Summary
In Richardson v. Moore, 1945, 198 Miss. 741, 22 So.2d 494, 495, the Court had before it a question of (Hn 1) the construction of certain mineral exceptions, and there outlined several principles of construction of contracts which are applicable to the present case.
Summary of this case from Salmen Brick Lbr. Co., v. WilliamsOpinion
No. 35899.
June 11, 1945. Suggestion of Error Overruled September 24, 1945.
1. DEEDS.
A deed must be read in the light of the circumstances surrounding the parties when it was executed.
2. DEEDS.
The construction of a deed should be upon the entire instrument, and each word and clause therein should be reconciled and given a meaning if it can be reasonably done.
3. DEEDS.
In construing a deed, the main document and that to which it refers must be construed together.
4. DEEDS.
Where the wording of the deed is ambiguous, the practical construction placed thereon by the parties will have much weight in determining the meaning.
5. DEEDS.
Where deed is ambiguous, that construction favorable to grantee will be adopted.
6. MINES AND MINERALS.
A deed reserving oil and mineral rights "in accordance with deed . . . conveying to us the said land" did not except the minerals but conveyed the minerals to grantee, where the circumstances surrounding execution of deed showed that grantors were not attempting to retain in themselves title to the minerals, but to protect their warranty to the grantee from whatever reservation or exception the deed to grantor not yet executed might contain, and subsequent conduct of parties claiming under the alleged reservation was inconsistent with any claim of ownership of mineral rights.
APPEAL from chancery court of Pearl River county, HON. LESTER CLARK, Chancellor.
H.H. Parker, of Poplarville, for appellants.
The deed of the Edward Hines Yellow Pine Trustees, being referred to directly by the grantors in the deed from the Hoskins-Moore Lumber Company to Mrs. Maude S. Smith, makes it necessary for the two deeds to be construed together.
Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Richardson v. Marqueze, 59 Miss. 80, 42 Am. Rep. 353; Franton v. Nelson (La.), 77 So. 767; Newman v. Tymeson, 13 Wis. 172, 80 Am. Dec. 735; Mitchell v. D'Olier, 59 L.R.A. 949; Thomas v. Young (W. Va.), 117 S.E. 909; 18 C.J. 280, Sec. 249, p. 281, Sec. 250; 26 C.J.S. 362, Sec. 100, subsec. H; 16 Am. Jur. 594, Sec. 275, p. 595, Sec. 276; 8 R.C.L. 134, 1079, Sec. 135.
The description in the deed referred to controls, in fact, is considered a part of the same transaction to the same effect as if copied into the deed making the reference.
Dunn v. Stratton, supra; Doe ex dem. Caillaret v. Bernard, 7 Smedes M. (15 Miss.) 319; Barry v. Gulfport Bldg. Loan Ass'n., 158 Miss. 163, 128 So. 569; Sorrells v. Alexander Bros., 165 Miss. 466, 144 So. 560; Hines v. Robinson, 57 N.E. 234, 99 Am. Dec. 772; Stevens v. Hollister, 18 Vt. 294, 46 Am. Dec. 154; Newman v. Tymeson, supra; Franton v. Nelson, supra; Lawler v. Bradford (La.), 37 So. 12; Sabatier v. Bowie Lumber Co., 129 La. 658, 56 So. 628; 16 Am. Jur. 594, Sec. 265, p. 595, Sec. 276; 18 C.J., 280, sec. 249, p. 281, Sec. 250, 26 C.J.S. 362, Sec. 100, subsec. H; 8 R.C.L. 1076, Sec. 134, p. 1079, Sec. 135.
If the deed referred to does not contain the thing excepted or granted, then there is nothing excepted or nothing granted, in other words, the deed referred to controls.
Pierce v. Gardner, 83 Pa. 211; James River Kanawha Power Co. v. Old Dominion, etc., 122 S.E. 344; Oneil v. Potter, 104 N.W. 396; Moore et al. v. Henderson et al., 87 W. Va. 699, 105 S.E. 693; 26 C.J.S. 446, Sec. 139.
The intent of the parties controls in connection with a reservation or exception and regardless of what the grantor in a deed called it, whether reservation, or exception, these terms being used interchangeably, the courts look to the intent of the grantor and not the name by which he designated it.
