Nova Roush BURNELL, Appellant (Plaintiff below) v. Loretta ROUSH, Appellee (Defendant below), and the Texas Company, a corporation, (Defendant below)
No. 3405
Supreme Court of Wyoming
Aug. 12, 1965
404 P.2d 836
There are thus numerous reasons why the trial court did not abuse its discretion in dismissing the complaint and thereby refusing to enter a declaratory judgment on the matters asserted in the complaint. Plaintiff not having met its burden of showing an abuse of discretion, the trial court‘s order of dismissal must be affirmed.
Affirmed.
GRAY, J., not participating.
MCINTYRE, Justice (concurring).
My personal opinion is that an action for declaratory judgment is a proper remedy for a case of this kind, and that plaintiff‘s complaint should not have been dismissed without a hearing on the issues asserted. However, I must agree courts are allowed a certain latitude in denying the remedy of declaratory judgment when it appears a more appropriate remedy is available.
No purpose would be served by stating divergent views as to which of the remedies available for an action of this kind would be more appropriate. Chief Justice Parker has stated in his opinion that, among other available remedies, a mandatory injunction against the state veterinarian would accomplish the announced purpose of plaintiff, if the exact violation is stated and the persons or agencies said to be violators are joined.
This pronouncement gives the Wyoming Humane Society substantially what it has sought in its appeal in the instant case. For practical purposes, the initiation of such an action would be equivalent to a reversal in the present case, since a reversal would still require this case to be remanded for trial on the issues asserted. Also, if persons or agencies said to be violators are joined, in the event of a suit for mandatory injunction, it may avoid a question as to whether all necessary parties are before the court.
Henry A. Burgess, David B. Kennedy, Sheridan, for appellee.
Before PARKER, C. J., and HARNSBERGER, GRAY and MCINTYRE, JJ.
Mr. Justice GRAY delivered the opinion of the court.
Claiming to be the owner of an undivided one-fourth interest to the oil, gas, and other minerals in the E1/2 of Section 20, Township 43 North, Range 74 West of the 6th Principal Meridian of Campbell County, Wyoming, as a tenant in common, the plaintiff Nova Roush Burnell commenced an action seeking declaratory relief from the adverse claim of the defendant Loretta Roush (hereinafter referred to as defendant) to the property above described. The Texas Company, a corporation, was also named as a party defendant, but its interest, if any, so far as this appeal is concerned is not before us. From a judgment dismissing the complaint plaintiff appeals.
Substantially all of the facts giving rise to the dispute were stipulated. The stipulation, together with the admissions in the pleadings, discloses that in the year 1939 plaintiff was the wife of one Loy Roush. At that time Loy Roush was the patentee and owner of a farm and ranch consisting of some 640 acres of land which embraced the premises above described. The couple made their home upon the farm, and it is conceded that plaintiff had a right of homestead therein. On December 20, 1939, Loy Roush and plaintiff, as husband and wife and as grantors, executed a deed conveying all of the farm premises to August and Leulla Laur for the sum of $2,850. However, contained in the body of the deed immediately following the legal description of the premises conveyed is a proviso:
“* * * except, that Grantors reserve to themselves one-half of all
oil, gas and mineral rights in and to the above described lands except as to those lands on which such rights are reserved in the original patents.”
It is that proviso which underlies the dispute here for the reason that by virtue of the patent issued by the United States to the E 1/2 of Section 20 above described Loy Roush became the owner of all the minerals therein contained except coal. In executing the deed the grantors also duly released and waived all rights under and by virtue of the homestead exemption laws of Wyoming.
Subsequently, in the year 1941, plaintiff and Loy Roush were divorced and thereafter plaintiff married one Earl H. Burnell, and Loy Roush married the defendant. In 1963 Loy Roush died, and defendant as his surviving spouse and sole heir at law asserts ownership of the entire one-half interest in and to the oil, gas, and other minerals except coal in the E 1/2 of said Section 20.
The ultimate issue submitted to the trial court for determination by the agreement of the parties was:
“* * * whether the Plaintiff, Nova Roush Burnell, has any interest in and to the minerals reserved under said Warranty Deed, she contending that she is the owner as a tenant in common of an undivided one-fourth interest, and the Defendant contending that all of the minerals, except the coal, were reserved by said Warranty Deed unto Loy Roush.”
