Bennett v. Smith

• Decision Date: 19 February 1952
• Docket Number: No. 10406,10406
• Parties: BENNETT, v. SMITH.
• Court: West Virginia Supreme Court

Page 42

69 S.E.2d 42

136 W.Va. 903

BENNETT, v. SMITH.

No. 10406.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1952.

Decided Feb. 19, 1952.

Syllabus by the Court.

1. A deed which grants a tract of land, described by metes and bounds, which contains no exception or reservation of the coal underlying the land conveyed, but which refers, 'by way of further description', to a prior deed in which the same land is identically described by metes and bounds and in which the coal is expressly excepted and reserved, does not, by such reference, incorporate in such deed the exception and the reservation of the coal contained in the prior deed, and does not except or reserve the coal from its operation but passes the title of the grantor to such coal to the grantee in such deed.

2. To except or reserve any part of or any estate in land granted by a deed, a provision in the deed for that purpose must be as certain and as definite as an effective granting clause in such deed.

Wyatt & Randolph, Clarksburg, for appellant.

Creed S. Simons, Clarksburg, for appellee.

HAYMOND, Judge.

This proceeding was instituted in the Circuit Court of Harrison County in August, 1950, to obtain a declaratory judgment to ascertain the meaning and the effect of various provisions in certain deeds and to determine the ownership of an undivided one half interest in coal underlying a tract of 36.9 acres of land, which interest is claimed by the plaintiff Bert Bennett and also by the defendant William Winter Smith. From a final judgment entered April 24, 1951, which declared the plaintiff to be the owner of the undivided interest in the coal involved, the defendant prosecutes this appeal.

The case was heard upon the bill of complaint of the plaintiff and the exhibits filed with it, the answer of the defendant, and a written agreed statement of facts entered into and signed by counsel respectively representing the plaintiff and the defendant.

Some time prior to June 10, 1921, Lloyd L. Smith, being seized and possessed of two tracts or parcels of land containing 241.49 acres and 116 acres, more or less, respectively, died intestate in Harrison County leaving surviving him Ice W. Smith, his widow, and Elizabeth W. McCord and the defendant William Winter Smith as his two children and sole heirs at law. By an interpartes deed dated June 10, 1921, between Ice W. Smith, Elizabeth W. McCord and William Winter Smith and Mary Louise Smith, his wife, the lands of Lloyd L. Smith, except the coal and the oil and the gas within and underlying them, were partitioned and divided among Ice W. Smith, Elizabeth W. McCord and William Winter Smith in severalty and in fee simple. In the partition thus effected, in addition to other tracts of land not involved in this proceeding, the defendant William Winter Smith was assigned and granted the interests and the estates of Ice W. Smith and Elizabeth W. McCord, in two tracts of land designated as Lot No. 4, containing 36.9 acres, and Lot No. 6, containing 44.56 acres, except the coal and the oil and the gas within and underlying those two tracts. Each of the two tracts of land was particularly described by metes and bounds in the interpartes deed of June 10, 1921, which, with respect to the coal and the oil and the gas, contained this provision: 'It is expressly understood and agreed by and between all the parties to this deed that all the coal, oil and gas within and underlying all of the several tracts and parcels of land above described is not partitioned and divided and the same is excepted and reserved from each of the several above conveyances and is to be held and owned in common by all the parties hereto.'

The undivided one half interest in the coal, within and underlying Lot No. 4, containing 36.9 acres, inherited by the defendant William Winter Smith from his father, Lloyd L. Smith, which interest is now claimed by each of the parties to this controversy, is the coal involved in this proceeding; and Lot No. 4 is particularly described in the interpartes deed in these terms: '(A) Lot No. 4 as shown on the plat above mentioned which is bounded as follows: Beginning at a post, corner to lot No. 2, and running thence S. 17 E. 351 feet to corner of lot No. 3; thence with line of lot No. 3 and lot No. 5 S. 43~45' W. 1843 feet to a stone on flat thence S. 85 1/2 W. 485 feet to a stone; thence N. 60 1/4 W. 836 feet to a stone; thence N. 16 E. 143 feet to a stake in line of Willa V. Stone; thence N. 89 E. 152 feet to a dead chestnut; thence N. 89 E. 229 feet to a post; thence N. 61 1/2 E. 196 feet to a post; thence N. 13 E. 126.17 feet to a C. O.; thence N. 88 1/2 E. 422.63 feet to a stone; thence N. 31 1/4 E. 351.2 feet to a post; thence N. 58 E. 540.8 feet to a stake; thence N. 51 3/4 E. 241 feet to a stone; thence N. 68~45' E. 520 feet to the beginning, containing 36.9 acres.'