Federal Land Bank v. Cooper, 190 Miss. 490, 200 So. 729; Goosey v. Goosey, 48 Miss. 210; Lampkin v. Heard, 137 Miss. 523, 102 So. 565; Citizens' Lumber Co. v. Netterville, 137 Miss. 310, 102 So. 178; Continental Casualty Co. v. Pierce, 170 Miss. 67, 154 So. 279; Gulf S.I.R. Co. v. Patten, 180 Miss. 756, 178 So. 468; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Lewis v. Standard Oil Co. of California, 88 F.2d 512; Aiken v. McMillan, 213 Ala. 494, 106 So. 150; Terry v. Tinsley, 140 Va. 250, 124 S.E. 290; 1 Summers Oil Gas (Perm. Ed.), Sec. 137; 16 Am. Jur. 615, Sec. 309; Restatement of the Law, Contracts, p. 310, Sec. 230; 26 C.J.S. 454, Sec. 140.
Intention must be found in words contained in the deed in the light of conditions then existing.
Goosey v. Goosey, supra; Sumter Lumber Co. v. Skipper, 183 Miss. 595, 184 So. 296; Williams v. Batson, 186 Miss. 248, 187 So. 236; Federal Land Bank v. Cooper, supra; Cook v. Farley, supra.
Every word and clause in a deed should be given meaning, if possible, and not violative of the law; no court is justified in striking out words from a deed, or adding words thereto; the courts construe the deed as written.
Sumter Lumber Co. v. Skipper, supra; Gaston v. Mitchel, 192 Miss. 452, 4 So.2d 892; Bradley v. Howell, 161 Miss. 346, 134 So. 843; Goff v. Jacobs, 164 Miss. 817, 145 So. 728; Goosey v. Goosey, supra; Williams v. Batson, supra; Hartford Fire Ins. Co. v. Williams, 149 Miss. 123, 115 So. 199; Shell Petroleum Corp. v. Haller, 70 F.2d 811; 26 C.J.S. 331, Sec. 86; Restatement of the Law, Contracts, Sec. 326, subdivs. a, b, c.
In applying the rules of construction hereinbefore set out, words used in a deed will be given their ordinary, usual and accepted meaning.
Williams v. Batson, supra; Sumter Lumber Co. v. Skipper, supra; State v. Hughes, 102 Pa. 562, 31 N.W. 270; Re Coane's Estate, 310 Pa. 138; City of Norfolk v. Norfolk Landmark Pub. Co., 95 Va. 564, 28 S.E. 259; 1 C.J. 584, Sec. 159; 26 C.J.S. 332-333, Sec. 86; 42 C.J.S. 475, Sec. 14; Restatement of the Law, Contracts, p. 319, Sec. 235; 20 Words Phrases (Perm. Ed.), p. 368.
If the wording of the deed under consideration is ambiguous, then the additional rule of construction applies, namely, that the practical construction placed on the instrument by the parties can be resorted to in aid of a construction that will give effect to the intention of the parties.
Town of Como v. Pointer, 87 Miss. 712, 40 So. 260; Yazoo M.V.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393; Cummings v. Midstates Oil Co., 193 Miss. 675, 9 So.2d 648.
If the lower court held that this deed was ambiguous, so much so that it had to strike out a part thereof to reach the decision that it did, then the construction of the deed, under all of the rules of construction, would be such as to be more favorable to the grantee, Mrs. Maude S. Smith, and most unfavorable to the grantor.
Richardson v. Marqueze, supra; Soria v. Harrison County, 96 Miss. 109, 50 So. 443; Sumpter Lumber Co. v. Skipper, supra; Love Petroleum Co. v. Atlantic Oil Producing Co., 169 Miss. 259, 153 So. 389; Home Mutual Fire Ins. Co. v. Pittman, 111 Miss. 420, 71 So. 739; Lange v. Walters, 150 Cal. 142, 103 P. 889, 19 Ann. Cas. 1207; Jackson v. Hudson, 3 Johns (N.Y.) 375, 3 Am. Dec. 500; Grafton v. Moir, 130 N.Y. 405, 29 N.E. 974; Douglass v. Lewis, 13 C.S. 75, 33 L.E. 53; Erwin v. O. S., 16 Howe (C.S.) 513, 14 L.E. 1038; Nettles v. Richman, 228 Ala. 52, 152 So. 450, 91 A.L.R. 1455; Shell Petroleum Corp. v. Ward, 100 F.2d 778; Rose v. Union Gas Oil Co., 207 F. 16; Milner Land Co. v. Houston, 225 Ala. 223, 142 So. 410; 16 Am. Jur. 530, Sec. 165, p. 615, Sec. 309; 18 C.J. 345, Sec. 347; 26 C.J.S. 451, Sec. 140b; Restatement of the Law, p. 328, Sec. 236, subsec. d.
