30 N.E.2d 24 | Ill. | 1940
Lead Opinion
The Magnolia Petroleum Company, Oliver Francis and Louise Francis, his wife, hereinafter called plaintiffs, by their amended and supplemental complaint filed in the circuit court of Washington county, sought to quiet title in Oliver Francis to a twelve-foot strip of land, and to remove as a cloud the asserted interests of defendants H.A. Hamilton, as lessee, and C.E. West, Irven Hale, and their wives, and R.J. Evans, Jr., as assignees, under a lease from the remaining defendants, who are the heirs, and their spouses, of August Wiese. Upon motion of defendants, a decree was entered at the close of plaintiffs' evidence, dismissing the amended and supplemental complaint for want of equity. Plaintiffs have appealed directly to this court, a freehold being involved.
The facts appear in a stipulation of the parties and in the evidence, both oral and documentary, offered in behalf of plaintiffs. September 9, 1909, Bettie Francis, a widow, owned a tract of eighty acres in Washington county. Before defendants objected to his competency, under section 2 of the Evidence act, (Ill. Rev. Stat. 1939, chap. 51, sec. 2, p. 1636,) Oliver Francis, son of Bettie Francis, testified that August Wiese, owning twenty acres immediately to the east, had first rented, then, without a lease, used the Francis property as a means of access to a road running through it, and that after he had failed to obtain another outlet, Bettie Francis executed a deed, on the day named, covering the controverted strip along the north end of her tract between the road and his land, and reciting that she did "convey and warrant" to him "the following described real estate, to-wit: Beginning on the north line of the south half of the southwest quarter of section fifteen (15) township three (3) south and range three (3) west of the 3rd P.M., at a point where the Oakdale road intersects the Nashville and Pinckneyville road as now located thence east on the quarter sec. *519 line to the northeast corner of said south half of the southwest quarter th. south twelve (12) feet, th. west to the Nashville and Pinckneyville road to be used for road purpose." It is to be noted that this description does not close. Barney Liszewski, a neighbor of Oliver Francis, testified as had the latter, whose testimony on these facts was held inadmissible as to the heirs, that this strip was in part covered with timber and brush, but that Wiese, until his death intestate, December 29, 1925, and his heirs thereafter, "would go along" its clear portions and the adjoining parts of the eighty acres, and that the strip had never been cultivated.
July 27, 1922, Bettie Francis conveyed the entire eighty acres, not excluding this strip, to Oliver Francis, who, July 31, 1936, included the tract with other parcels in an oil and gas lease to P.E. Haralson. Subsequently, the latter assigned the lease to the Magnolia Petroleum Company, and eight wells, which defendants assert are not on the disputed strip, had been completed at the time of the trial. The heirs of Wiese, February 15, 1938, executed a lease of other lands in section 15 to T.R. May, which recited that all lands of the grantors in the section were covered. January 26, 1939, the heirs executed an oil and gas lease of the strip to H.A. Hamilton, who shortly thereafter obtained, as an express aid in drilling oil under this lease, another lease of the adjoining land from Francis, and on February 14 and April 4, 1939, assigned various interests in the first lease. Hamilton, according to the testimony of Francis, stated that, although he expected the Magnolia Petroleum Company might stop him, he intended to attempt drilling, and defendants, in their answer, asserted that one well was in production. An oil and gas lease of the strip, from Francis to Howard L. Martin, dated March 24, 1939, is not in controversy. Tax records in evidence show payment by Oliver Francis of all taxes assessed against the entire eighty acres from 1922 to 1937. *520
Inventories filed in the estates of August Wiese, Jr., and Henry Wiese, deceased, and Carl Wiese, a minor, heirs of August Wiese, mentioned no interest in any part of section 15. A supplemental inventory filed in the estate of Henry Wiese, April 7, 1939, three days after Hamilton's last assignment of his lease interests, and three years after the original inventory had been filed, listed an interest in the disputed strip as a "roadway."
The single issue requiring consideration, in order to determine ownership of the fee in the controverted strip, and, consequently, the right to the underlying minerals, is whether the words "to be used for road purpose" in the deed from Bettie Francis to August Wiese are to be construed as part of the description in a grant of an easement, as contended by plaintiffs, or are merely descriptive of the anticipated use, and not a condition or limitation, in a conveyance of a fee simple title, as defendants maintain.
The primary purpose of the construction of a deed is to ascertain the intention of the parties, to be gathered from the instrument as a whole, giving effect to every word and rejecting none as meaningless or repugnant, if this can be done without violating a positive rule of law. (Woods v. Seymour,
The deed in question is in the form prescribed by section 9 of the Conveyances act, (Ill. Rev. Stat. 1939, chap. 30, par. 8, p. 796,) containing no words which at common law would convey an estate of inheritance. Section 13 of the act provides that a deed in this form will be deemed to have conveyed a fee simple estate of inheritance if a less estate is not limited by express words, or does not appear to have been granted by construction or operation of law. The manifest meaning of the latter section is, that when words of inheritance are not used, every word, no matter where situated in the deed, is to be given weight in determining the estate granted. (Woods v. Seymour, supra; Bear v.Millikin Trust Co.
In Waller v. Hildebrecht, supra, the deed presented for construction conveyed part of one lot and a ten-foot strip of an adjoining lot "to be used as alley, only, in common by both parties hereto." This court held that the quoted language disclosed an intention to give no more than a right-of-way, and that only an easement across the second lot was granted. Weihe v.Lorenz,
Carter Oil Co. v. Myers,
The motion of defendants to dismiss the amended and supplemental complaint, made at the close of plaintiffs' evidence, submitted the cause to the chancellor for a decision on the merits, and the issue under consideration is to be determined upon the evidence adduced. (People v. Scanlan,
The decree of the circuit court of Washington county is reversed and the cause is remanded, with directions to enter a decree in accordance with this opinion.
Reversed and remanded, with directions.
Mr. JUSTICE STONE, dissenting.
Concurrence Opinion
I agree with the conclusion reached but not with all the reasoning of this opinion.