Henningsen v. Stromberg, 8892

• Decision Date: 22 August 1950
• Docket Number: No. 8892,8892
• Citation: 221 P.2d 438,124 Mont. 185
• Parties: HENNINGSEN v. STROMBERG et al. AVARE et al. v. ANACONDA COPPER MIN. CO.
• Court: Montana Supreme Court

Page 438

221 P.2d 438

124 Mont. 185

HENNINGSEN v. STROMBERG et al.

AVARE et al. v. ANACONDA COPPER MIN. CO.

No. 8892.

Supreme Court of Montana.

Submitted Sept. 29, 1949.

Jan. 13, 1950.

As Amended July 17, 1950.

As Amended on Denial of Rehearing Aug. 22, 1950.

Ralph J. Anderson, Albert C. Angstman, Helena [Mr. Anderson argued the case orally] for appellant.

Arthur P. Acher, Helena, Charles L. Zimmerman, Butte, for Katherine Avare.

Howard A. Johnson, Butte, for McCarthy.

George D. Toole, Butte, for Dorais and others.

Robert G. Dwyer, W. M. Kirkpatrick, W. H. Hoover, R. H. Glover, John V. Dwyer, J. T. Finlen, Jr., Butte, for Anaconda Copper Min. Co.

Mr. Johnson, Mr. Acher, Mr. Zimmerman and Mr. Robt. G. Dwyer argued the case orally for respondents.

T. B. Weir, Helena, for amicus curiae.

BOTTOMLY, Justice.

Action by the plaintiff, Phyllis M. Henningsen, to quiet title to three mining claims, namely, the Frenchman No. 2, Missouri Girl and Rear Stake, located in Silver Bow county, Montana. There are numerous defendants named in the complaint. The action is brought under the authority of Chapter 198, Laws of 1937, and the provisions of Chapter 63 of the Code of Civil Procedure of 1935.

The answering defendants were: Katherine Avare, Elinor G. McCarthy, Anaconda Copper Mining Company, a corporation, Eugene Albert Dorais, Mrs. Eugene Albert Dorais, Charles Edouard Dorais, Mrs. Charles Edouard Dorais and Joseph Dorais Wilson. The defaults of all other defendants have been entered.

The judgment entered on the 15th day of October 1948, decreed the Anaconda Copper Mining Company, a corporation, as the sole and exclusive owner in fee simple of an undivided one-fourth interest in and to the Frenchman No. 2 Quartz Lode mining claim, designated by the surveyor-general as lot or survey No. 6518; that subject to the foregoing one-fourth interest, the following persons are the owners in fee simple of and entitled to the possession of the property in the interests set opposite their respective names:

Katherine Avare 130,497 1/2/247,236 1/2

Phyllis M. Henningsen 114,239/247,236 1/2

Elinor G. McCarthy 2,500/247,236 1/2,

and that all other defendants and all other persons, known or unknown, not thereinbefore named are without any right whatever and have no right, title, interest, claim or estate whatsoever in or upon said real property, or any part thereof.

The only parties before this court are Phyllis M. Henningsen, Katherine Avare, Elinor G. McCarthy and the Anaconda Copper Mining Company, a corporation.

This appeal is divided into two parts: First, the validity of the judgment and decree granting to the Anaconda Copper Mining Company, a corporation, the fee in and to an undivided one-fourth interest in the Frenchman No. 2 Quartz Lode mining claim. From this part of the judgment the plaintiff appeals, so likewise do the defendants Katherine Avare and Elinor G. McCarthy. This phase of the case we will proceed to dispose of first.

The execution of the articles of incorporation of the Butte Copper King Mining Company was acknowledged on April 19, 1906, and filed for record in the office of the clerk of Silver Bow county, Montana, on April 20, 1906, and in the office of the secretary of state on April 25, 1906. A. P. Henningsen, Henry Avare and D. Dorais were three of the incorporators and directors of the corporation. The corporation was organized for the purpose of carrying on a general mining business, of buying, selling, leasing and developing mines and mine property.

It appears from the evidence that the major purpose of the corporation at the time it was incorporated was to become the owner of those three lode claims known as the Missouri Girl, Rear Stake and Frenchman No. 2, situated in Silver Bow county, Montana.

Under date of April 9, 1904, and filed for record May 19, 1906, the United States of America issued patent, mineral certificate No. 4245, conveying the Frenchman No. 2 lode mining claim to John N. Kirk, Donat Dorais, Samuel D. Sumwalt and Martin Johnson. This is the only claim we are concerned with under this phase of the case.

Under date of March 16, 1906, Samuel D. Sumwalt conveyed a one-fourth interest in the Frenchman No. 2, Survey No. 6518, and other property, to D. Dorais.