The appellants are entitled to the oil, gas and minerals in, on and under the land in question, if the court should hold that the appellants did not acquire the oil, gas and minerals under the deed in question by their adverse possession of said products.
Federal Land Bank v. Cooper, supra; Cook v. Farley, supra; Merrill Engineering Co. v. Capital Nat. Bank of Jackson, 192 Miss. 378, 5 So.2d 666; Wight v. Ingram-Day Lumber Co., 195 Miss. 823, 17 So.2d 196; Fox v. Pearl River Lumber Co., 80 Miss. 1, 31 So. 583; Moss v. Jourdan, 129 Miss. 598, 92 So. 689; Stern v. Great Southern Land Co., 148 Miss. 649, 114 So. 739; Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270; City of Jackson v. Ashley, 189 Miss. 818, 199 So. 91; Hazlip v. Nunnery (Miss.), 29 So. 821; Gulf Refining Co. v. Stone, 197 Miss. 713, 21 So.2d 19; Chicago Wilmington Coal Co. v. Herr, 40 F. Supp. 311, Modified C.C.A., 127 F.2d 1010, 317 U.S. 669, 87 L.Ed. 538; Rio Bravo Oil Co. v. Staley Oil Co., 138 S.W. 838, affirmed 138 Tex. 198, 158 S.W. 293; Chicago Wilmington Coal Co. v. Milner, 42 F. 81, modified C.C.A. 131, F.2d 117; Elvira Clayborn v. Laura Bond, 67 A.L.R. 1436, also see 13 L.R.A. 372; Moore v. Henderson, 87 W. Va. 699, 105 S.E. 693; 40 C.J. 970, subsec. under Sec. 556.
Words used in one sense in one part of a contract are deemed of like significance in another part.
American Book Co. v. State (Ala.), 113 So. 592; 13 C.J. 532, Sec. 489; 18 C.J. 258, Sec. 208; 17 C.J.S. 721, Sec. 303; 26 C.J.S. 332, Sec. 86.
The deed will be upheld as written, and every word therein will be used without deleting from the deed a single word.
Gaston v. Mitchell, supra; Cook v. Farley, supra; Federal Land Bank v. Cooper, supra.
J.M. Morse, of Poplarsville, for appellees.
Adverse possession of surface of land under deed, purporting to convey entire title to and interest in land to possessor, is not adverse to reservation of minerals in land by a deed of his remote grantor.
Cook v. Farley, 195 Miss. 638, 15 So.2d 352.
The reservation or exception attacked is a valid reservation.
Federal Land Bank of New Orleans v. Cooper, 190 Miss. 490, 200 So. 729; Johnson v. Seely, 139 Miss. 60, 103 So. 499; Cook v. Farley, supra.
Payment of taxes for over the statutory period does not constitute adverse possession.
Moore v. Neill, 117 Miss. 862, 78 So. 774; Leavenworth v. Reeves, 106 Miss. 722, 64 So. 660.
Hugh V. Wall, of Brookhaven, for appellees.
Ordinarily the granting clause and the clause making the reservation or exception will be reconciled and effect will be given to both.
Federal Land Bank of New Orleans v. Cooper, 190 Miss. 490, 200 So. 729; Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Moss v. Jourdan, 129 Miss. 598, 92 So. 689; Barksdale, 92 Miss. 166, 45 So. 615; Moore v. Griffin (Kan.), 4 L.R.A. (N.S.) 477; Frendenberger Oil Co. et al. v. Simmons et al., Ann. Cas. 1918A, 873; 16 Am. Jur. 611, Sec. 303, p. 615, Sec. 309; 26 C.J.S. 321, p. 328, Sec. 84, p. 331, Sec. 86; 16 C.J.S. 324, Sec. 83; 1 Summers Oil and Gas 352, Sec. 137.
If the language is sufficiently clear to define the character and extent of the reservation or exception, it must be given effect.
Federal Land Bank of New Orleans v. Cooper, supra; Cook v. Farley, supra; Moss v. Jordan, supra; 16 Am. Jur. 615, Sec. 309.
