Gray-Mellon Oil Co. v. Fairchild

• Decision Date: 22 March 1927
• Citation: 292 S.W. 743,219 Ky. 143
• Parties: GRAY-MELLON OIL CO. v. FAIRCHILD.
• Court: Kentucky Court of Appeals

292 S.W. 743

219 Ky. 143

GRAY-MELLON OIL CO. v. FAIRCHILD.

Court of Appeals of Kentucky.

March 22, 1927

Appeal from Circuit Court, Johnson County.

Action by A. M. Fairchild against the Gray-Mellon Oil Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Kirk Kirk & Wells, of Paintsville, and Garnett & Van Winkle, of Louisville, for appellant.

Fred Howes, of Paintsville, for appellee.

HOBSON C.

On April 2, 1859, Joseph Williams and wife executed to William P. Mellon and Algernon S. Gray an instrument which, so far as material here, is in these words:

"This indenture made this 2d day of April, 1859, between Joseph Williams and his wife, Elizabeth Williams * * * of the one part, being all of Johnson county, Kentucky, and William P Mellon of the county of Lawrence, Kentucky, and Algernon S. Gray of Packingham county, Virginia, of the second part.

Witnesseth: That in consideration of the sum of one dollar in hand paid, the receipt of which is hereby acknowledged, the parties of the first part have granted and sold to the said parties of the second part, exclusive privilege of making, mining and getting oil on or from the lands which they severally own, and such rights of way as may be necessary for the purpose to wit: The said Joseph and Elizabeth Williams on their part of land which lies on Paint creek in said county of Johnson and lies west of Stephens Pelphery's land, the tract containing about 480 acres. * * * And the said parties of the first part convey to the said parties of the second part the said exclusive privilege and the said right of way with special warranty.

In witness of all of which they have hereunto set their proper signatures the day and year above written. * * *

[Signed] Joseph Williams,

Elizabeth Williams. * * *"

The instrument was properly acknowledged and recorded. On December 6, 1920, A. M. Fairchild brought this action against the Gray-Mellon Oil Company, alleging in his petition that he was the owner of a tract of 140 acres of land, and that he and those under whom he claimed had been in the adverse possession of the land for more than 50 years, holding it as their own; that the Gray-Mellon Oil Company was setting up a spurious claim to the oil and oil privileges in the land under the above writing; that the only right conveyed thereby was the personal privilege authorizing Algernon S. Gray and William P. Mellon to mine and get oil from the land; that this right or privilege was never exercised by either of them and was totally abandoned by them more than 60 years ago, and none of their heirs ever attempted to convey their rights until about the year 1920, at which time a number of persons claiming to be their heirs executed some kind of instrument of right conveying to the defendant their rights. He also alleged Gray and Mellon had never performed the consideration for which the grant was made; that the claim of the defendant was a cloud upon his title; that recently there has been great activity in the production of oil and gas and in leasing property for this purpose in the vicinity; and that he could lease his lands for a substantial royalty, but for the wrongful claim of the defendant. He prayed that his title be quieted, and that the defendant be perpetually enjoined from asserting any interest or right to any portion of the land. The defendant answered, denying the allegations of the petition and asserting its right under the instrument above quoted. Proof was taken, and on final hearing the circuit court adjudged the plaintiff the relief sought. The defendant appeals.

Both parties claim under Williams. The conveyance by Williams, under which Fairchild claims, was made after the instrument above quoted was executed and recorded. It is insisted for the plaintiff that the Gray-Mellon Oil Company does not show a full title to the whole of the interest of Gray and Mellon under the instrument above quoted, for the reason that the defendant holds under deeds, made by certain devisees, under wills probated in other states or countries, which do not appear to have been probated in Kentucky, but no objection to the evidence was filed in the circuit court, and this objection cannot be made for the first time in this court. If the objection had been made in the circuit court, the trouble might have been removed by filing an additional certificate. This objection only goes to a part of the deeds. The Gray-Mellon Oil Company admittedly owns some interests, and, owning an interest, it has the right to defend this action to protect that interest. A. M. Fairchild in no way connects himself with Gray and Mellon. He does not own any interest which they owned. He is the plaintiff in the action, and he must recover, if at all, on the strength of his own title and not on the weakness of the defendant's title.

This brings us to the question of the effect of the instrument. At common law words of inheritance were necessary in a deed to create a fee. But section 2342, Ky. Stats., provides:

"Unless a different purpose appear by express words or necessary inference, every estate in land created by deed or will, without words of inheritance, shall be deemed a fee simple or such other estate as the grantor or testator had power to dispose of."

Under this statute, "words of inheritance" are not necessary to the creation of a fee. Beinlein v. Johns, 102 Ky. 570, 44 S.W. 128, 19 Ky. Law Rep. 1969. It will be observed that by the deed Joseph and Elizabeth Williams grant the parties of the second part the exclusive privilege of making, mining, and getting oil on or from the land, and also they convey to them the said exclusive privilege with special warranty. Section 493, Kentucky Statutes, provides:

"A covenant by a grantor, 'that he will warrant specially the property thereby conveyed,' or words of like import, or the words 'with special warranty,' in any deed, shall have the same effect as if the grantor had covenanted that he, his heirs and personal representatives, would forever warrant and defend the said property unto the grantee, his heirs, personal representatives and assigns, against the claims and demands of the grantor and all persons claiming, or to claim by, through, or under him." It therefore follows that by this deed Williams and wife covenant that they will warrant the property unto the grantees, their heirs, and assigns against the claims and demands of the grantors and all persons claiming thorough or under them. This warranty binds Fairchild no less than Williams, as he claims under Williams, and he is estopped to deny the rights of the grantees in the deed to what was thereby conveyed.

The question therefore presented is, What is conveyed by the deed? We cannot see that there is any substantial distinction between this instrument and the one before the court in Scott v. Laws, 185 Ky. 440, 215 S.W. 81, 13 A. L. R. 369. That deed also was made in 1859. It conveyed "all of the mineral rights and coal privileges." It was contended there as here that the rights had been lost by nonuser and abandonment, and that, in any event, this should be the case as to oil and gas, but the court said:

"Since there was a severance of the mineral estate from the surface estate, the owner of the minerals did not lose his right or his possession by any length of nonuser, nor did the owner of the surface acquire title by the statute of limitations to the minerals by his exclusive and continued occupancy and enjoyment of the surface merely. * * *

But the further contention is made that oil and gas did not pass by the conveyance in question. Here the grantors conveyed 'all of the mineral right and coal privileges and rights of way to and from said minerals and coal privileges; also the right to search for all undiscovered minerals and coals upon the lands hereinafter described.' * * *

Since oil and gas are minerals, and there is nothing in the language...