Clark v. Carter

• Decision Date: 02 November 1977
• Docket Number: No. 49639,49639
• Citation: 351 So.2d 1333
• Parties: Nolan CLARK et al. v. Willie Mae CARTER et al.
• Court: Mississippi Supreme Court

Page 1333

351 So.2d 1333

Nolan CLARK et al. v. Willie Mae CARTER et al.

No. 49639.

Supreme Court of Mississippi.

Nov. 2, 1977.

Rehearing Denied Nov. 30, 1977.

Riddell & Dabbs, Tally D. Riddell, Quitman, Heidelberg, Woodliff & Franks, Luther M. Thompson, Brunini, Grantham, Grower & Hewes, John M. Grower, Jackson, for appellants.

Bacon & Smith, L. O. Smith, Jr., Gerald, Brand, Watters, Cox & Hemleben, Martha W. Gerald, Jack W. Brand, Scott P. Hemleben, Jackson, Hugh Craig Forshner, New Orleans, La., John M. Sims, Heidelberg, Robert H. McFarland, Bay Springs, for appellees.

Before SMITH, BROOM and LEE, JJ.

LEE, Justice, for the Court:

Nolan Clark, et al., have appealed from an order of the Chancery Court of the First Judicial District of Jasper County, Mississippi, holding that an instrument designated "Mineral Right and Royalty Transfer" is a royalty transfer rather than a mineral deed.

The sole question involved is whether or not the instrument is a mineral deed or a royalty transfer. Numerous parties, including oil companies, were involved in the litigation. The oil companies obtained leases from all parties, and their interest in the The instrument involved is a Form R-101 "Mineral Right and Royalty Transfer," (See Appendix) which has been used in Mississippi for a number of years. It is a printed form with blank spaces to be filed in, including a space for the description of the property. After the description, the following words were typed in the instrument:

case is to have the owners of the minerals and royalty determined in order to make proper disbursement of oil royalties. The case was tried on stipulations, exhibits and pleadings. The chancellor overruled demurrers and construed the instrument to be a conveyance of royalty rather than minerals.

"It is the intention of the grantors to convey by this instrument to the grantee, a transfer of all royalty owned by us to all minerals in, on, or under all land owned by us in Jasper County, Mississippi."

The instrument was executed by Will Carter and Dollie Carter to W. T. Rowell, grantee, was witnessed by Mrs. Leroy Wells and Carter I. Arledge, and was acknowledged by Mrs. Grace B. Arledge, notary public. The date of the instrument is June 26, 1944. On the same date, an oil, gas and mineral lease was executed by Will Carter and Dollie Carter to W. T. Rowell, lessee. It was also witnessed by Mrs. Leroy Wells and Carter I. Arledge, and acknowledged by Mrs. Grace B. Arledge. The inference is that the instruments were executed contemporaneously. They were recorded on July 14, 1944, the oil, gas and mineral lease being recorded four (4) minutes prior to the R-101 instrument, which indicates that they were received in the chancery clerk's office simultaneously.

It is significant that Will Carter and Dollie Carter were Negroes, that Dollie Carter could neither read, write nor sign her name, and that Will Carter could not read or write, although he could sign his name. Obviously, they could not have prepared the instrument, and, therefore, the inference and presumption are strong that both instruments were prepared by the grantee, W. T. Rowell, and that the intention phrase set forth above was written into the R-101 instrument by Rowell.

Appellants rely upon the case of Ford v. Jones, 226 Miss. 716, 85 So.2d 215 (1956). In that case, Jones conveyed to Ford by Form R-101 an undivided one-fourth (1/4) of the minerals in certain lands. After the description the following words were written:

"It is the intention of grantors, by this instrument, to convey, and the intention of grantee to purchase an undivided ten (10) royalty acres under the above described lands.

It is understood and agreed that this land is now subject to an outstanding oil, gas and mineral lease and grantee waives the right to receive any part of the delayed drilling rentals provided in said lease." 226 Miss. at 718-719, 85 So.2d at 216.

The chancery court held the instrument to be a royalty conveyance, but this Court construed it to be a conveyance of the minerals, stating that the provisions written after the description were not inconsistent with the printed provisions of the instrument. The Court said:

"The two intention clauses or sentences written into the instrument are entirely consistent with the foregoing provisions. The first recites that it is the intention of grantors and grantee to convey 'ten royalty acres.' Of course a deed to minerals in place carries along with it the royalty rights in the land, unless expressly excepted. Furthermore, the second intention sentence recites that the land is subject to an existing mineral lease, and that 'grantee waives the right to receive any part of the delayed drilling rentals as provided in said lease.' This provision would have been useless if the deed conveyed only a royalty interest. The grantee could waive rentals under an existing lease only if the nature of the deed in fact conveyed to him the rentals unless an exception of them was made. Moreover, the latter part of the instrument conveys expressly to the grantee the rentals under future leases." 226 Miss. at 720-721, 85 So.2d at 217.

We distinguish Ford from the present case. In Ford there was no lease executed contemporaneously with the transfer instrument. Here, the oil, gas and mineral lease is pertinent to the intention of the parties. In Ford the circumstances surrounding the grantors and information as to who prepared the instrument are not indicated, while here, it is undisputed that the grantors were illiterate and unlearned and could not have prepared it. If the present R-101 instrument was intended to be a conveyance of minerals, the intent provision typed therein would become useless because the grantee would own all royalty by reason of owning the minerals. Furthermore, there would have been no reason to obtain and record the oil, gas and mineral lease since a mineral conveyance would vest the executive rights in Rowell.

In discussing the rules for construction of deeds or contracts, this Court said in Sumter Lumber Co. v. Skipper, ...