Brungardt v. Smith

• Court: Kansas Supreme Court
• Writing for the Court: THIELE
• Citation: Brungardt v. Smith, 178 Kan. 629, 290 P.2d 1039 (Kan. 1955)
• Decision Date: 10 December 1955
• Docket Number: No. 39901,39901
• Parties: Ben A. BRUNGARDT, Appellant, v. Mary SMITH et al., Defendants, F. H. Koelling, Jr., and Thelma Koelling, his Wife, E. A. Ruggels and Lucille Ruggels, his Wife, D. T. Broun, Jr., and Winifred Broun, his Wife, Stanley Marr and _____ Marr, his Wife, Appellees.

Page 1039

290 P.2d 1039

178 Kan. 629

Ben A. BRUNGARDT, Appellant, v. Mary SMITH et al., Defendants, F. H. Koelling, Jr., and Thelma Koelling, his Wife, E. A. Ruggels and Lucille Ruggels, his Wife, D. T. Broun, Jr., and Winifred Broun, his Wife, Stanley Marr and _____ Marr, his Wife, Appellees.

No. 39901.

Supreme Court of Kansas.

Dec. 10, 1955.

Rehearing Denied Feb. 2, 1956.

Syllabus by the Court.

1. Regardless of the construction made by the trial court of a written instrument, on appeal the instrument may be construed and its legal effect determined by the supreme court.

2. The presumption is that all oral understandings and agreements leading up to the execution of a deed were merged in the deed.

3. Where the deed is unambiguous and there is no claim of fraud or its equivalent leading up to its execution, and where it is disclosed that the deed was prepared by the grantor, evidence offered by the grantor or those claiming under him as to claimed previous agreements it not admissible.

4. In construing a warranty deed the terms of which are unambiguous, the meaning and intent are to be derived from a consideration of the entire instrument.

5. The ancient rule that the habendum clause of a deed controls the granting clause thereof has lost much of its former force in this state, and the deed should be construed by considering all of its language with a view to ascertaining the intent of the grantor.

6. If the terms of a deed are clear and unambiguous, resort to rules of construction applicable to instruments which are not clear as to meaning, is not had.

7. Ambiguity in a conveyance does not appear until application of pertinent rules of interpretation to the face of the deed leaves it genuinely uncertain which of two or more meanings is the proper meaning.

8. Every conveyance of real estate shall pass all of the estate of the grantor therein, unless the intent to pass a less estate shall expressly appear or be necessarily implied in the terms of the grant (G.S.1949, 67-202).

9. The record examined in an action to quiet title wherein the issue determinable depends on the construction of a warranty deed, and held, that the inclusion in the covenant against encumbrances of exceptions to that covenant did not limit or reduce the estate of the grantor as set forth in the granting and habendum clauses of the deed.

W. McCaslin, Stockton, was on the briefs, for appellant.

D. A. Hindman, and Stanley Krysl, Stockton, were on the briefs, for appellees.

THIELE, Justice.

On May 28, 1952, the plaintiff commenced an action to quiet his title to described real estate. On January 14, 1955, the trial court quieted his title except as to mineral rights the title to which were quieted in certain of the defendants. The plaintiff has appealed to this court. Hereafter the parties will be referred to as plaintiff or defendants, or by their surnames.

As the judgment was rendered on the defendants' motion for judgment on the pleadings and opening statement, the pleadings must be reviewed. In his petition filed May 28, 1952, the plaintiff alleged he was the owner and in possession of a described tract of land and that the defendants claimed some right, title and interest of which he did not know the nature and adverse to his title and possession, but that whatever claims the defendants made were void and without right and a cloud on his title and that his action was for the purpose of determining such adverse claims and he prayed that his title be quieted.

