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In Holmes v. Compton, 273 Ala. 554, 142 So.2d 697 (1962), this Court held that a deed which conveyed a fee by the granting clause but which later reserved a mineral interest, disclosed an intention to reserve a mineral interest, although the granting clause contained words of inheritance.
Summary of this case from Wilkins v. FergusonOpinion
8 Div. 71.
January 18, 1962. Rehearing Denied June 28, 1962.
Appeal from the Circuit Court, Morgan County, Newton B. Powell, J.
Harris Harris, Decatur, for appellants.
The real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, including its several parts, resort to arbitrary rules of construction is not required. And it is the duty of the court under this rule to reconcile the terms of the instrument, if that may reasonably be done to avoid a repugnancy in its provisions or terms. This is true notwithstanding the granting clause contains words of inheritance. Kettler v. Gandy, 270 Ala. 494, 119 So.2d 913.
As a general rule deeds of land reserving or excepting oil or mineral interests will be construed so as to give effect to the reservation, 24 Am.Jur. 536; McCall v. Nettles, 251 Ala. 349, 37 So.2d 635.
A reservation or exception of mineral interests in a deed following immediately after the description of the property conveyed will be upheld and effective even though there is contained in the granting clause words of inheritance. Sanford v. Alabama Power Co., 256 Ala. 280, 54 So.2d 562.
There is no difference between an exception and a reservation in a deed insofar as the construction is concerned. Webb v. Jones, 163 Ala. 637, 50 So. 887.
The description of the property in a deed is a part of the granting clause thereof. Prudential Ins. Co. v. Karr, 241 Ala. 525, 3 So.2d 409.
It is generally recognized that the term "minerals" includes oil. Carter Oil Co. v. Blair, 256 Ala. 650, 57 So.2d 64.
Peach, Caddell Shanks, John A. Caddell and Robt. H. Harris, Decatur, for appellees.
One of the cardinal rules is that deeds of bargain and sale founded upon a valuable consideration are to be construed most strongly against the grantor and in favor of the grantee. Dickson v. Van Hoose, 157 Ala. 459, 47 So. 718, 19 L.R.A., N.S., 719.
The presumption is, and all doubts are resolved in favor of a fee simple estate. Johnson v. Harrison, 272 Ala. 210, 130 So.2d 35.
The granting clause, unless ambiguous or obscure, prevails over other clauses in the deed, if they are contradictory or repugnant to the granting clause. Henry v. White, 257 Ala. 549, 60 So.2d 149.
If there be two clauses which are utterly inconsistent with each other, the last shall give way to the first, the maxim being the first clause in a deed, and the last clause in a will shall prevail. Wright v. Smith, 257 Ala. 665, 60 So.2d 688.
When subsequent words are of doubtful import, they cannot be construed as to contradict the preceding words which are certain. Johnson v. Harrison, supra; Kettler v. Gandy, 270 Ala. 494, 119 So.2d 913.
The term all minerals refers to the various kinds of minerals such as gold, silver, etc., rather than the percentage of interest in them. Kentucky Diamond Mining Development Co. v. Kentucky Transvaal Diamond Co., 141 Ky. 97, 132 S.W. 397.
This is an appeal from a final decree in the equity court by the respondents Hester Clarkson Holmes, Margaret Clarkson. The third respondent in the court below, Edith Clarkson McDonald, is not an appellant. The bill of complaint as originally filed was to sell for division the oil and minerals on a 12 acre tract of land more particularly described in the bill of complaint. The bill of complaint was subsequently amended by seeking to quiet title to the 12 acres of land or in the alternative to sell for division the mineral and oil interests.