A deed will be so construed as to give it force and effect and to render it valid where possible.
26 C.J.S. 321.
An instrument intended to operate as a deed should so operate if it is not legally impossible for it to do so. This rule applies even though the instrument should be indefinite and admits of two constructions and an interpretation which will give a deed force will be adopted in preference to one which will make it of no effect.
26 C.J.S. 321.
A deed should be construed as a whole and the intent must primarily be considered from a fair consideration of the entire instrument and the language employed therein.
26 C.J.S. 328, sec. 84.
If the expressed meaning is plain on the face of the instrument it will control.
26 C.J.S. 331, Sec. 86.
It is a settled rule of law based on sound policy that a grantor of land may retain his legal interest in the oil and gas thereunder by an expression of intent to that effect in a deed of the land, whether the retention of this separate interest in effected by exception or reservation. In determining this question, the use of the terms themselves are not controlling, but the courts look to the intent of the parties and the nature of the legal interest sought to be created.
Moore v. Griffin (Kan.), supra; 1 Summers Oil and Gas 552, Sec. 137.
The main object in construing a deed is to ascertain the intention of the parties from the language used and to effectuate such intention where not inconsistent with any rule of law.
16 C.J.S. 324, Sec. 83.
An exception eliminates from the operation of the terms of the granting clause so much of what would otherwise pass by them as is embraced in the terms of the exception, and the deed, as a whole, passes what is embraced in the terms of the grant less what is included in the exception.
Frendenberger Oil Co. et al. v. Simmons et al., supra.
Whatever is expressly granted or covenanted or promised cannot be restricted or diminished by subsequent divisions or restrictions, but general or doubtful clauses precedent may be explained by subsequent words and clauses not repugnant or contradictory to the express grant, covenant or promise.
Barksdale v. Barksdale, supra.
Adverse possession of surface of land under deed, purporting to convey entire title to and interest in land to possessor, is not adverse to reservation of minerals in land by a deed of his remote grantor.
Cook v. Farley, supra; Pace v. State ex rel. Rice, 191 Miss. 780, 4 So.2d 270; Merrill Engineering Co. v. Capital Nat. Bank of Jackson, 192 Miss. 378, 5 So.2d 666; Barker v. Campbell-Ratcliff Land Co., L.R.A. 1918A, 487; 18 R.C.L. 1175, Sec. 84; Glassmire on Oil and Gas, p. 135, Sec. 39; 2 Thornton on Oil and Gas 775, Sec. 466.
Argued orally by H.H. Parker, for appellants, and by H.V. Wall and J.M. Morse, for appellees.
The question to be determined herein is the title and ownership of the minerals and mineral rights in certain lands located in Pearl River County, Mississippi.
Edward Hines Yellow Pine Trustees, by warranty deed conveyed the lands to Hoskins-Moore Lumber Company, a co-partnership of four persons, but which deed contained this provision: "The fee herein is subject to mineral and oil rights, if any, now of record and not owned by the grantors herein and subject also to all public highways."
It is agreed that no person other than the grantors in that deed then had, or claimed, any mineral rights in the lands, and that this deed vested in Hoskins-Moore Lumber Company the fee-simple title to the lands.
Hoskins-Moore Lumber Company conveyed the lands to Mrs. Maude S. Smith by warranty deed which contained this provision: "Also, reserving the oil and mineral rights on the said lands together with the right to enter upon, explore for and remove the said oil and mineral in accordance with a deed made to us by the Edward Hines Yellow Pine Trustees, conveying to us the said land."
Mrs. Smith, by warranty deed, conveyed the lands to J.C. Richardson, "Subject, however, to any mineral or oil rights, if any such exist, belonging to any former owner of said land other than this grantor." J.C. Richardson later conveyed to T.F. Richardson a one-half interest in whatever he got under the Smith deed.
The Richardsons, complainants below and appellants here, claim ownership under the Smith deed and also by adverse possession. Appellees, defendants below, controvert appellants' claim of title by adverse possession, and also contend that the Hoskins-Moore deed to Mrs. Smith excepted the minerals, and that they, being the one surviving partner and the heirs of three deceased partners of Hoskins-Moore Lumber Company, are the owners of such minerals. The lower court found for appellees.
The question is: Did the deed to Mrs. Smith convey, or except, the minerals?
