Moorer v. Bethlehem Baptist Church, 1 Div. 800

• Decision Date: 25 May 1961
• Docket Number: 1 Div. 800
• Citation: 130 So.2d 367,272 Ala. 259
• Parties: M. L. MOORER et al. v. BETHLEHEM BAPTIST CHURCH and Pilgrim's Rest Cemetery, Inc.
• Court: Alabama Supreme Court

Page 367

130 So.2d 367

272 Ala. 259

M. L. MOORER et al. v. BETHLEHEM BAPTIST CHURCH and Pilgrim's Rest Cemetery, Inc.

1 Div. 800.

Supreme Court of Alabama.

May 25, 1961.

McCorvey, Turner, Johnstone, Adams & May and Hamilton, Denniston, Butler & Riddick, Mobile, for appellants.

Armbrecht, Jackson, McConnell & Demouy, Mobile, for appellee.

COLEMAN, Justice.

This an appeal from a decree overruling demurrers to a statutory bill to quiet title.

Complainant is a corporation. Respondents are one corporation and three natural persons. In pertinent part the bill avers as follows:

'2. That your Complainant is in peaceable possession of the following described real estate situated in Mobile County, Alabama, claiming to own the said real estate in its own right in fee simple * * *.

'(Description Omitted)

'3. That complainant acknowledges that both complainant and its predecessors in interest in the lands hereinabove described, executed and delivered to George Gardiner Green those certain Oil and Gas Leases recorded in Deed Book 653 at Page 261 and Deed Book 713 at Page 238 in the records of the Office of the Judge of the Probate Court of Mobile County, Alabama and Complainant does not challenge the force and effect of any assignments, transfers or conveyances of said leases or any interest therein by the said George Gardiner Green.' (Par. added.)

The leases referred to in paragraph 3 are not attached to the bill as exhibits, nor does the bill in anywise disclose the contents of the leases.

Respondents (appellants) argue that the averments of paragraph 3 show outstanding oil and gas leases executed by complainant and its predecessors in title whereby the oil and gas interest has been severed from the surface and conveyed or transferred to the oil and gas lessee, so that the bill shows on its face that complainant is not in possession of the oil and gas interest in the land. As a result, say respondents, the bill fails to show that complainant is in possession of the oil and gas interest, and, because the bill seeks to quiet title to the entire interest in the land, which includes the oil and gas, complainant cannot maintain the bill to quiet title to that interest of which complainant does not aver peaceable possession.

Complainant (appellee) contends that an oil and gas lease does not sever the estate in the oil and gas from the estate in the surface, but like any ordinary lease places lessee in possession as tenant; and, in such case the possession of the oil and gas lessee is the possession of his lessor. Consequently, says complainant, the averments of the bill do show that complainant is in possession of the oil and gas and complainant is entitled to maintain the bill to quiet title to the entire interest in the land without joining the lessee as a party complainant.

Respondents contend that the allegations of the bill as to possession and ownership of the fee are followed by allegations showing that complainant had executed oil and gas leases to Green who is not a party to this suit, and the effect of the latter allegation is to negative the allegation of possession of he entire fee in complainant, and thereby to preclude the bringing of a bill to quiet title to the whole fee simple interest by the complainant alone.

Complainant states in brief that the question presented by the demurrer is essentially one involving the non-joinder of necessary parties complainant. Complainant says it is erroneous to suppose that an oil and gas lessee is an indispensable party complainant to a bill to quiet title brought by the lessor.

It thus becomes apparent that respondents seek to have us decide that oil and gas leases, including the particular oil and gas leases referred to in the bill, sever the oil and gas estate from the surface and convey the oil and gas as a separate estate to the lessee. In essence, respondents seek a construction and declaration of the effect of these particular leases. Apparently, complainant also seeks a construction of the leases, although it seeks a construction opposite in effect to that sought by respondents.

In undertaking to construe these leases we are faced at the outset with the fact that the leases are not before us. We do not know what language the leases contain.

With reference to the nature of the interest created in the lessee by a coal mining lease, this court said:

' * * * The authorities cited herein clearly show that the question of what estate or interest is granted in these mining contracts is not to be settled by any one particular rule, but that every such instrument is to be construed like any other contract--by its own terms to carry out the intent of the parties. * * *.' State v. Roden Coal Co., 197 Ala. 407, 415, 416, 73 So. 5, 9.

So in the instant case, the nature of the interest of the lessee, Green, must be determined by the terms of the leases.

We are of opinion that we would be wholly unjustified in presuming to interpret the contents of an oil and gas lease which is not before us. It would probably be unrealistic to say that we are wholly ignorant to the general terms of such instruments, but here the parties seek a determination of the nature and extent of the rights acquired by one of the parties to the contract, which party is not a party to this suit in which the nature of his rights is to be determined. The customs, usages, and course of dealings in a business may sometimes be looked to in a similar business to explain or aid in the interpretation or construction of a contract, but it is is settled in Alabama that custom or usage cannot be looked to to prove or establish a contract. City Mortgage & Discount Co. v. Palatine Insurance Co., 226 Ala. 179, 181, 145 So. 490. Other than by taking judicial notice of the customs and usages of the oil industry, there is nothing before us whereby we can learn the contents of the oil and gas leases allegedly executed to Green as lessee. We are of opinion that we cannot extend judicial knowledge to apprise us as to what the leases recite, and being without knowledge of the terms and provisions of the leases we cannot decide whether they do or do not sever the oil and gas estate from the estate in the surfac.

Complainant insists that an oil and gas lease does not convey ownership of the oil and gas to the lessee but merely grants a right to explore for and remove the same, citing among other cases, Sun Oil Co. v. Oswell, 258 Ala. 326, 62 So.2d 783. Statements to that effect do appear in the opinions cited. It is to be noted, however, that in the Oswell case, the lease was set out in the pleadings, which was not done here.

Complainant relies on Miller v. Woodard, 207 Ala. 318, 93 So. 28, 29, as holding that the averment that complainant had executed oil and gas leases on the land did not contradict the averment that complainant was in possession. With respect to the averment of complainant's possession, the opinion points out that possession is not the equivalent of peaceable possession, but says 'No specific ground of demurrer challenged the bill for this failure of averment.' We do not understand the case to hold that the averment of possession was sufficient. It does appear to hold that the averment of nonperformance by respondent was sufficient to show the right of complainant to have a forfeiture of the lease. Moreover, the leases were made exhibits to the bill.

We are thus remitted to deciding whether the allegations of paragraph 3 of the bill, when considered on demurrer, negative the averment in paragraph 2 that 'Complainant is in peaceable possession' of the land in suit.

It is essential to the equity of the bill that its allegations show that complainant is in possession of the interest, whether it be the mineral or the surface rights, the title to which it seeks to quiet. Federal Land Bank of New Orleans v. Vinson, 246 Ala. 95, 18 So.2d 865.

On demurrer, pleadings must be construed most strongly against the pleader, and if the pleading in question is susceptible of two constructions, one of which would render it good and the other bad, the latter must be indulged, because it is the one against the pleader. Puckett v. Puckett, 174 Ala. 315, 319, 56 So. 585, 586.

To maintain a bill to quiet title, possession, actual or constructive, is essential and must be definitely and unequivocally averred. Hobson v. Robertson, 224 Ala. 49, 138 So. 548. A complainant not...