That is also the ultimate question presented here, but as is quite apparent the simple statement does not disclose certain subsidiary matters that form the crux of the controversy. Brief reference to those matters is essential to a proper understanding of the case.
Summarizing the agreed facts, Loy Roush, the then husband of plaintiff, was the sole owner of the land and minerals above described, and with the exception of one-half of the minerals had made sale of the premises to August and Leulla Laur. The premises being a part of the homestead of the Roushes, it was necessary in order to validate the conveyance to the Laurs under the homestead laws of Wyoming for plaintiff to “voluntarily sign and acknowledge” the deed.
We have no special statute to guide us in the matter, and as a result the dispute centers around a general rule of the common law that has its root in the feudal system. Succinctly stated, the rule is:
“No interest or estate in land may be created in favor of a stranger to the title by means of a reservation or exception in the conveyance thereof.” 6 Okl.L.Rev. 131 (1953).
Whether that general rule in its literal and undiluted form is the law of this state under
However, before we get too far afield from the precise question before us, we should mention that plaintiff does not question the existence of the rule. While we are referred by plaintiff to the rationale of decisions from other jurisdictions laying down what appears to be a majority view limiting application of the rule in that it will not be permitted to defeat a reservation or exception of a life estate for the benefit of the spouse of the owner, Saunders v. Saunders, 373 Ill. 302, 26 N.E.2d 126, 129, 129 A.L.R. 306, and Glasgow v. Glasgow, 221 S.C. 322, 70 S.E.2d 432, 435-436, plaintiff does not rest her claim upon such limitation. No doubt that was for the obvious reason that she is not here claiming a life estate but is claiming outright ownership of an interest in the minerals as a tenant in common. Plaintiff‘s contention is that by virtue of the homestead laws of Wyoming she had at the time of the grant to the Laurs a vested interest tantamount to co-ownership in the land and minerals owned by Loy Roush, and as a consequence was not a “stranger to the title” and under any circumstance as a grantor was not a “stranger to the deed” as some authorities put the rule. Under those circumstances we are not called upon to choose between divergent views with respect to the common-law rule, which we might otherwise be required to do. Fuchs v. Goe, 62 Wyo. 134, 163 P.2d 783, 792, 166 A.L.R. 1329, and In re Smith‘s Estate, 55 Wyo. 181, 97 P.2d 677, 681. The parties have proceeded upon the basis that the rule is and was in effect. That was the theory upon which the case was presented to the trial court, and because we are dealing with property rights we think it important that we adhere to the general rule that the parties are bound here by the theory adopted below. Jones v. Kepford, 17 Wyo. 468, 100 P. 923, 925; Dame v. Mileski, 80 Wyo. 156, 340 P.2d 205, 209.
In approaching the question of whether or not plaintiff sustained her position that the common-law rule was not applicable for the reasons stated, we think we should first note the distinction between a “reservation” in a deed and an “exception” to a deed. In most cases the distinction is not important, but we think it has significance here because of the nature of plaintiff‘s claim. She argues that she is vested with title and yet it is the rule that “A reservation neither creates title nor enlarges the grantor‘s vested rights but merely reserves in the grantor a specific interest.” 6 Thompson on Real Property, § 3090, p. 776 (1962 Repl.). Concerning an “exception” the same authority states in § 3091, p. 787:
“An exception by a deed in favor of a stranger thereto cannot operate as a conveyance of the accepted land to him, though effective to prevent title thereto from passing to the grantee, whose acceptance of the deed estops him from asserting title to the accepted land. But an effective exception may be made by deed in favor of a third person not a party thereto in recognition and confirmation of a right already existing in him. * * *”
The test of whether the language of a deed is a “reservation” or an “exception” is succinctly stated in 1, Williams and Meyers, Oil and Gas Law, § 310, p. 557 (1964):
“Historically, differences existed between a reservation and an exception. According to Lord Coke, an exception saves back part of the thing being granted; to be excepted the thing must be in esse. A reservation creates a new right, a thing not in esse. * * *”
Thus, treating the proviso as an exception, we first turn to plaintiff‘s contention that as a named grantor she could not possibly be a “stranger to the deed.” Plaintiff cites us to no authority and we have found none wherein an interest has been created by an exception for the benefit of a non-owner spouse for the sole reason that the spouse was named as a grantor. Where limitations were placed upon operation of the rule, other circumstances were present. No doubt the explanation offered by the Supreme Court of Missouri in Lemon v. Lemon, 273 Mo. 484, 201 S.W. 103, 106, furnishes the answer. There the court said:
