Giles H. GIBSON et al v. Nora Glasgow PICKETT et al
74-61
Supreme Court of Arkansas
July 22, 1974
Rehearing denied September 9, 1974
512 S.W. 2d 532
Although Act 19 was not involved in Williamson v. Williamson, 224 Ark. 141, 272 S.W. 2d 72 (1954), and the language used might be classified as dictum, this court there said it was plainly the intent of our statute (Act 99) to give to the estate as a whole the benefit of concessions made in the Congressional tax computation formula. This statement is certainly consistent with both the content and the title of Act 99. It is also significant that this court in Williamson emphasized the failure of Act 99 to carry forward exemptions and deductions granted by the act imposing the tax, as did the New York statute.
Since we disagree with the probate court‘s construction of the act, its judgment is reversed and the cause remanded for further proceedings consistent with this opinion.
Woodward & Kinard, Ltd., for appellees.
JOHN A. FOGLEMAN, Justice. In this “quiet title” action brought by appellees, there is no dispute about the facts. The lands involved are described as the SW 1/4 of SW 1/4 of Section 24, Township 19 South, Range 24 West in Lafayette County. The basic controversy turns upon the construction of a deed dated May 25, 1944, from Giles H. Gibson and wife to Oce S. Griffin. Appellees based their suit upon their contention that a mineral reservation therein was void because it was too indefinite and uncertain to be effective. On the other hand, appellants contended that the Gibsons reserved all the oil, gas and mineral rights they owned and that no mineral interest passed to Griffin by this deed. The chancellor held that the deed did reserve an undivided 1/2 interest which had not been severed from the surface but not a reversionary interest which the Gibsons owned in a 1/2 “term” mineral interest expiring in 1950 in the absence of production, conveyed by a prior owner in 1935. It had been stipulated that there had been no production prior to 1950. The chancery court held that Griffin owned the reversionary interest in 1945 when he conveyed to G. B. Pickett, the deceased father of appellees, reserving 1/2 of any mineral interest he (Griffin) owned, so that, when the term interest expired in 1950, a 1/2 mineral interest was owned by Griffin and Pickett equally.
Appellants assert that the chancellor erred in holding that Gibson reserved the 1/2 unsevered mineral interest but not the reversionary interest in the remaining 1/2 interest. Appellees contend that the reservation in the Gibson-Griffin deed should have been declared void for ambiguity and that the court erred in finding that this deed did not convey all mineral rights owned by Gibson. They say that, in any event, no more than 1/2 of the minerals were reserved.
It is essential to an understanding of the issues that the chain of title be set out. Insofar as pertinent, it is as follows:
J. R. Jester was the holder of the fee simple title to the W 1/2 SW 1/4 of Sec. 24.
3 June 1935, warranty deed from J. R. Jester and wife to First Congregational Church, conveying the W 1/2 SW 1/4 of Sec. 24, filed for record on Jan. 13, 1936.
11 Dec. 1935, instrument entitled “Sale of Mineral Rights” from J. R. Jester to Harry J. Naert, conveying 1/2 mineral interest in SW 1/4 of SW 1/4 having the following habendum clause, “To Have and To Hold, said described property unto said purchasers their heirs and assigns for a period of Fifteen Years (15) or as long thereafter as oil or gas are produced in paying quantities,” filed for record on Dec. 20, 1935.
4 June 1943, First Congregational Church to J. E. Searcy conveying the W 1/2 SW 1/4 of Sec. 24, containing the following warranty clause: “And First Congregational Church hereby covenants with the said J. E. Searcy that it will forever warrant and defend the title to said lands against all claims whatever, except as to any mineral rights which the corporation has no title or claim against and except as to rights of the parties in possession.”
7 Aug. 1943, special warranty deed from J. E. Searcy to Giles H. Gibson with warranty “against all claims or encumbrances done or suffered by us but against none other.”
25 May 1944, warranty deed from Giles H. Gibson to Oce. S. Griffin, conveying: “The West Half (W 1/2) of the Southwest Quarter (SW 1/4) of Section Twenty-four (24), Township Nineteen South (19S) Range Twenty-four West (24) containing in all 80 acres more or less, except a reservation of an undivided One-Half Interest in all Oil, Gas and Mineral Rights, including the Right of Ingress and Egress thereto (being One-Half of the Mineral Rights that were conveyed to the First Congregational Church in a Deed dated June 3rd 1935
16 July 1945, warranty deed from Oce S. Griffin to G. B. Pickett conveying “The Southwest Quarter (SW 1/4) of the Southwest Quarter (SW 1/4) of Section Twenty-four (24), Township Nineteen (19) South Range Twenty-four (24) West, containing forty (40) acres more or less. The Grantor hereby reserved one-half (1/2) of all Oil, Gas, and Mineral rights that is owned by him on this date; also it is understood, that there exist one or more reservations by previous grantor or grantors. It is intended that the grantee (G. B. Pickett) shall have one-half (1/2) of any and all Oil, Gas, and Mineral rights that is owned by the grantor (Oce S. Griffin) at the time of this sale, including the right of ingress and egress.”
