it is the duty of the court to construe the instrument as it is written.
(Hn 4) Applying these rules we find that the grantors in the deed conveyed one-half of all the oil royalties and gas rentals or royalties due and to become due under the terms of any lease, but that until there was a producing well no part of the delay rentals on any lease was conveyed. If the appellants had desired to retain for themselves the bonus payments for any new lease, it would have been an easy matter to have said "this sale does not include any part of the bonus or delay rentals on the present or any future lease." But what was written in the conveyance makes no mention of reserving or including in the conveyance any of the bonus payments from future leases. We therefore think that none of the bonus payments were reserved and that the appellants are not entitled to the interest in such bonus which they have conveyed away. Consequently the chancellor was eminently correct in sustaining the demurrer to the bill of complaint.
(Hn 5) The appellants request that if we do not agree with their contention, then we should remand the case so that they may file an amendment to the bill with leave to the appellees to file such answers as they may desire. We do not think this is the proper procedure. The bill of complaint did not state a case and the appellants did not request leave to file an amended bill. In Griffith's Mississippi Chancery Practice at Section 311 it is stated that when a demurrer is sustained a final dismissal of the bill follows unless the complainant obtain leave to amend; and further that it is not the duty of the chancellor on sustaining a demurrer to inquire whether a party desires to amend or to insert such leave voluntarily. If a complainant desires to amend on sustaining a demurrer he should and must apply for leave to amend, otherwise the order is properly a dismissal.
Affirmed.
McGehee, C.J., and Lee, Kyle and Holmes, JJ., concur.