30 So. 2d 516 | Miss. | 1947
Lead Opinion
In October 1932 W.J. Dantzler conveyed to Nelson Simmons the N 1/2 of NW 1/4 of Section 1, Township 1, Range 13, with a reservation therein that "in the event of any minerals, oil or gas being found in the bounds of the land we are to share the profits equally." Dantzler afterwards conveyed or assigned a one half interest in this reservation to G.G. Stanford. On October 21, 1937, Simmons executed the usual mineral lease to the appellant, authorizing it to explore for, bring to the surface, and utilize any oil that might be found in the land, for which privilege it agreed to deliver to Simmons one-eighth part of the oil produced by it from the land. It succeeded in producing oil from the land at an expense of something over $60,000 and had in its hands unpaid royalties due under the lease amounting to something over $3,600. This it paid into the registry of the Court below under a bill of interpleader, to which a number of persons were defendants who are said to claim a interest therein, prayed that they be cited to appear and assert their claims, if any, to this money and that the appellant be relieved from further responsibility there as to.
Dantzler having become non compos mentis, his guardian, McCormick, Stanford, and other defendants, filed cross-bills against the appellant in which they claimed that by the reservation in this deed, Dantzler reserved to himself a half interest in the oil in the land in place, and asserted a right in Dantzler and Stanford to the value of one-half of the oil produced by the appellant and prayed for an *617 accounting therefor. Demurrers by the appellant to these cross-bills were overruled, the Court thereby holding that the reservation in Dantzler's deed to Simmons was of a one-half interest in the oil in place. The Gulf Refining Company, by permission of the Court below, brought the case to this Court.
This State is a member of that group of states which hold that minerals in place may be owned separately from the ownership of the soil in which they are embedded. Reservations somewhat like the one here under consideration have been considered in decisions by the courts of some of the states belonging to this group, but the conflict and confusion therein is such that little help will be gained by resorting thereto; so we will proceed at once to construe this contract as we would any other submitted to us for that purpose.
"The word `profit' is elastic, ambiguous and often properly used in more than one sense." 50 C.J. 643. Its meaning in a written instrument is governed by the intention of the parties appearing therein and any accurate definition of it must always include the element of gain. When this deed was executed it was not known whether there was any oil in this land; its presence therein being thereafter discovered. While remaining in the land oil is of no use to any one and no profit or gain can be derived therefrom other than its sale in place, except in so far as the value of the land would be increased thereby. It is clearly not the intention of the parties to this deed that the grantor therein should share in any increased value of the land and the sale of oil in place is unusual, and, if made, must be for a purely speculative price. The intention of the parties to this deed, therefore, must have been to share equally in the gain from or use of the oil after it has been brought to the surface. The finding of the oil in land and bringing it to the surface is quite expensive, the incurring of which — ex vi termini — is included here in the word profits. The reservation does not provide how this expense is to be met, but it is common *618 knowledge that the landowner does not, and usually could not, himself provide the money therefor, the usual and almost universal method for finding oil and bringing it to the surface being for the landowner to authorize a person or corporation engaged in such business to find the oil and bring it to the surface, appropriating all that he produces thereby to himself except an agreed portion thereof reserved by an to be delivered, or its value paid, to the landowner and usually designated as a royalty. This is exactly what occurred here and was therefore within the contemplation of the reservation in the deed and since the appellees do not challenge the amount of the royalty here involved, they have no complaint thereat and Dantzler and Stanford are entitled only to receive one-fourth each thereof.
The appellees invoke, and rest their case on, that line of decisions based on Lord Coke's oft quoted dictum in Coke on Lyttleton, Book 2, 4b, holding that a grant in terms of the "profits" of land will pass the land itself. But we have no such simple case here, but one wherein a grantor reserved from or lifted out of his grant an element of the property granted; thereby creating a new right in himself out of the subject of the grant, which reservation must be "construed most strongly against the grantor and in favor of the grantee," 26 C.J.S., Deeds, Sec. 140b, even without which it is clear that the word "profits" was not here used as the equivalent of the property from which the profits were to come. Cf. Armstrong v. Bell,
Reversed and remanded.