The basic rule to be applied in the construction of deeds, as with other contracts, is to ascertain and give effect to the real intention of the parties, particularly of the grantor, as expressed by the language used when not contrary to settled principles of law and rules of property. Jenkins v. Simmons, 241 Ark. 242, 407 S.W. 2d 105 (1966), Dent v. Industrial Oil & Gas Co., 197 Ark. 95, 122 S.W. 2d 162 (1938); Chicago, R.I. & P. R. Co. v. Olson, 222 Ark. 828, 262 S.W. 2d 882 (1953); Coffelt v. Decatur School District, 212 Ark. 743, 208 S.W. 2d 1 (1948); McBride v. Conyers, 212 Ark. 1034, 208 S.W. 2d 1006 (1948); Desha v. Erwin, 168 Ark. 555, 270 S.W. 965 (1925). The courts will resort to rules of construction, as distinguished from rules of property, only when the meaning of the deed in question or the intention of the parties is ambiguous, uncertain or doubtful. Coffelt v. Decatur School District, supra; see also Jenkins v. Ellis, 111 Ark. 220, 163 S.W. 524 (1914); Beasley v. Shinn, 201 Ark. 31, 144 S.W. 2d 710 (1940); Davis v. Collins, 219 Ark. 948, 245 S.W. 2d 571 (1952); Doe v. Porter, 3 Ark. 18 (1840).
Keeping these well-established rules in mind, we turn to the instrument in question. No difficulty is apparent upon the face of the instrument itself. Yet, we are not only permitted, we are required to examine the instruments to which reference is made in the deed in question because the terms and conditions of those deeds were made a part of the deed to be construed. Doe v. Porter, 3 Ark. 18 (1840). See also International Graphics, Inc. v. Bryant, 252 Ark. 1297, 482 S.W. 2d 820 (1972); Jackson v. Lady, 140 Ark. 512, 216 S.W. 505 (1919); Snyder v. Bridewell, 167 Ark. 8, 267 S.W. 561 (1924); Dormon Farms Co. v. Stewart, 157 Ark. 194, 247 S.W. 778 (1923). When we do, it would appear at first blush that all the mineral rights were purportedly conveyed to the First Congregational Church on
If indeed the clause is ambiguous, as we find it to be, the courts must put themselves as nearly as possible in the position of the parties to the deed (particularly the grantor) and interpret the language in the light of attendant circumstances. Schnitt v. McKellar, supra; Wynn v. Sklar & Phillips Oil Co., supra; Schweitzer v. Crandell, 172 Ark. 667, 291 S.W. 68 (1927); Jackson v. Lady, supra; St. Louis San Francisco Ry. Co. v. White, 199 Ark. 56, 132 S.W. 2d 807 (1939). In this case, we can only do that by viewing the instruments in the chain of title because we have no other evidence before us. In endeavoring to ascertain the intention of the parties, we look not only to the deed but to the relations of the grantor to the property. Jackson v. Lady, supra; Holmes v. Countiss, 195 Ark. 1014, 115 S.W. 2d 553 (1938). At the time of the conveyance from Gibson to Griffin, Gibson owned 1/2 of the minerals in the W 1/2 SW 1/4 plus a reversionary interest in the remaining 1/2 in the SW 1/4 SW 1/4. The warranty clause in the deed excepted mineral rights, so it cannot be presumed that there was any intention to convey all the mineral rights not reserved. The habendum clause ex-
Appellants contend that Gibson intended to reserve all the mineral rights he owned and that the explanatory parenthetical clause was added to make this intention clear. They say the description in the deed should be read as if it excepted an undivided one-half interest in all oil, gas and mineral rights, including the right of ingress and egress thereto, being 1/2 or the mineral rights that were conveyed to the First Congregational Church of 1/2 mineral interest plus the reversionary interest in the 1/2 mineral interest sold to Naert, which is reserved by the grantor herein. Their version eliminates the parentheses appearing in the deed. It also takes the parenthetical clause to refer to the interest effectively conveyed instead of that purportedly conveyed to the church. The latter possible construction of that clause would be consistent with the remainder of the exception and reservation, the first two words of the parenthetical clause itself and the chancellor‘s holding. Appellants contend that any construction other than that suggested by them violates the rule that no part of a deed will be rejected except when completely irreconcilable with other clauses of the deed. See Wynn v. Sklar & Phillips Oil Co., supra. It is the duty of the courts to give effect to every word, sentence and provision of a deed, where possible to do so and give effect to the intention of the parties. Jackson v. Lady, supra; Doe v. Porter, 3 Ark. 18 (1840). When a deed is ambiguous, however, the primary rule of construction comes into play, i.e., that all parts of the deed should be harmonized insofar as possible. Jackson v. Lady, supra; Holmes v. Countiss, supra;
If we had not abandoned the rule of construction that, in case of conflict between the granting and the habendum clauses, the granting clause governs we might say that the matter was settled by construing the parenthetical clause to be consistent with a reservation of only 1/2 of the mineral interests and not the reversionary interest. But this is no longer the rule. We must, if possible, reconcile and harmonize the two clauses, along with any other clauses of the instrument. See Weir v. Brigham, 218 Ark. 354, 236 S.W. 2d 435 (1951); Carter Oil Co. v. Weil, supra; Beasley v. Shinn, supra. And this has always been the rule unless the language of the granting clause was so plain that it could not be misunderstood and the two clauses were clearly and irreconcilably repugnant. See Jackson v. Lady, supra; Kenner v. State, 121 Ark. 95, 180 S.W. 492 (1915); McDill v. Meyer, 94 Ark. 615, 128 S.W. 364 (1910). The wording of the warranty clause is such that Gibson gave no warranty as to any mineral rights. The habendum clause clearly indicates that Griffin is to have the fee simple title to the lands except for mineral rights mentioned in the deed to the church, i.e., mineral rights to which it had no claim. It has long been recognized that where it appears from the whole conveyance and attendant circumstances that the grantor intended to enlarge, restrict or repugn the conveying clause by the habendum, the latter must control, as an addendum or proviso to the former. Luther v. Patman, supra. Since it is the office of the habendum clause to explain or define the extent of the grant, it is not to be rejected unless there is a clear and irreconcilable repugnance between the estate granted and that limited in the habendum. McDill v. Meyer, supra. And the words of the habendum will prevail if they represent the true intent of the grantor as expressed by the deed as a whole. Weatherly v. Purcell, 217 Ark. 908, 234 S.W. 2d 32 (1950).