Under date of April 26, 1906, D. Dorais, John N. Kirk and Henry Avare, and their respective wives, executed a deed to the Butte Cooper King Mining Company. The granting clause of this deed is as follows: 'Remise, release and forever quitclaim unto the said party of the second part, and to its successors and assigns forever, all the following described property, situated in Silver Bow county, Montana, and bounded particularly described as follows, to-wit:

'The Rearstake Lode, Survey No. 6620, the Missouri Girl Lode, Survey No. 6619, and Frenchman No. 2, Survey No. 6518, excepting and reserving, however, from this conveyance, three several portions of the surface of the said property described as follows, to-wit: (The descriptions of the reservations are then set forth.)

'Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining.

'To Have and to Hold all and singular the said premises together with the appurtenances unto the said party of the second part, and to his heirs and assigns forever.'

Under date of May 18, 1906, Martin Johnson et ux. conveyed all their right, title and interest in and to the Frenchman No. 2 to D. Dorais.

On July 18, 1913, D. Dorais died, his estate was probated and no mention of any interest in the Frenchman No. 2 Lode was made in said proceeding, nor is there any evidence that D. Dorais, during his lifetime, ever asserted any claim to this one-fourth interest, nor is there any evidence that any of his heirs asserted any such claim until 1945.

On October 28, 1929, Josephine Dorais, wife of D. Dorais, died. In 1945, some sixteen years later, her estate was probated, and as an asset of said estate the one-fourth interest in the Frenchman No. 2 was administered resulting in its sale to F. B. Winger, by administrator's deed, dated May 14, 1945, filed May 16, 1945.

May 16, 1945, F. B. Winger et ux. conveyed the one-fourth interest in the Frenchman No. 2 to Anaconda Copper Mining Company for a consideration of $1. Upon this deed the Anaconda Company founded their ownership to a one-fourth interest.

Plaintiff's contention is that the deed from D. Dorais et al. dated April 26, 1906, to the Butte Copper King Mining Company, conveyed the land itself and not just the grantor's interest in the property, and therefore passes after-acquired title.

Defendant Anaconda Copper Mining Company contends that the said deed from D. Dorais et al. to Copper King Mining Company was a quitclaim deed only and therefore does not pass after-acquired title.

The sole question in this particular phase of the case is whether the deed from Dorais, Kirk, Avare and their respective wives to the Butte Copper King Mining Company passed the fee together with the undivided one-fourth interest in the Frenchman No. 2 which Dorais acquired from Johnson some twenty-two days after he had conveyed to the Butte Copper King Mining Company.

'It is elementary that in construing the terms of a deed the court must, if possible, ascertain the intention of the parties to the sale as expressed by the deed.' Hollensteiner v. Missoula Lumber Co., 37 Mont. 278, 283, 96 P. 420, 421.

The general rule as stated in C.J.S. is: 'The main object in construing a deed is to ascertain the intention of the parties from the language used and to effectuate such intention where not inconsistent with any rule of law.' 26 C.J.S., Deeds, § 83, page 324; Cobban Realty Co. v. Chicago, M. & St. P. R. Co., 58 Mont. 188, 191, 190 P. 988.

'The tendency of modern decisions is to disregard technicalities and to treat all uncertainties in a conveyance as ambiguities subject to be cleared up by resort to the intention of the parties as gathered from the instrument itself * * *' 16 Am.Jur., Deeds, sec. 168, p. 532; Krutzfeld v. Stevenson, 86 Mont. 463, 475, 284 P. 553.

'The general rule is well settled that if there is any ambiguity in a deed so that it is capable of two possible constructions, one of which will be more favorable to the grantee, the other of which will be more favorable to the grantor, that method of construction which will be more favorable to the grantee will be selected and the deed will be construed against the grantor. All doubts, therefore, are to be resolved against the grantor. The rule is statutory in some jurisdictions. The rule is predicated upon the reasoning that since a grant is expressed in words of the grantor's own selection, it is, prima facie, an expression of his intention, and he is therefore chargeable with the language used.' 16 Am.Jur., Deeds, sec. 165, p. 530.

The foregoing rule is expressed in section 6852, R.C.M.1935, as follows: 'A grant is to be interpreted in favor of the grantee, except that a reservation in any grant, and every grant by a public officer or body, as such, to a private party, is to be interpreted in favor of the grantor.' See Story v. Woolverton, 31 Mont. 346, 354, 78 P. 589; Mineral County v. Hyde, 111 Mont. 535, 111 P.2d 284; U. S. v. Eldredge, D.C., 33 F.Supp. 337.

It is to be noted that this deed purported to convey to the party of the second part and to its successors and assigns forever, all the described property, to have and to hold all the said premises unto the said party of the second part, and to his heirs and assigns forever.

Section 6867, R.C.M.1935, provides: 'Where a person purports by proper instrument to grant real property in fee simple, and subsequently acquires any title, or claim of title thereto, the same passes by operation of law to the grantee, or his successors.'

Keeping in mind the foregoing principles of law and the statutory provisions, we find the deed under consideration from Dorais, Avare and...