Dissenting Opinion
In my opinion the clause "But in event of any mineral, oil or gas being found in the bounds of the land we are to share the profits equally" excepted from the deed and *619 retained in the grantor one-half of the minerals, oil and gas in place. My reasons are these:
1. As stated in the majority opinion, it is settled in Mississippi that the surface and the minerals thereunder, including oil and gas, may be separately and concurrently owned. Moss v. Jourdan,
2. For a long time it has been settled in the law of real property that a conveyance of the profits of land is a conveyance of the land itself, "for what is the land but the profits thereof?" Coke, Lyttleton, 4(b) and (c). Hundreds of cases and texts might be cited to support that principle. I will refer to only a few of them.
In Weakland et al. v. Cunningham et al., 7 A. 148, 3 Sad., Pa., 519, the Court held that "The following reservation in a deed: `Excepting the profits of one-half of all the stone coal, and of all other kinds of mineral, which may be discovered at any time hereafter,' — is a reservation of the corpus of all such coal and mineral in place."
Caldwell v. Fulton,
The Supreme Court of the United States, in Green v. Biddle, 8 Wheat. 1, 5 L. Ed. 547, 566, said, "A right to land essentially implies a right to the profits accruing *620
from it, since, without the latter, the former can be of no value. Thus, a devise of the profits of land, or even a grant of them, will pass a right to the land itself." To the same effect is Pollock v. Farmers' Loan Trust Co. et al.,
In Ball v. Hancock's Adm'r,
In Baker v. Scott,
In Toothman v. Courtney,
In 4 Tiffany on Real Property, 3d Ed. 1939, Sec. 990, page 91, it is said, "And a conveyance in terms of the profits of land will pass the land itself, `for what is the land but the profits thereof' . . ."
In 1 Thompson on Real Property, Perm. Ed. 1939, Sec. 91, p. 115, it is said, "An exception of one half of the profits of all coal and other minerals which may be found in the land is held to be an exception of the profits of all such coal and minerals in place."
And, finally on this question, this Court, in Merrill Eng. Co. v. Capital National Bank,
It might be noted, in this connection, that the word "profits" is a broader term than rents or income; it includes rents and income; the use of that word embraces rents, income and issues growing out of land.
3. The case of McNeese v. Renner,
4. It will be noted further the parties provided they would share "equally" in the profits from the minerals. That means their interests were to be equal and alike — "in an equal manner or degree; in equal share; with equal and impartial justice; alike; evenly." Webster's International Dictionary, p. 863. Now, they cannot share equally unless they own an equal share in place, with equal rights and powers. Here the grantee has made a lease on such terms as he desired. He has received the bonus and rents, yet the contention is the owner of the equal share is to receive only his part of the royalties. Now, profits and royalties are not synonymous terms. Royalties come into being only after oil has been discovered and brought to the surface. Profits include all income and benefits from the ownership of the minerals if known to exist and the right thereto if the existence be unknown. The construction announced in the majority opinion places one equal owner largely at the mercy of the other. The grantee has the sole right and power to make a lease, on such terms as he thinks to his best interest, fixing, at his pleasure, the amount of royalty the grantor is to receive. Conceivably, the grantee might reduce the royalty to the grantor by increasing the bonus and rentals to himself. The grantor has no "profit" unless oil is actually discovered and brought to the surface, regardless how much money might be paid in the hope of such discovery. It is likely that as much money has been paid in Mississippi for rentals and bonuses as has been paid in royalties. The deed stipulates the parties are to "share the profits equally." That cannot be done where one party is largely at the mercy of the other.
While only oil is involved here, suppose there are other minerals, such as iron, ore, coal or zinc, yet the grantee *623 does not think well of exploring for them. Suppose the grantee determines he does not want to explore for minerals and refuses to contract for, or permit explorations, for that purpose. What could the grantor do? The grantor, under the deed, is to share all of these equally, yet he is helpless to realize any income from his property. The parties could hardly have intended that.
5. Some stress has been laid upon the construction to be given a reservation as distinguished from an exception, the contention being the clause under consideration is a reservation. In my opinion it may, with equal reason, be designated an exception. The entire clause is preceded by the word "but," which indicates that what follows is an exception to what preceded that word. "It has been said that the word indicates that what follows is an exception to that which has gone before . . ." 12 C.J.S., page 858. It is noted the same word was used in Moss v. Jourdan, supra. However, the discussion is largely academic. While in the long past considerable importance was attached to these distinctions, they are of little practical importance now. In Cook v. Farley,
Griffith, J., concurs in this dissent. *624