McCall v. Nettles
| Decision Date | 18 November 1948 |
| Docket Number | 2 Div. 257. |
| Citation | 251 Ala. 349,37 So.2d 635 |
| Parties | McCALL et al. v. NETTLES et al. |
| Court | Alabama Supreme Court |
Johnston McCall & Johnston, of Mobile, for appellants.
J Massey Edgar, of Butler, for appellees.
The bill alleges that respondents executed and delivered to complainants two certain deeds, conveying fee simple title to tracts of land thereon described; that each of said deeds contained the clause set out in the opinion; that said deeds carried a warranty clause and by the terms, thereof complainants own not only fee simple title to the surface but all gas, oil and minerals in, on or under said land, and the right to lease said lands or any portion thereof for drilling or exploring for gas, oil or other minerals, or to convey encumber or lease same in any manner they see fit; that at the time said deeds were executed and delivered there were no outstanding leases for gas, oil or other mineral, and no royalties
derived therefrom; that since execution of said deeds complainants have executed to one Gholson a lease and agreement to explore for oil, gas or other minerals on said lands; that by the terms of such lease and agreement drilling or exploring was to begin at a time therein provided; that respondent McCall was familiar with the terms of said lease and agreement; that the lessee moved equipment on or near said lands for the purpose of such drilling or exploring, but said respondent notified him not to proceed with his operations and that complainant had no right to execute the instrument to him; that he, respondent, had some interest in the lands or the gas, oil or other minerals and refused to permit lessee to continue with his operations; that as a result complainants have been damaged.
It is further alleged that a fair determination of the rights of the parties requires a construction and interpretation of the instruments involved, and it is prayed that the court so interpret and construe said instruments.
The decree of the trial court is as follows:
'This cause is submitted to the court on demurrers filed to the bill of complaint as amended.
'This bill of complaint was filed for the construction of certain exceptions and reservations contained in deeds made by the respondents to J. M. Andrew, Sr. and J. R. Nettles. It appears that J. M. Andrew, Jr., has acquired an interest in the property since the execution of the two deeds mentioned in the bill of complaint for construction of the exception or reservation. It appears that the respondents have objected to the leasing of the land by the partnership composing the Nettles Lumber Company and that as a result of this objection the partners have been unable to lease the same for the development of any oil, gas, coal, or other minerals.
'In the exception or reservation it appears that the grantors use the words 'Fifty per centum of all rentals that may be derived from coal, oil, gas or other mineral leases in and to said lands hereinabove described and fifty per centum of all royalties whether in kind or money.' The words 'rentals' and 'royalties' have some significance and indicate the grantors intended that the grantees execute any lease that they desired.
This suit was begun by a bill in equity filed by appellees seeking a declaratory judgment in respect to the proper interpretation of certain deeds, and fixing their respective rights in the property. The bill sufficiently shows such an actual controversy as to support the jurisdiction of the court for such declaratory judgment. Title 7, section 156 et seq., Code, Act of October 9, 1947, General Acts 1947, page 444. There is no ground of demurrer which points out a deficiency in pleading or any reason why such declaratory judgment should not be rendered. It does not always follow that a decree which overrules a demurrer to such a bill is an authoritative declaration of the rights of the parties, which is proper only for a final decree.
The trial court properly overruled the demurrer to the bill, but in doing so interpreted the deeds in question as passing to the grantees the surface and mineral rights with the power to lease the same, and without declaring just what was the effect of the exception in the deeds, insofar as concerned the grantors.
It is not always appropriate to make construction of an instrument on a demurrer to the bill seeking a declaratory judgment (Alabama State Milk Control Board v Graham, 250 Ala. 49, 33 So.2d 11 ), and we do not perform such a task as a rule unless counsel for both sides have argued ...
To continue reading
Request your trial
-
Carter Oil Co. v. Blair
...to desire to have the matter considered by this court on the appeal from the ruling on demurrer, we may proceed to do so. McCall v. Nettles, 251 Ala. 349, 37 So.2d 635. It is complainant's contention that it is entitled to be refunded the use tax paid by it under protest on certain equipmen......
-
Curjel v. Ash, 1 Div. 631
...he is entitled to a declaration of rights at all. Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11; McCall v. Nettles, 251 Ala. 349, 37 So.2d 635; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So.2d 658; Percoff v. Solomon, 259 Ala. 482, 67 So.2d 31, 38 A.L.R.2......
-
Hickman v. City of Mobile, 1 Div. 436
...appeal from a ruling on demurrer. Alabama Ice & Utilities Co. v. City of Montgomery, 252 Ala. 131, 40 So.2d 198; McCall et al. v. Nettles et al., 251 Ala. 349, 37 So.2d 635; City of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So.2d 658, 660; Alabama State Milk Control Board v. Graham, 2......
-
Little v. Redditt
...of Bessemer v. Bessemer Theatres, 252 Ala. 117, 39 So.2d 658; Shadix v. City of Birmingham, 251 Ala. 610, 38 So.2d 851; McCall v. Nettles, 251 Ala. 349, 37 So.2d 635; Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11; Gilmer v. Gilmer, 245 Ala. 450, 17 So.2d 529; Anderson......