Kilfoyle v. Wright

• Decision Date: 20 March 1962
• Docket Number: No. 19102.,19102.
• Citation: 300 F.2d 626
• Parties: Mrs. C. H. KILFOYLE, Appellant, v. W. M. WRIGHT and Gulf Oil Corporation, Appellees. W. M. WRIGHT, Appellant, v. Mrs. C. H. KILFOYLE, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

300 F.2d 626 (1962)

Mrs. C. H. KILFOYLE, Appellant, v. W. M. WRIGHT and Gulf Oil Corporation, Appellees.

W. M. WRIGHT, Appellant, v. Mrs. C. H. KILFOYLE, Appellee.

No. 19102.

United States Court of Appeals Fifth Circuit.

March 20, 1962.

Albert J. Tully, Mobile, Ala., Holberg, Tully, Hodnette & Mobley, Mobile, Ala., of counsel, for appellants.

W. Dewitt Reams, Sam W. Pipes, III, Mobile, Ala., Charles C. Richmond, Sr., Wm. R. Harris, Jackson, Miss., Irwin W. Coleman, Jr., Raymond A. Corcoran, Mobile, Ala., C. C. Richmond, Jackson, Miss., Lyons, Pipes & Cook, Mobile, Ala., of counsel, for appellee Gulf Oil Corporation.

Before RIVES and WISDOM, Circuit Judges, and CARSWELL, District Judge.

RIVES, Circuit Judge.

On motions for summary judgment the district court held that a deed from Wright to Mrs. Kilfoyle dated September 2, 1943:

(1) Included in the described lands Lot 13, Block 23 of the Townsite of Citronelle, Alabama.

(2) Conveyed to Mrs. Kilfoyle for the period described the entire royalty interest in gas, oil and other minerals, and not ownership of the minerals themselves as they are imbedded in the ground.

Most of the pertinent facts and the reasons for the holdings are clearly and ably stated in the opinion of the learned district judge, reported as Kilfoyle v. Wright, S.D.Ala., 1960, 188 F.Supp. 899. The first issue as to whether the lands described in the deed included the said Lot 13, Block 23, should, we think, be determined on a hearing on the merits rather than on motion for summary judgment. In all other respects we affirm the judgment of the district court.

The description typed into the printed deed form is as follows:

"LOTS 15, 17 & 19 in Block 23, Lots 14, 16, 18, 5 & 7, in Block 24, Townsite of Citronelle, Alabama, and more particularly described as follows: BEGINNING at the N.E. Corner of S.W. ¼ of NE ¼, Section 25, Township 2 North, Range 3 West, running South 1400 feet; THENCE East 630 ft.; THENCE North 300 ft.; THENCE East 630 ft.; THENCE North 300 feet; THENCE East 630 ft.; THENCE North 800 ft.; THENCE West 1280 ft. to beginning, containing in all 35 acres, more or less; and being the same land conveyed by Serafino Brock & wife, Constanza Brock, to Benjamin Harris by Warranty Deed recorded in Deed Book No. 244, page 581, Mobile County, Alabama, Records, and conveyed by said Benjamin Harris to W. M. Wright on August 24, 1943, by deed recorded in said Records of Mobile County, Alabama; ____".

In determining the identity of the property, as with other terms of a deed, the purpose and end of construction and of rules of construction is to ascertain what the parties intended. The general rule is thus expressed in 26 C.J.S. Deeds § 100g.:

"In construing the deed to determine the identity of the property, reference may be had to the state of facts existing when the deed was made, to ascertain the intention of the parties, and the court will place itself as nearly as possible in the position of the parties and interpret the language in the light of the surrounding circumstances."

That general rule prevails in Alabama.