On April 13, 1953, the defendants, Broun, Koelling and Ruggels, hereafter referred to as the defendants, filed an amended answer and cross petition containing a general denial and alleging as a first cause of action that prior to January 14, 1942, Mary Smith owned all of the land subject to certain oil and gas leases and mineral conveyances then of record and owned by persons not parties to the action, portions of which were contained in conveyances of various dates from December, 1935, to March, 1936, and running for a primary term of fifteen years, and other portions of which were contained in conveyances dated October 12, 1936, for a primary term of twenty years and another portion of which was for a primary term of fifteen years from October 6, 1937; that on January 12, 1942, Mary Smith conveyed to Ruggels 9/160ths of the mineral rights for a primary term of fifteen years and as long thereafter as oil or gas was produced from the premises. We need not note subsequent conveyances of Ruggels' interest leading to the pleaded statement that Broun, Koelling and Ruggels owned this interest in stated proportions. For a second cause of action the defendants incorporated the allegations of their first cause of action and alleged that shortly prior to January 14, 1942, Mary Smith orally agreed to sell the land to plaintiff with the express understanding and agreement that only an undivided 1/16th of the mineral interests was to be conveyed and that 15/16ths were to be reserved or excepted, and that on said date Mary Smith had orally agreed to sell all of the reversionary rights in the mineral rights to a named corporation and to Ruggels and Koelling who had paid Smith the consideration therefor prior to the execution of her deed to plaintiff; that on January 14, 1942, Smith executed a deed to plaintiff recorded January 17, 1942, containing an exception which is later quoted. A copy of this deed was attached to the answer and is later mentioned. It was further alleged that the deed was not prepared by one skilled in preparing conveyances, and that through mistake or lack of skill on the part of the scrivener of the deed the exceptions were placed in the warranty clause instead of the granting clause, and that, under the circumstances, they should be construed to constitute an exception or reservation from the grant of 15/16ths of the mineral interests. It was further alleged that by deed made on February 23, 1942, and recorded November 2, 1942, Smith conveyed the reversionary or fee interest in the 15/16ths interest in the minerals to a corporation, the deed stating at some length that the intention was to convey the interest retained and reserved in Smith's deed to Brungardt. The corporation's interest later vested in defendants; that plaintiff had knowledge of the conveyance of the mineral interests for about ten years and made no protest; that defendants relied upon the legality of the deed and the acquiescence of the plaintiff and plaintiff is now estopped and barred by laches from asserting any rights to the mineral interests conveyed; that the bases for defendants' claim and estoppel were: 1. Smith was dead and her evidence was not available; 2. By reason of plaintiff's apparent acquiescence, defendants were lulled into the belief he recognized their interest and that reformation of the deed was unnecessary and no action was commenced; 3. That by reason of oil development the price of mineral interests had increased and defendants cannot now procure similar interests without paying a substantially greater price; and 4. Due to lapse of time evidence has been lost or become unavailable. It was finally alleged that defendants had acquired the title to the mineral interests conveyed to the above mentioned corporation and that Broun, Ruggels and Koelling owned the same in stated proportions. They prayed that they be decreed the owners of 9/160ths of the mineral rights for a term of fifteen years from January 12, 1942, and as long as oil or gas is produced, and the owners of the fee or reversionary interest in the 15/16ths of the mineral interests.

On April 25, 1953, the plaintiff replied with a general denial and an admission that Smith owned the real estate subject to oil and gas leases and stated mineral conveyances of record on the date of the deed to him; that no production had been had; that the primary terms of the mineral conveyances had expired and the mineral rights had reverted and were not owned by plaintiff. Plaintiff also admitted the conveyance of January 12, 1942, by Smith to Ruggels of the 9/160ths of the mineral rights for a primary term of fifteen years, and that he had purchased the land subject thereto, and alleged that upon the expiration of the primary term or any extension thereof, the mineral rights would revert to the real estate and become his property free and clear of the claims of the defendants. Plaintiff also admitted Smith had made the deed of January 14, 1942, to him and that a true copy was attached to the defendants' answer, that such deed was in all respects in accordance with an oral contract of sale between the parties to the deed, and he denied there was any agreement that 15/16ths of the mineral interests were to be reserved. He prayed for judgment in accordance with the prayer of his original petition '* * * except as to the 9/160ths term mineral interest * * *' held by the defendants; that the deed from Smith to the corporation dated February 23, 1942, recorded November 2, 1942, and all subsequent conveyances of the interest purportedly conveyed be adjudged to be null and void and of no effect and that he have such other relief as the court deem proper.

On May 16, 1953, the defendants filed an amendment to their amended answer and cross petition, alleging as an additional defense that if the court should fail to find the 15/16ths of the mineral interests were not conveyed, it should find plaintiff holds the mineral interests in trust for defendants as he had never denied or disputed their rights or repudiated the trust until the filing of this action and had acquiesced by failing to attack the deed of Smith to the corporation of February 23, 1942, recorded November 2, 1942. As an alternative defense, defendants alleged that if the court failed to find the mineral interests were reserved by Smith or that plaintiff held title to the same in trust for defendants, that the deed from Smith to the plaintiff should be...