The case was submitted upon an agreed statement of facts. To state the facts as briefly as possible Mrs. Ada Cornelison executed a deed in 1928 to complainants' predecessors in title conveying 12 acres of land. The deed contained words of inheritance and immediately after the description and before the habendum clause contained the following provision, "the grantor herein reserves to herself and her heirs 1/2 of the oil and all minerals that may be discovered in said land." In order that there may be a thorough understanding of the situation we set out the deed as follows, omitting the acknowledgment of the deed:
"STATE OF ALABAMA) MORGAN COUNTY) Know all men by these presents, That for and in consideration of the sum of Twenty five hundred dollars, to the undersigned in hand paid by Virgil Lee and Julia E. Lee, the receipt whereof is hereby acknowledged, I Mrs. Ada Cornelison, has this day bargained and sold, and do by these presents grant, bargain, sell and convey to the said Virgil Lee and Julia E. Lee, their heirs and assigns, the following described real estate, situated, lying and being in the County of Morgan and State of Alabama, to-wit:
12 acres of land situated in the Southwest corner of the SE 1/4 of Section 5, Township 6, Range 4 West, being 15.81 1/4 chains East and West, and 7.58 1/4 chains North and South, less a strip along the West side belonging to the State Highway, the said property being the property that was bought by John Paige from Catherine Broadfoot in January, 1888,
together with all the improvements thereon.
"The grantor herein reserves to her self and her heirs one half of the oil and all minerals that may be discovered in said land.
"To have and to hold to Virgil Lee and Julia E. Lee, their heirs and assigns forever. And I hereby covenant with the said Virgil and Julia E. Lee, their heirs and assigns, and I am seized in fee of the aforegranted premises, and agree forever to defend the same from the lawful claims of all persons whomsoever.
"In Witness Whereof, I hereby set my hand and seal this 8th day of Feby. 1928.
"MRS. ADA CORNELISON (SEAL)"
By mesne conveyances the 12 acre tract came to complainants with the same reservation contained in their deed. Appellants are the heirs of Ada Cornelison, the original grantor whose deed contained the reservation. The appellees have been in possession of the surface of the property along with their predecessors in title since the deed in 1928. There have been no mining or oil operations on the land. There have been no separate assessments between the surface rights and the mineral rights and no one has been in actual possession of the property other than as to surface rights.
I. Citing such cases as Henry v. White, 257 Ala. 549, 60 So.2d 149; Hardee v. Hardee, 265 Ala. 669, 93 So.2d 127 and Section 14, Title 47, Code of 1940, the court held that where there is an inconsistency between the granting clause containing words of inheritance and statements in the habendum or clauses subsequent to the granting clause, the granting clause in the deed will prevail and the clause containing the reservation of mineral rights will be considered void.
We do not take this view of the situation. Considering the entire deed we believe that a clear intention appears in the deed for the grantor to reserve certain mineral rights in the property. This is true although the granting clause contains words of inheritance. Accordingly there is no necessity to invoke any arbitrary rules of construction.
We believe that this intention becomes more apparent when we consider that the reservation excepts oil or mineral interests. There is a clear difference between a grant of surface rights and a grant of mineral rights. "Minerals, coals and ores excepted from a grant remain in the grantor as before the grant. They are distinct and separate properties which may be conveyed separately from the surface." Thompson on Real Property, Volume 6, Section 3462, page 692. This court has expressly given effect to a reservation excepting oil or mineral interests. McCall v. Nettles, 251 Ala. 349, 37 So.2d 635.
We do not think that a general rule should be stated which must govern all cases, but that each case should be considered on its own merits. Considering mineral rights as separate and apart from surface rights we see no repugnancy between the causes in the deed now before us and so we will not resort to arbitrary rules of construction. Slaughter v. Hall, 201 Ala. 212, 77 So. 738; Sanford v. Alabama Power Co., 256 Ala. 280, 54 So.2d 562; McCall v. Nettles, supra.
II. This brings us to a consideration as to quantum of minerals reserved. The reservation is:
"The grantor herein reserves to her self and her heirs one half of the oil and all minerals that may be discovered in said land."
Without question one-half of the oil is reserved but is the mineral reservation one-half or all? It is generally recognized that oil is a mineral. Carter Oil Company v. Blair, 256 Ala. 650, 57 So.2d 64. But that is no reason why the parties may not draw a distinction between the two. Accordingly since the deed refers to oil and minerals, we think that a difference is indicated, which means that the reservation is to one-half of the oil and to all of the other minerals.
Reversed and remanded.
LIVINGSTON, C. J., and LAWSON and MERRILL, JJ., concur.