Giving the parenthetical clause the meaning ascribed to it by appellants would make it harmonious with the haben-
On cross-appeal, appellees contend that the court erred in not granting a default judgment against M. M. Valerius Royalty Corporation, the grantee in a deed by J. F. Warmack (a grantee of Gibson in a 1969 mineral deed) conveying a 1/8 mineral interest in the W 1/2 SW 1/4 of Sec. 24. In their petition to quiet title, appellees claimed ownership of W 1/2 interest in oil, gas and minerals in the SW 1/4 SW 1/4, subject to an oil and gas lease owned by M. M. Valerius Oil Royalty Corporation. This corporation was named as a defendant and served by registered letter dated July 20, 1972 and received by the corporation on July 21, 1972, apparently pursuant to
Appellees also contend that the chancellor erred in refusing to grant their motion for summary judgment. A sufficient answer to this contention is that no appeal lies from the denial of a summary judgment. Bawcom v. Allis-Chalmers Credit Corporation, 256 Ark. 569, 508 S.W. 2d 741 (1974).
Appellees also contend that the reservation of mineral rights in the Gibson deed is so ambiguous that it is void, relying upon Parker v. Cherry, 209 Ark. 907, 193 S.W. 2d 127 (1946). Here the question is not whether the reservation was sufficiently described to be effective. It is whether the reservation was of only 1/2 of the mineral interest or all of the mineral interest owned by grantee Gibson. A description will not be held void for uncertainty if by any reasonable construction it may be made available and if the descriptive words furnish a key to
Nor do we find merit in appellees’ contention that this is essentially an action for reformation, and as such, is at least tardily sought. In this respect, the case is not essentially different from Stewart v. Warren, 202 Ark. 873, 153 S.W. 2d 545 (1941). There we held that a limitation on a grant of a mineral interest expressed only in the habendum clause of the deed in question should be given effect under the rule of Beasley v. Shinn, supra, that the intention of the parties should be gathered from the entire document rather than from the granting clause. We held that the doctrine of laches was inapplicable for two reasons. First, we affirmed the decree of the trial court which had actually refused reformation but had nevertheless upheld the limitation by considering the face of the deed in determining the intention of the parties. And then, we said, it was not the duty of the parties claiming the benefit of the limitation to seek reformation until the limitation upon which they relied was questioned. We may say the same about this case as to this contention of appellees.
The decree is reversed on direct appeal and affirmed on cross-appeal and the cause is remanded for entry of a decree consistent with this opinion.
GEORGE ROSE SMITH and HOLT, JJ., dissent.
GEORGE ROSE SMITH, Justice, dissenting. Although the various rules of construction relied upon by the majority are designed to give effect to the intention of the parties, it does not seem to me that they accomplish that purpose in this case. The pivotal 1944 deed from the Gibsons to Griffin was obviously not drawn by a lawyer. It is impossible to be certain what was intended by the layman who prepared that deed, but I think the chancellor‘s interpretation of it is preferable to that adopted by the majority.
The Gibsons then owned half the minerals in the 80-acre tract that was conveyed. They also owned a reversionary interest in the other half of the minerals in the south forty acres,
The clearest language in the Gibson-Griffin deed, as far as the minerals are concerned, is the following: “... except a reservation of an undivided One-Half Interest in all Oil, Gas and Mineral Rights ... which is reserved by the Grantor herein.” Even for a layman it would have been a simple matter to reserve the other one-half interest in the minerals in the south forty if such a reservation had been intended. Absent such language, I am not convinced that the draftsman of the deed used the other highly ambiguous clauses as a roundabout way of accomplishing that result. Consequently I would affirm the decree in its entirety.
HOLT, J., joins in this dissent.
JOHN A. FOGLEMAN
Justice