141 S.E. 521 | W. Va. | 1928
G. W. Fitzwater was the owner at one time of a tract of 83 acres in fee in Clay county. In 1900 he executed a lease for the oil and gas on said tract to O. D. Harrington upon the consideration that he was to receive one-eighth of the oil extracted and $50.00 per annum for each producing gas well. On the 14th day of February, 1901, he and his wife executed a writing, which, aside from the recital of consideration, description of the premises, etc., is as follows:
"THIS DEED made this 14 day of Feby., 1901, by and between George W. Fitzwater and M. J. Fitzwater, his wife, party of the first part, and Jno. W. Leonard P. M. Summers, party of the second part, witnesseth:
"* * * the said party of the first part grants unto the said party of the second part a one undivided sixteenth interest in and to all the oil in and under that certain tract of land hereinafter described, as well as the one undivided half interest in and to the royalty reserved, or to be reserved, in any gas well that may be drilled on said tract of land. It being the true intention of the grantor herein to convey to the said party of the second *71 part the one-half of the one-eighth of the oil reserved, or to be reserved, in any oil or gas lease that has been executed, and which may be executed on said tract of land, as well as the undivided half interest in to the royalty reserved, or to be reserved in any such lease, for each and every gas well to be drilled on said tract. * * * The party of the first part will warrant generally the property hereby conveyed.
"Witness the following signatures and seals," etc.
This writing was placed on record in Clay county on the 15th day of February, 1901. The clerk in making the record omitted therefrom the words, "and which may be executed", appearing in the above recital. Three years later G. W. Fitzwater executed a deed to John W. Fitzwater purporting to convey the entire estate in 72 acres of the 83-acre tract. In 1906 John W. Fitzwater granted to Hansford Reed all the oil and gas on the 72 acres. A lease was executed by the heirs of Hansford Reed, deceased, to the United Fuel Gas Company, dated May 22, 1915. In 1926 the writing from G. W. Fitzwater to Leonard and Summers was again recorded.
Suit was brought by three of the heirs of Hansford Reed and parties claiming under a fourth to have cancelled, as a cloud on their title, the writing to Leonard and Summers. The wife and children, heirs at law of Leonard, together with Summers, J. B. Lohan, D. R. Carnes and L. E. Carnes (the latter two also having a claim under plaintiffs) were made defendants. The United Fuel Gas Company, South Penn Oil Company and the Eureka Pipe Line Company, while being joined as defendants, are only nominal parties to the suit. A demurrer to the bill was interposed, and the chancellor sustained the demurrer. From this ruling the plaintiffs appeal.
Both plaintiffs and defendants agree that the whole case hinges on the writing from Geo. W. Fitzwater and wife to John W. Leonard and P. M. Summers. It is the contention of the plaintiffs that Summers and Leonard acquired no interest by said writing in either the oil or gas in place; that it *72 created but a personal obligation on the part of the grantors therein to deliver to Summers and Leonard one-sixteenth of the oil produced from said tract of land and one-half of any gas well rentals arising therefrom; and that it is not a covenant running with the land binding on the successors in title of G. W. Fitzwater. On the other hand, the defendants maintain that the said writing granted in effect one-half interest in the oil and gas in place. Thus the issue is sharply drawn.
It may be noted that the writing is in the form of the ordinary deed. The parties to the same designated it a deed. The word "grant", a generic term applicable to all transfers of real property, is used. We have held that deeds generally require the word "grant" or some technical words suitable to the character of the conveyance. Uhl v. Ohio River RailroadCo.,
In this clause there is expressly granted "one undivided sixteenth interest in and to all the oil in and under" said tract of land. Standing alone it seems plain that the grantors conveyed one-sixteenth of the oil in place. This is followed with a grant of "an undivided half interest in and to the royalty reserved, or to be reserved in any gas well that may be drilled in said tract of land". Thus we have granted, so far, one-sixteenth of the oil and one-half of the gas each in place — a part of the realty. Not content, however, the *73
grantors explained the grant as follows: "It being the true intention of the grantor herein to convey to the said party of the second part the one-half of the one-eighth of the oil reserved, or to be reserved, in any oil or gas lease that has been executed, and which may be executed on said tract of land, as well as the undivided half interest in to the royalty reserved, or to be reserved in any such lease, for each and every gas well to be drilled on said tract." Construing these words in the light of the fact that there existed on said premises a lease for oil and gas, providing royalties to the grantors for the use of the land, one-eighth of the oil delivered in the pipe-line and $50.00 for each gas well drilled on the premises, it is plain by this interpretive clause that the grantees were to have one-half of the one-eighth (royalty) oil and one-half of the gas rentals, not only under the existing lease, but under any lease thereafter to be executed. In the case of Paxton v. Benedum-Trees Oil Co.,
The plaintiffs further contend that they are bound by the Leonard and Summers deed only as originally recorded. In this first recordation the clerk inadvertently omitted from the record the words "and which may be executed". Does such omission materially change the effect of the deed and the interest conveyed? There is left in the granting clause the words "or to be reserved", thus indicating clearly that the parties to the instrument recognized that other leases might be thereafter executed. Then it would seem that, as regards constructive notice, the deed as recorded is sufficient. The record shows that Hansford Reed and wife (under whom the plaintiffs claim), in a lease to Summers in 1907, was careful to except from its operation "any royalty or interest in said oil that may have been heretofore sold, reserved, or conveyed by said lessor or their predecessors in title". If J. W. Fitzwater or Hansford Reed knew of the existence of the Summers-Leonard deed at the time they acquired their deeds, then it is immaterial whether the former deed was or was not of record. This bill makes no averment to the contrary.Abney v. Lumber Company,
The conclusions at which we have arrived on the questions already considered, render other assignments of error entirely immaterial, and dispenses with the necessity of any consideration of them upon this appeal.
*76Affirmed.