Opinion
No. 40319.
December 10, 1956.
1. Minerals — conveyances — mineral reservation — construction — instrument conveyed one-half of minerals under tract.
Where special warranty deed executed by grantor, which owned only a one-half interest in minerals in tract of land conveyed, expressly provided that one-half of the oil, gas and mineral rights were reserved by grantor and not deeded therein, and further provided that any further lease money or royalty money received for the one-half owned by grantee was to be applied to reduction of indebtedness under the deed, grantor conveyed the one-half interest it had in the mineral rights of such land and thus no longer had any mineral interest therein.
Headnote as approved by Hall, J.
APPEAL from the Chancery Court of Jones County; ROY P. NOBLE, Chancellor.
L.K. Saul, Ellisville; Butler, Snow, O'Mara, Stevens Cannada, Jackson, for appellant.
I. The words convey and warrant are effective to transfer all the right, title, claim and possesion of the grantor only when an intention to convey a less estate is not expressed in the deed. Hart v. Gardiner, 74 Miss. 153, 20 So. 877; Sec. 852, Code 1942.
II. It is well settled that oil, gas and other minerals in place is a distinct estate. Gulf Rfg. Co. v. Stanford, 202 Miss. 602, 30 So.2d 516; Moss v. Jourdan, 129 Miss. 598, 92 So. 689; Wright v. Ingram Day Lbr. Co., 195 Miss. 823, 17 So.2d 196.
III. The terms exception and reservation are often used interchangeably in deeds. A grantor retaining minerals in land conveyed by statements in a deed reserving or excepting minerals is legally an exception, and creates a separate legal estate in the minerals. Cook v. Farley, 195 Miss. 638, 15 So.2d 352.
IV. There may be a difference between a reservation and an exception, and sometimes they are commonly used as interchangeable terms; however, the full meaning intended must be determined by the circumstances connected with the matter and the conveyance. The meaning of words in a mineral deed must be determined in the light of such circumstances under which they were used, and in construing a deed the Court must give effect to the intent of the parties, if such can be done, under recognized rules of construction. Allen v. Boykin, 199 Miss. 417, 24 So.2d 748; Federal Land Bank of N.O. v. Cooper, 190 Miss. 490, 200 So. 729; Richardson v. Moore, 198 Miss. 741, 22 So.2d 494; Gulf S.I. RR. Co. v. Patten, 180 Miss. 756, 178 So. 468.
V. It will be observed that when Hilton Grice and wife sold C.M. Crider a one-half undivided interest in and to all the oil, gas and other minerals on 80 acres involved in this suit (as may be seen by reference to Exhibit "1" attached to the bill of complaint), that he then had left and owned the soil and one-half of all mineral interest. It will be further observed that thereafter, on August 6, 1942, Hilton Grice conveyed the land involved in this suit to D.W. Dees and there were no exceptions written in this deed with reference to the mineral interest, which is shown by Exhibit "2" to the bill of complaint, and he therefore conveyed to D.W. Dees the soil and one-half undivided mineral interest in the 80 acres involved in this suit, and also all the mineral interest in the one-acre strip involved in this suit. It will be further observed that when D.W. Dees and his wife conveyed all the land involved in this suit to appellant, there was no reference whatsoever to any mineral interest in the land as shown by Exhibit "3" to the bill of complaint, and therefore the Merchants and Manufacturers Bank became the true owner of the soil and a one-half undivided mineral interest in the 80 acres of land involved in this suit, and the soil and all the mineral interest in the one-acre strip. Sec. 852, Code 1942.
VI. On December 12, 1944, the Merchants and Manufacturers Bank conveyed, by a special warranty deed, the land involved in this suit to Carl A. Welch, and following the description of the land there appears the following statement: "It being especially understood and agreed that one-half of the oil, gas and mineral rights are reserved by the grantor and not deeded herein. A right-of-way over, to and across said land is reserved for the purpose of exploration or utilization of said oil, gas or minerals, and that the payment of existing leases, having already been assigned, is not included."
VII. The above-quoted language in that deed is certainly unambiguous and clearly expressed the intention of the grantor to reserve the one-half undivided mineral interest, and not to convey it to the grantee. The appellant reserved one-half of the mineral interest and also reserved a right-of-way over, to and across said land for the purpose of exploration or utilization of said oil, gas or minerals. McNeese v. Renner, 197 Miss. 203, 21 So.2d 7; Westbrook v. Ball, 222 Miss. 788, 77 So.2d 274.