By deed dated May 20, 1931, the defendant William Winter Smith conveyed to his wife, Mary Louise Smith, with covenants of general warranty, Lot No. 4 containing 36.9 acres and Lot No. 6 containing 44.56 acres. The particular descriptions of Lot No. 4 and Lot No. 6 in this deed from the defendant to his wife are identical with the descriptions of each of those lots in the interpartes deed. The deed from the defendant to his wife contains no express exception or reservation of the coal or the other minerals underlying either of the two tracts but immediately following the description of Lot No. 6 does contain this provision: 'said tracts or parcels of land being two of the same tracts or parcels of land that were conveyed to William Winter Smith by Ice W. Smith and Elizabeth W. McCord, by deed dated the 10th day of June, 1921, and of record in the office of the Clerk of the County Court of Harrison County, in Deed Book No. 320, page 131, to which deed reference is here made by way of further description.' Subsequently, by deed dated September 28, 1940, Mary Louise Smith, referred to as single, conveyed Lot No. 4 and Lot No. 6 to the plaintiff, Bert Bennett, Jr., with covenants of general warranty but subject to a vendor's lien upon Lot No. 4 retained in the deed to secure certain installments of unpaid purchase money. In this deed the particular description of each of the lots conveyed is identical with the description of each of them in the interpartes deed. This deed likewise contains no express exception or reservation of the coal or the other minerals underlying the lands conveyed, but immediately following the description of Lot No. 6 does contain this provision: 'said two tracts or parcels of land hereby conveyed being the same land that was conveyed to the said Mary Louise Smith by William Winter Smith, by deed bearing date on the 20th day of May, 1931, and of record in the County Clerk's Office of said Harrison County in Deed Book No. 423, at Page 32, to which deed reference is here made.' Each of the three foregoing deeds was duly admitted to record in the office of the Clerk of the County Court of Harrison County prior to the institution of this proceeding.

The plaintiff, claiming ownership of the undivided interest in the coal in controversy under the deed from the defendant William Winter Smith to Mary Louise Smith, dated May 20, 1931, and her deed to the plaintiff, dated September 28, 1940, contends that as neither deed expressly excepted or reserved the coal the undivided one half interest in the coal inherited by the defendant William Winter Smith was conveyed to Mary Louise Smith and by her to the plaintiff by those deeds, and that neither the reference in the deed from the defendant William Winter Smith to Mary Louise Smith to the interpartes deed 'by way of further description' nor the reference in the deed from Mary Louise Smith to the plaintiff to the deed from the defendant William Winter Smith to Mary Louise Smith incorporated in either deed the exception or the reservation of the coal and the other minerals contained in the interpartes deed. On the contrary, the defendant insists that the reference in the deed from him to Mary Louise Smith to the interpartes deed and the reference in the deed from Mary Louise Smith to the plaintiff to the deed from the defendant William Winter Smith to Mary Louise Smith incorporated in each of those deeds the exception and the reservation of the coal and the other minerals contained in the interpartes deed, and operated to except and reserve the coal from each of those subsequent conveyances.

In support of his contention that the foregoing references in the deeds from the defendant William Winter Smith to Mary Louise Smith and the deed from Mary Louise Smith to the plaintiff operated to except and reserve the coal and prevented title to it from passing to each grantee, the defendant cites and relies upon the cases of Thomas v. Young, 93 W.Va. 555, 117 S.E. 909, and Hope Natural Gas Company v. Reynolds, 126 W.Va. 580, 30 S.E.2d 336.

In the Thomas case the effect of certain provisions in several deeds under which the defendant claimed title to coal underlying two contiguous tracts of land, one containing 21 acres and the other containing 11 acres, both of which were a part of a larger tract of 84 3/4 acres, was involved. A deed from Lena M. Franklin to the defendant, for the tract of 21 acres contained a general description of the land and covenants of general warranty but no exception or reservation. It referred to an earlier deed made by Young, a prior owner, to a man named Jenkins, without stating the purpose of the reference. The deed referred to, from Young to Jenkins, described the tract by metes and bounds and reserved all the minerals that were reserved in a prior deed made by a man named Bruen. In the deed made by Bruen a larger tract containing 84 3/4 acres, of which the 21 acre tract was a part, was described by metes and bounds and the coal and the iron minerals were excepted and reserved. As to the 21 acres this Court adopted the view that...