Moody v. Alexander

145 Pa. 571 | Pennsylvania Court of Common Pleas, Jefferson County | 1892

Opinion,

Mr. Justice Williams :

This case was here on the appeal of Alexander in 1888: Alexander’s App., 20 W. N. 283. Three questions were then raised: 1. Was Rebecca Brown, who had advanced two thousand dollars of the purchase money due from Moody, in a position that entitled her to protection when the title came to be made to Moody? 2. Was the letter written by Alexander to John Moody, Jr., dated September 29, 1883, conclusive upon him as to the proper construction of the contract set up in the bill ? 3. Was the deed that Alexander had tendered to Moody a full compliance with the contract of sale ?

The first question was decided in favor of the appellant, so that upon the facts as then presented Rebecca Brown became a necessary party. The second question was also decided in favor of the appellant, so that Alexander was no longer concluded by his letter, but was at liberty to insist upon his view of the proper legal construction of the contract. The third question was neither decided nor discussed, but the case went back in order that the court below might pass upon that question, without being hampered by its mistaken view of the conclusiveness of the letter. When the case came up again in the court below, the learned judge assumed that the reversal covered all three of the questions which had been raised, and accordingly held, following, as he supposed, the ruling of this court, that the deed tendered by Alexander was a full compliance with the. contract, and that Moody must accept it accordingly. We thus lose the benefit which might have been derived from a consideration of the question of construction as an •original one, by the learned judge, but the question itself is squarely before us.

•Is the deed a full compliance with the contract ? The contract referred to is dated July 1, 1879, is for the sale of one hundred fourteen and four tenths acres of land, and contains the following exception : “ Said Alexander hereby reserves all such timber on the land as he may wish to use or manufacture; also all oil and gas in or under the said lands, with free mining privileges of all kinds, right of way for roads of all kinds; ” etc. The purchase money has been paid in full, and Moody is now eiititled to a deed. This is conceded, and a deed has been tendered in which the exception or reservation is translated by the conveyancer into the following language: “ Excepting and reserving to the party of the first part, his heirs and assigns, all gas, oil, coal, ores, and other minerals or mineral deposits in, under, or upon the said premises; and also all timber growing upon the same; together with the right to construct convem ient roads over or under the same, and the right of ingress and egress for searching for and winning and removing the coal, timber, and other substances excepted and reserved.” The contention of the appellee is that the words in the contract, “ with free mining privileges of all kinds,” following the exception of the oil and gas, operate as an exception of all minerals that may be won by mining, and justify the incorporation of such exception into the deed. The appellant, on the other hand, contends that the words are referable to the exception of the oil and gas which precedes them, and authorize in terms, what the exception might authorize by implication, viz., the use of all'the ordinary and appropriate means for finding, obtaining, and removing the oil and gas from the land sold.

The general rule is that by a grant of land all that is upon it, as buildings, trees, and the like, pass to the grantee ; so, also, all that is within or under it, as mines, minerals, quarries, earths, and clays. So, by the same grant, all such things as are incident, accessory, and appendant pass without express words, with the principal to which they are incident or accessory. But a grant of the accessory or incident will not carry with it the principal. Accessorium non ducit, sed sequitur suum principale: Shep. Touch., 89. Another old and well-settled rule of law is that such things as are inseparably incident to some other thing, are not grantable without the thing to which they belong. Thus, if a man grant all the minerals under his farm to A., the right to mine or obtain them by proper methods passes as an inseparable incident. If the grantor should reserve to himself “ free mining privileges of all kinds,” this would not defeat nor limit his grant to A., but, having nothing left to mine, the reservation of mining privileges would be without significance or effect. In the case before us, Alexander had sold his land to Moody. The sale carried with it all the woods above and all the minerals below the surface, not excepted out of the grant. Some things were excepted, viz., such of the timber trees as Alexander might want to use or manufacture, and the oil and gas. Expressio unius, exclusio alterius. The things named were excepted; the things not named, which were incident to or part of the freehold, passed to the grantee. But the contract saved the accessory with the principal. Having excepted the timber, it reserved the right to make roads, and the right of ingress and egress to cut and remove the timber. Having excepted the oil and gas, it added, “ with free mining privileges of all kinds,” in order that the right to seek for, secure, and remove the oil and gas by any proper process might not be left to implication. These privileges are referable naturally to the things excepted, for the removal of which such privileges were indispensable, and the use of the words “ mining privileges,” was appropriate to describe the process by which oil and gas are obtained: Gill v. Weston, 110 Pa. 312. They cannot extend the exception to coal, iron, and other substances not named, for the reasons already given. But, if this conclusion were involved'in doubt, we have another rule to consider, which affirms that the language in an instrument shall be taken most strongly against the grantor. If, therefore, the language of the contract could be held to be susceptible of two constructions, that should be adopted which would be most favorable to the grantee and most strongly against the grantor.

. The learned judge was wrong, therefore, in his conclusion that the language of the exception in the deed is a correct translation into appropriate words of the exception in the contract of 1879. The exception must be limited to oil and gas, so far as it relates to things below the surface.

The exception of the timber in both contracts relates to the date of the contract of sale, and not to that of the deed. If, as it is alleged, the timber has been removed, there would seem to be no reason for incorporating this exception into the deed ; but if it has not been, the reservation is of the timber which was suitable for sawing or use at the date of the contract, or the time when, under its provisions, the cutting should take place on any part of the land.

We see no objection to so much of the deed as relates to the exception of minerals in the contract of 1875.

The decree is reversed, with direction to the court below to proceed to final decree in accordance with this opinion.