VIII. The rule for construction of a conveyance is the intent of the parties, but when the language in the deed is unambiguous, the object is to ascertain the intent of the grantor in the language used and not in unexpressed language. There is no doubt as to the intent and purpose of the grantor (the appellant), when this deed is considered, for there is no ambiguity in it to require the Court to decide what the grantor intended. Stuart v. McCoy, 163 Miss. 551, 141 So. 899; Abney v. Lewis, 213 Miss. 105, 56 So.2d 48; Dale v. Case, 217 Miss. 298, 64 So.2d 344.
IX. It is the duty of the Court to construe the instrument as it is written. Westbrook v. Ball, supra.
X. The appellant owns a one-half undivided mineral interest in and to all the oil, gas and other minerals in, on and under the land involved in this suit.
XI. There can be no adverse possession with reference to minerals owned separately from the owner of the soil, unless the owner of the soil either personally or by some one to whom he has leased the land, has actually begun drilling wells to take minerals from beneath the soil and holding the same adversely and to the exclusion of the title holder and the world, the mineral interest for at least ten years, the statutory period. Cook v. Farley, supra; Carlisle v. Federal Land Bank, 217 Miss. 289, 64 So.2d 142; Vol. II, Thornton on Oil and Gas, Sec. 466 p. 775.
Glender Dennis, Ellisville; Pershing B. Sullivan, Hattiesburg, for appellees.
I. The deed in question conveyed the soil and one-half of the minerals. Whelon v. Johnson, 192 Miss, 673, 6 So.2d 300; Salmen Brick Lbr. Co. v. Williams, 210 Miss. 560, 50 So.2d 130; Richardson v. Moore, 198 Miss. 741, 22 So.2d 494; Gulf S.I. RR. Co. v. Patten, 180 Miss. 756, 178 So. 468; Federal Land Bank v. Cooper, 190 Miss. 491, 200 So. 729; Westbrook v. Ball, 200 Miss. 788, 77 So.2d 274; Spence v. Clark, 152 Miss. 543, 120 So. 195; Griffith's Miss. Chancery Practice (2d ed.), Sec. 294 p. 279.
II. The appellant cannot say that it reserved one-half of the minerals and did not convey the other half because it only owned one-half of the minerals. Garraway v. Bryant, 224 Miss. 459, 80 So.2d 59.
APPELLANT IN REPLY.
I. The cases relied on by appellees are not controlling.
II. In order to affirm the decree sustaining the demurrer, the Court must literally strike the exception clause from the deed in its entirety. Garraway v. Bryant, 224 Miss. 459, 80 So.2d 59; Jones v. Metzger, 132 Miss. 247, 96 So. 161; Salmen Brick Lbr. Co. v. Williams, 210 Miss. 560, 50 So.2d 130; Sec. 844, Code 1942.
III. The exception clause in question shows on its face that appellant bank intended to reserve a part of the minerals unto itself, not merely to describe its own mineral ownership. United Gas Public Service Co. v. Roy (La. App.), 147 So. 705; Woods v. Sims (Tex.), 273 S.W.2d 617.
IV. The property excepted or the estate reserved in a conveyance is never included in the grant. Garraway v. Bryant, supra; King v. First Natl. Bank (Tex.), 192 S.W.2d 260, 163 A.L.R. 1128; Salmen Brick Lbr. Co. v. Williams, supra; Whitaker v. Neal (Tex.), 187 S.W.2d 147.
V. The Chancellor erred in sustaining the demurrer in that the bill of complaint avers that appellee Glender Dennis was not an innocent purchaser without knowledge. Treat v. Hunt Oil Co. (La.), 21 So.2d 721; Griffith's Miss. Chancery Practice, Sec. 291.
VI. The basic question in this case is very close, and the Trial Court erred in deciding it on demurrer. Federal Land Bank v. Fidelity Deposit Co., 165 Miss. 715, 720, 147 So. 917; Garraway v. Bryant, supra; Gully v. Bridges, 170 Miss. 891, 895, 156 So. 511; Hesdorfer v. McKay (Miss.), 128 So. 356, 357; Richardson v. Moore, 198 Miss. 741, 22 So.2d 494; Salmen Brick Lbr. Co. v. Williams, supra; Taylor v. Twiner, 193 Miss. 410, 421, 9 So.2d 644; White v. Turner, 197 Miss. 265, 272, 19 So.2d 825; Griffith's Miss. Chancery Practice, Sec. 310.
