Bourn v. Tomlinson Interest, Inc.

• Decision Date: 05 September 1984
• Docket Number: No. 54752,54752
• Citation: 456 So.2d 747
• Parties: Ella Mae BOURN, et al. v. TOMLINSON INTEREST, INC., et al.
• Court: Mississippi Supreme Court

Page 747

456 So.2d 747

Ella Mae BOURN, et al. v. TOMLINSON INTEREST, INC., et al.

No. 54752.

Supreme Court of Mississippi In Banc.

Sept. 5, 1984.

Davis Hall Smith, Jackson, for appellant.

Donald B. Patterson, Brookhaven, J.A. Jennings, E.E. Laird, III, Gerald, Brand, Watters, Cox & Hemleben, Jackson, for appellee.

WALKER, Presiding Justice, for the Court:

The petition for rehearing is sustained, the former opinion withdrawn and this opinion substituted therefor.

That portion of the first opinion dealing with the appeal on the merits is adopted unchanged and appears herein as Part I of this opinion.

Part II of this opinion deals with the petition for rehearing.

The petition for rehearing deals with this Court's reversal of the lower court for overruling the appellants' motion to amend their pleadings after the chancellor had ruled on motions filed by the plaintiffs and defendants for summary judgment.

PART I

Ella Mae Bourn, Willie Fay Bourn Thomas, Irby Jean Bourn Adkins, W.C. and Hazel H. Letchworth, plaintiffs, have appealed from a summary judgment of the Lawrence County Chancery Court in favor of the defendants Tomlinson Interests, Inc., a Texas corporation, C.T. Carden, Darrell M. Fink, Louisiana residents, and David B. Dale, Alan Berry, and David L. Perkins, Mississippi residents.

We find the chancellor was correct in entering a summary judgment on the issue raised by the pleadings and affirm on such finding.

On July 14, 1938 Homer Buckley owned real property in Lawrence County. On that date he and his wife executed a mineral deed, entitled, however, "Mineral Right and Royalty Transfer" to one Keith Kelly, in which they conveyed and warranted to the grantee an undivided one-half ( 1/2) interest in the minerals of the realty.

On November 4, 1939 Buckley and his wife executed a mineral deed to Mrs. N.B. Dale of "an undivided fifteen-sixteenths ( 15/16) interest in, to and of all oil, gas, and other minerals" on the remaining realty owned by Buckley. ¹ This latter deed also reserved to the grantors a one-sixteenth ( 1/16) "royalty interest." The final paragraph contained a general warranty of title.

Plaintiffs are the successors in title to the Buckleys. On May 9, 1982 some 42 years after the Buckleys executed the mineral deed to Mrs. Dale, and there was a producing well on the realty, plaintiffs filed a complaint for an injunction against the defendants, the successors in titles to Mrs. Dale, and the well operator. The complaint alleged plaintiffs owned an undivided one-sixteenth ( 1/16) royalty interest in the realty, conveyed in the Dale deed, but the defendants refused to recognize their ownership and refused to pay them any royalty. The suit was for an accounting, and an injunction requiring cessation of production until plaintiffs had been paid all due them on royalties, and thereafter a decree requiring payment of one-sixteenth ( 1/16) royalty.

The chancellor sustained a motion to dismiss under Rule 12(b) of our Mississippi Rules because the complaint failed to state a cause of action, and granted plaintiffs right to amend their complaint.

An amended complaint was filed under Rule 57, seeking a declaratory judgment construing the Dale deed.

Other motions were filed, but the matter next came before the chancellor on motion for summary judgment by defendants and plaintiffs.

The only issue which either side attempted to present to the chancellor was whether the Buckleys, who owned only an The chancellor correctly ruled that the attempted reservation of an undivided one-sixteenth ( 1/16) royalty interest was ineffective. Buckley only owned an undivided one-half ( 1/2) interest in the minerals when the second deed was made. As the chancellor pointed out, if the reservation of the one-sixteenth ( 1/16) royalty interest were given effect, Mrs. Dale would have gained nothing from the deed. No error was committed in this ruling. When a grantor conveys by warranty a greater mineral interest than he actually owns, any attempted reservation will first be applied to the over-extended fraction of the interest. See Brannon v. Varnado, 234 Miss. 466, 106 So.2d 386 (1958).

undivided one-half ( 1/2) interest in the minerals and conveyed by general warranty an undivided fifteen-sixteenths ( 15/16) interest in the minerals could, in the same instrument, reserve an undivided one-sixteenth ( 1/16) royalty interest.

PART II

As stated earlier, both the plaintiffs and defendants made motions for summary judgment on which the chancellor based his ruling. However, after the chancellor announced that he was sustaining the defendants' motion for summary judgment, counsel for plaintiffs, appellants here, made an ore tenus motion to amend their pleadings to "Reform the Instrument."

It should be pointed out that the plaintiffs had amended their pleading earlier.

It is true that Rule 15, MRCP, Paragraph a, provides in part that "... leave (to amend) shall be freely given when justice so requires." In construing our rules, we look for guidance to the federal cases since the MRCP were patterned after the Federal Rules of Procedure. Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984); Brown v. Credit Center, Inc., 444 So.2d 358, 364 fn. 1 (Miss.1983). In the case of Glesenkamp v. Nationwide Mutual Ins. Co., 71 F.R.D. 1 (N.D.Cal.1974), aff'd, 540 F.2d 458 (9th Cir.1976), that Court said:

The liberal amendment policy of the Federal Rules was not intended to allow a party to circumvent the effects of summary judgment by amending the complaint every time a termination of the action threatens. The time must arrive in every case when the plaintiff must demonstrate that there...