In trying to solve this question, we should keep in mind certain well-established principles of construction of contracts. Those applicable here are (1) the deed must be read in the light of the circumstances surrounding the parties when it was executed; (2) that the construction should be upon the entire instrument, and each word and clause therein should be reconciled and given a meaning, if that can be reasonably done; (3) that the main document and that to which it refers must be construed together, (4) that if the wording of the deed is ambiguous, the practical construction placed thereon by the parties will have much weight in determining the meaning; and (5) that in case the deed is ambiguous, and subject to two possible constructions, one more favorable to the grantee, and the other more favorable to the grantor, that construction favorable to the grantee will be adopted.
As to the circumstances surrounding the parties, the deed from Edward Hines Trustees to Hoskins-Moore is dated August 31, 1922, and that from Hoskins-Moore to Mrs. Smith is dated August 19th, twelve days earlier, and the Hines deed was acknowledged in Chicago the day of its date. Apparently when Hoskins-Moore prepared their deed they did not know whether any, or if so, what mineral exception would be in the Hines deed. But, it is also apparent that Hines had theretofore agreed to convey the lands to Hoskins-Moore, because the deed to Mrs. Smith recites that, under date of July 29, 1922, Hoskins-Moore had executed a deed to the timber on the lands, and the conveyance of the land was subject to that timber deed. In other words, it is clear that Hoskins-Moore, when they prepared their deed to Mrs. Smith, knew Hines was going to convey the lands to them, but were not certain what provision, if any, the deed would contain with reference to the minerals.
It is further noted that the Hoskins-Moore deed to Mrs. Smith undertook to reserve the oil and minerals "in accordance with a deed made to us . . ." by Edward Hines Trustees. We must give meaning and effect to the quoted phrase unless prevented by the dominant meaning of the entire instrument. If the grantors intended to except the minerals outright, there was no need to use that expression. They could have more easily said "But all minerals are hereby excepted." If we hold the minerals were excepted without qualification, we entirely disregard the reference to the Hines deed. The circumstances surrounding the parties and the reference to the Hines deed show clearly that Hoskins-Moore were simply trying to protect their warranty to Mrs. Smith from whatever reservation, or exception, the Hines deed might contain, and not that they were attempting to retain in themselves title to the minerals in the lands conveyed.
Furthermore, looking to the Hines deed, we find it contains words which might, but do not in fact, except the minerals, because no person other than the grantors therein owned, or claimed, any mineral rights. The deed to Mrs. Smith excepted the minerals in accordance with that deed, which, in fact, was not an exception at all.
The action of the parties regarding the subject matter is of much weight in ascertaining their meaning and intent with reference thereto. The bill in this cause was filed in May, 1944. The Hoskins-Moore-Smith deed was executed some twenty-two years prior, yet the four partners composing Hoskins-Moore Lumber Company never had the minerals separately assessed to them, nor paid taxes thereon, nor have the present appellees done so, but, on the other hand, Mrs. Smith and appellants, claiming under her, have paid all taxes against said lands, and have been in the actual, open, peaceable, continuous possession thereof, living upon, fencing, cultivating and using the same, during all of that time. Moreover, Mr. R.H. Crosby, the only surviving original partner, and Mr. Sam W. Hoskins, Jr., only heir of another original partner, frankly state in their answers that they never made any claim to the minerals before the filing of this suit, and Mr. Crosby does not now do so. The other appellees, while denying in general terms the allegation in the bill that they never made any claim thereto, fail to allege, or show, any specific, or affirmative, act or conduct asserting such claim. On the other hand, appellants, on July 13, 1933, executed to J.R. Smith a mineral lease on said lands, which was duly recorded, and Smith, in turn, assigned such lease to the Sun Oil Company, and that company has since paid the taxes on such lease, all without protest or complaint or attempted interference on the part of appellees.
And applying the last foregoing stated rule of construction, if the provision under construction is ambiguous, which it is, it is our duty to construe it favorably against appellees, who claim through the grantors in the deed containing such ambiguous provision, and favorably to appellants, who derive their title through the grantee in such deed. And this we do, and hold that the deed to Mrs. Smith did not, under the circumstances here, retain in Hoskins-Moore Lumber Company, the grantors in such deed, any right to, or interest in, the minerals in said lands, and that, consequently, appellees are not now the owners of any such right or interest, but that the title to, and ownership thereof, are vested in appellants, subject to the rights of the Sun Oil Company, if any.
Reversed and judgment here for appellants.