This suit was brought by the appellant to remove as a cloud on its title to 80 acres of land the claim of Glender Dennis to an undivided one-half oil, gas and mineral interest therein and a mineral lease made by him to Wallace R. Gunn which had been assigned to Humble Oil Refining Company. The bill of complaint sets out a complete deraignment of title from the Government down to date and also has attached thereto as exhibits several deeds which have been executed, including a mineral deed to C.M. Crider for an undivided one-half interest in and to all of the oil, gas and other minerals of every kind and character, in, on, and under the land herein involved, which deed is dated January 14, 1941, and was recorded February 5, 1941. There is also exhibited a deed from Hilton Grice to D.W. Dees for the entire land without any mention of the previous conveyance by him of a one-half interest in the minerals, which deed was recorded August 10, 1942. There is also exhibited a deed from D.W. Dees and wife to the appellant conveying the said land without any mention of the prior conveyance of one-half of the minerals, which deed is dated November 30, 1944, and was filed for record December 13, 1944.
There is next exhibited a special warranty deed from the appellant to Carl A. Welch for said land, dated December 12, 1944, and recorded the same day. This deed contains the following provision: "It being especially understood and agreed that one-half of the oil, gas and mineral rights are reserved by the grantor and not deeded herein. A right of way over to and across said land is reserved for the purpose of exploration or utilization of said oil, gas or minerals and that the payment of existing leases, having already been assigned, is not included. Any further lease money or royalty money received for the one-half owned by said Welch is to be applied to the reduction of the within described indebtedness, situated in the First District of Jones County, Mississippi."
There is next exhibited a deed from Carl Welch and wife Hazel Welch to M.R. Wade, dated April 2, 1945, and recorded April 10, 1945, conveying the same land with this addition, "together with one-half of all mineral rights of said lands". There is next exhibited a deed from the heirs of M.R. Wade to Glender Dennis, dated June 14, 1955, and recorded July 6, 1955. This deed provides as follows: "An undivided one-half (1/2) interest in and to all oil, gas and other minerals in, on and under the above described lands, having been heretofore conveyed or reserved by former owners, is excepted from this conveyance. By this conveyance, grantors convey and warrant unto grantee the above described lands and an undivided one-half (1/2) interest in and to all of the oil, gas and other minerals in, on and under the above described lands."
The defendants filed a demurrer to the bill and the same was sustained by the chancellor, from which action the Merchants Manufacturers Bank appeals here.
(Hn 1) Under the above mentioned status of the pleadings appellant contends that it is the owner of an undivided one-half interest in the minerals. We do not think so and in our judgment this case is controlled by what was said in Salmen Brick Lumber Co. v. Williams, 210 Miss. 560, 50 So.2d 130, and in the more recent case of Garraway v. Bryant, 80 So.2d 59, not yet reported in State Reports. In drawing deeds, the words "reserve" and "except" are frequently used interchangeably when applied to minerals, and we think that all that the Bank obtained under its deed from Dees was an undivided one-half oil, gas and mineral interest and that when it conveyed to Welch and reserved only a one-half oil, gas and mineral interest, the remaining one-half interest therein went to Welch. This is emphasized by the provision in the deed, as above quoted, that any further lease money or royalty money received for the one-half owned by said Welch is to be applied to the reduction of the within described indebtedness, which indebtedness was a vendor's lien which, according to the exhibits to the bill, was fully satisfied and cancelled on April 2, 1945. Appellant in its brief points out that the deed from the Bank was only a special warranty deed and that the deeds mentioned in the Salmen and Garraway cases were warranty deeds, but in view of the above mentioned statement as to lease money or royalty money received for the one-half owned by Welch, we are of the opinion that this is a recognition by appellant of the fact that Welch was receiving a one-half mineral interest under the deed and it makes no difference that the conveyance was only by special warranty. Our conclusion would be the same even if it were only a quitclaim deed. We think the ruling of the chancellor was correct and his decree is therefore affirmed.
Affirmed.
Roberds, P.J., Kyle, Arrington and Gillespie, JJ., concur.