"And it is the well-settled rule that, where the language of a deed is ambiguous, the intention of the parties may be ascertained by a consideration of the surrounding circumstances existing at the time of its execution, and for this purpose the court will place itself as nearly as possible in the position of the parties when the instrument was executed. 18 Corpus Juris, p. 260. To ascertain the intent in respect to the property conveyed, reference may be had to the state of facts as they existed when the instrument was made, and to which the parties may be presumed to have had reference. 18 Corpus Juris, 280. Of course the entire instrument is to be considered, and, if it can be reasonably done, and not inconsistent with the general intent of the whole instrument, effect and meaning should be given to every clause, word, and expression, so that the deed may operate according to the intention of the parties. 18 Corpus Juris, 258." Nettles v. Lichtman, 1934, 228 Ala. 52, 152 So. 450, 452, 91 A.L.R. 1455. See also, W. T. Smith Lumber Co. v. Fox, 1935, 231 Ala. 159, 164 So. 214, 215; Scott v. McDonald, 1947, 249 Ala. 464, 31 So.2d 351, 353.

We agree with the district court that the language of the description of the deed is ambiguous. It contains four methods of reference to the property included: (1) an enumeration by lot and block number; (2) a metes and bounds description; (3) a statement of approximate acreage; (4) a reference to other deeds conveying the same land. Briefly considering each of these four methods, we observe: (1) The enumeration of lot and block numbers does not mention Lot 13, Block 23. (2) The metes and bounds description when applied literally as written to the map of the Town of Citronelle is obviously erroneous since it would include no part of any of the enumerated lots except a narrow strip along the north side of Lot 19, Block 23. Mrs. Kilfoyle urges that there is an obvious typographical error in the beginning point of the metes and bounds description, which she insists should be the SE instead of the NE corner of SW¼ of NE ¼ of Section 25, Township 2 North, Range 3 West. If the beginning point is so changed, then the metes and bounds description would include Lot 13, Block 23, but would not include small strips of some of the other lots, particularly Lots 14, 5 and 7 of Block 24, and the line would not connect up along the north boundary of Lot 19, Block 23. The metes and bounds description does not therefore furnish any exact and accurate description of the enumerated lots either as including or as excluding Lot 13, Block 23. (3) The statement of acreage is, on its face, only an approximation, "35 acres, more or less." Wright's brief computes the acreage of the enumerated lots as 42.63 acres without including Lot 13, Block 23, which contains 4.10 acres. (4) The two deeds to which the description makes reference as conveying the same land each describe the property by one method only, that is by lot and block number, and include Lot 13, Block 23 along with the other lots described by lot and block numbers in the deed under consideration. It is, therefore, something of an understatement to say that the description of the property in the present deed is ambiguous.

The evidence on the motion for summary judgment showed that the deed was prepared by Mrs. Kilfoyle on a printed form selected by her, and into which she typed a description of lands furnished to her by Wright. Wright did not testify, and Mrs. Kilfoyle did not remember whether Wright gave her the description orally over the telephone or furnished it to her either in a separate writing or in one or both of the earlier deeds to which reference is made. There was no showing that Mrs. Kilfoyle ever saw the lands intended to be described, or attempted to trace their boundary.

The deed recites a purchase price of "Ten Dollars ($10.00) and other good and valuable considerations." Mrs. Kilfoyle had forgotten the amount of the actual purchase price, and whether that amount was calculated on a price per acre or in an agreed lump sum. Mrs. Kilfoyle introduced a letter which Wright had written to her on November 26, 1955, some twelve years after the deed was executed, and in which he said: "The Lots that you have the Royalty under on this drilling site is (sic) Lots 19, 17, 15 and 13 Block 23 and Lots 18, 16, 14 Block 24. It lokks (sic) as if you have all the Royalty under this Site except 5 acres and 1/8 minerals under Lot 19 Block 23." Wright did not undertake to explain this letter. Gulf Refining Company had submitted to Mrs. Kilfoyle a proposed ratification of Wright's oil, gas and mineral lease to it which described the property as including Lot 13, Block 23.

With all of this evidence, if the judgment had been entered at the end of a trial on the merits it may very well be that we could not set aside as clearly erroneous a finding of fact that Lot 13, Block 23 of the...