“* * * When the books and the cases say that a reservation in a grant in order to be valid must be for the benefit of the grantor, or of some one of the grantors, and that a reservation cannot be made for the benefit of a stranger to the deed, it is meant and the language used connotes that the reservation must be for the benefit of that grantor, who, having an interest in the thing granted, may logically reserve from the operation of the grant a part of the estate or thing granted, or some right growing out of or appurtenant thereto. * * *”
Furthermore, as related to the acquisition of an interest in the minerals in favor of a spouse, we find two jurisdictions holding that the non-owner spouse acquired no interest even though named as a grantor in the deed. Leidig v. Hoopes, Okl., 288 P.2d 402, 403, 404; McKee v. Douglas, Tex. Civ. App., Ref. N.R.E., 362 S.W.2d 870, 875-876. For other cases in point see Mott v. Nardo, 73 Cal.App.2d 159, 166 P.2d 37, 39; Flynn v. Fike, 291 Ky. 316, 164 S.W.2d 470, 472, 473, overruled an other grounds in Townsend v. Cable, Ky., 378 S.W.2d 806. Absent any authority to the contrary we hold that this facet of plaintiff‘s contention is without merit.
With respect to plaintiff‘s contention that she was not a “stranger to the title” we are of the view that plaintiff assumes a false premise when it is argued that her homestead right at the time of the conveyance was in fact a vested interest in the lands and minerals. We did not so hold in the case of Jones v. Kepford, supra, as suggested. We simply stated there that the right of a statutory homestead which accrues to a husband was also for the benefit of his wife and “continues as a vested right until abandoned or relinquished, or until extinguished” by other means. Nothing was said which would indicate that such homestead was a vested interest in the land, and furthermore we have held to the contrary. In Stolldorf v. Stolldorf, Wyo., 384 P.2d 969, 971, we stated:
“Concerning alienation of the homestead, we have heretofore recognized that the requirements imposed are simply limitations upon the power of the owner to sell, transfer or encumber the property involved. Delfelder v. Teton Land & Investment Co., supra [46 Wyo. 142, 24 P.2d 702, 717, rehearing denied 26 P.2d 153.]. * * *”
The conclusion is inescapable that the exception here did not recognize or confirm any title in plaintiff to an undivided one-fourth of the mineral fee.
What other right, then, did plaintiff have that was recognized and confirmed
Affirmed.
HARNSBERGER, Justice (dissenting).
There is no question but that at the time the subject conveyance was executed Roush was the sole owner of the property, including its minerals with the exception of coal.
There is no question but that Mrs. Burnell had nothing more than a homestead right in that property as the wife of Roush at the time the subject conveyance was made.
There is no question but that this right of homestead might be lost through divorce or by death.
There is no question but that during his marriage to Mrs. Burnell Roush could not alienate the property or any part thereof without Mrs. Burnell having joined to release her then homestead right.
What then motivated Mrs. Burnell to release this valuable homestead right? What was the intention of the parties at the time the conveyance was executed? These answers are to be found within the four corners of that instrument alone.
At the time of the execution of the conveyance, it was not known whether the retained interest in minerals was of any value at all, yet Mrs. Burnell gave up a valuable right in order to obtain a share in them.
Although Mrs. Burnell had no legal title to the property, the parties elected to name her as a grantor as well as having her release her homestead interest in the property. Furthermore, the clause excepting from the operation of the deed or reserving therefrom a one-half interest in the minerals, other than coal, recognized Mrs. Burnell as a grantor in two separate places, first by expressly naming her as such and second by using the word “grantors” when providing for the retention of a one-half interest in the minerals other than coal. These wordings in the deed clearly indicate that it was the understanding and intention of the parties, at the time Mrs. Burnell released her valuable homestead right, that she was to have in exchange therefor a share of that which was excluded from the conveyance. In the absence of other specification, the portion of mineral right retained must be taken to be a share equal to that of her then husband. When divorce terminated the marriage, her share became entirely separate from that of her former husband and thereafter continued to be her sole and separate property.
The judgment of the lower court should be reversed and title to one-half of the retained interest in the minerals within the lands should be quieted.