Elrod v. Heirs, Devisees, Etc., 33174

• Decision Date: 12 December 1952
• Docket Number: No. 33174,33174
• Citation: 55 N.W.2d 673,156 Neb. 269
• Parties: ELROD et al. v. HEIRS, DEVISEES, ETC.
• Court: Nebraska Supreme Court

Page 673

55 N.W.2d 673

156 Neb. 269

ELROD et al. v. HEIRS, DEVISEES, ETC.

No. 33174.

Supreme Court of Nebraska.

Dec. 12, 1952.

Syllabus by the Court.

1. The statutory rule for interpreting a conveyance of real estate requires the court to give effect to the expressed intention of the parties as determined from the instrument as a whole if it is not inconsistent with law.

2. Each word and provision of the conveyance must be given such significance as will make effective the intention of the parties. 3. In ascertaining the intention expressed in such an instrument the court is not confined to a strict or literal interpretation of the language used if to do so would frustrate the intention of the parties thereto as gathered from the whole instrument.

4. A reservation is always something taken back out of that which is demised, the creation by the grant of a new right in the grantor from the subject of the conveyance and something which did not exist as an independent right before the grant was made.

5. An exception excludes from the operation of the conveyance the interest specified and it remains in the grantor unaffected by the conveyance.

6. The legal terms exception and reservation although strictly distinguishable are frequently used interchangeably and indiscriminately. The use of either term is not conclusive and many times is not even significant as to the intention of the parties to the instrument where used or the nature of the provision in which the term appears.

Torgeson, Halcomb & O'Brien, Kimball, for appellants.

Ivan Van Steenberg and Jack H. Myers, Kimball, for appellees.

Before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, CHAPPELL, WENKE, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

Hattie Gifford, an unmarried woman and the owner in fee simple of a section of land in Kimball County, sold and conveyed it on May 13, 1943, for a valuable consideration to appellants as joint tenants 'subject to and reserving to the grantor herein personally an undivided one-half (1/2) interest in and to all gas, oil or other minerals in, on or under said land herein conveyed,' and subject to 'an undivided one-half (1/2) interest in and to the mineral rights as above set forth reserved in the grantor herein.' The grantor died intestate in the year 1946.

Appellants sought by this suit to have it determined that the right or estate reserved by the grantor by virtue of the two provisions of the deed from her to appellants above quoted was personal to Hattie Gifford, terminated at her death, and that her heirs inherited no part of or interest in the real estate. Appellants prayed for a decree quieting an unconditional fee title to the land in them. Appellees claimed that Hattie Gifford excepted from her conveyance to appellants and that she continued until the time of her death to be the unconditional owner of an undivided one-half of the oil, gas and other minerals in, on, or under the real estate, and that they, as her heirs, became and were the owners thereof. They sought a decree quieting title thereto in them. The district court found against appellants, for appellees, and quieted title in them to an undivided one-half of the oil, gas, and other minerals in the land.

It is conceded by the parties that Hattie Gifford retained an interest in the land by virtue of the provisions of the deed set out herein, but they disagree as to the character and duration of the estate retained by her. The intention of the parties as expressed in the parts of the deed quoted and the effect of the deed must be determined from a consideration only of that instrument. There is an absence of extrinsic evidence to aid in discovering the intent of the parties.

The court in interpreting a conveyance of real estate is by legislative declaration required to carry into effect the true intent of the parties so far as it can be ascertained from the whole instrument, if not inconsistent with law. Section 76-205, R.R.S. 1943. Each word and provision in the conveyance must be given such significance as will make effective the intention of the parties. Reuter v. Reuter, 116 Neb. 428, 218 N.W. 86; Dahlke v. Dahlke, 155 Neb. 169, 51 N.W.2d 266. In ascertaining the intention of such an instrument courts are not confined to a strict or literal interpretation of the language used when to do so would frustrate the intention of the parties thereto as gathered from the whole instrument. Bear v. Millikin Trust Co., 336 Ill. 366, 168 N.E. 349, 73 A.L.R. 173; 16 Am.Jur., Deeds, § 170, p. 533.

The essence of the argument of appellants is that because the terms of the deed are 'reserving to the grantor herein personally' that a reservation was intended and created in the grantor, and that it terminated with her death. Contrary to this appellees claim that the language of the deed excluded from the grant to appellants one-half of the oil, gas, and other mineral rights in the land; that the grantor continued to own them the same as she did before she executed the deed; and that at her death this interest vested in her heirs. Specifically appellees assert the deed created an exception and not a reservation.

A reservation is some new thing issuing out of what is granted. It creates a new right in the grantor from the subject of the conveyance, something which did not exist as an independent right before the grant and which is originated by it. In Eiseley v. Spooner, 23 Neb. 470, 36 N.W. 659, 660, 8 Am.St.Rep. 128, it is said: 'An exception is said to be a withdrawal from the operation of the grant, of some part of the thing granted; while a reservation is of some new thing issuing out of what is granted. Thus, where real estate is granted, a portion thereof may be excepted from the terms of the conveyance, or the trees or woods growing thereon. If the exception be valid, the title to the thing excepted remains in the grantor, the same as if no grant had been made. A reservation, while not affecting the title to the thing granted, may reserve to the grantor a right to the use or enjoyment of a portion thereof, as an easement, the right to pass over, or the like.' In Burchard v. Walther, 58 Neb. 539, 78 N.W. 1061, the court said: 'But if the clause in each deed should be construed as an exception, and not as a reservation, plaintiff would be in no better situation, for an exception in a deed is nothing more than a qualification, by which some part of the estate is not conveyed, which would have passed to the grantee but for the exception.'

The court in Smith v. Furbish, 68 N.H. 123, 44 A. 398, 408, 47 L.R.A. 226, adopted the language of Tiedeman, Real Property, § 843, p. 684, that "The part excepted is already in existence, and is said to remain in the grantor. The grant has no effect upon it. A reservation is the creation, in behalf of the grantor, of some new right issuing out of the thing granted,--something which did not exist, as an independent right, before the grant. * * *" The court then said: 'As the reservation in this case does not appear to have been written in a peculiar sense, it is to be taken in its ordinary, natural, and popular signification, which is that after the conveyance Cross was to have no right that he did not have before. This popular sense is the legal sense, not because an artificial rule has been established by judicial or legislative power, but because the law...