Mueller v. Stangeland, 10493
| Decision Date | 22 November 1983 |
| Docket Number | No. 10493,10493 |
| Citation | 340 N.W.2d 450 |
| Parties | Irene MUELLER, f/k/a Irene Kellar, Eldon Kellar, Lois A. Luke, f/k/a Lois A. Kellar, and Beverly I. Solberg, f/k/a Beverly I. Kellar, Plaintiffs and Appellants, v. Arnold K. STANGELAND, Thomas M. Stangeland, Mary Cecila Stangeland, Defendants and Appellees, Consolidated Coal Company, Texas Gas and Exploration Corp., Federal Land Bank of Saint Paul, and all persons unknown claiming any estate or interest in or lien or encumbrance on the property described in the Complaint, Defendants. Civ. |
| Court | North Dakota Supreme Court |
William S. Murray, Bismarck, for plaintiffs and appellants; argued by William S. Murray, Bismarck.
Rolfstad, Winkjer, McKennett, Kaiser, Stenehjem & Walters, Williston, for appellees; argued by Dean Winkjer, Williston.
The issue in this appeal from a judgment in a quiet title action is whether or not a deed excepted or reserved a mineral interest in the grantor. The trial court concluded that the deed provision in question was an exception to the warranty and not a reservation of minerals. Judgment was entered in favor of the Stangelands. We affirm.
By warranty deed, Michael S. Kellar did "GRANT, BARGAIN, SELL AND CONVEY" unto Arnold K. Stangeland and Thomas M. Stangeland certain real property in 1944. The granting clause contained no language excepting or reserving any minerals. The description of the property conveyed was immediately succeeded by the following language:
"TO HAVE AND TO HOLD THE SAME, Together with all the hereditaments and appurtenances thereunto belonging or in anywise appertaining to the said parties of the second part, their heirs and assigns, FOREVER. And the said Michael S. Keller, a widower, party of the first part, for himself, his heirs, executors and administrators, does covenant with the parties of the second part, their heirs and assigns, that he is well seized in fee of land, real estate and premises aforesaid, and has good right to sell and convey the same in manner and form aforesaid; that the same are free from all incumbrances, except a mortgage to the Federal Land Bank, the payment of which the parties of the second part assume.
The Vendor rserves [sic] for the State of North Dakota five percentum (5%) of all oil, natural gas and minerals which may be found on or underlying the North half of the Northwest quarter (N 1/2NW 1/4) of section Twelve (12) above described. The Vendor excepts from this Contract all minerals, including oil and gas, and all mineral rights not now owned by the Vendor as disclosed by the records in the office of the Register of Deeds of said County.
and the above bargained and granted land and premises in the quiet and peaceable possession of said parties of the second part, their heirs and assigns against all persons lawfully claiming or to claim the whole or any part thereof, the said party of the first part will warrant and defend."
The underscored language, and the sentence immediately preceding it, was typed in a blank space on the printed deed form. The heirs of Michael Kellar contend that the underscored language excepted or reserved unto Michael Kellar all of the minerals other than 5% reserved to the State of North Dakota in a portion of the land conveyed.
The primary purpose in construing a deed is to ascertain and effectuate the intent of the grantor. Malloy v. Boettcher, 334 N.W.2d 8, 9 (N.D.1983). Section 47-09-11, N.D.C.C., provides that grants of real property "shall be interpreted in like manner with contracts in general except so far as otherwise provided" in that chapter.
We therefore look to the rules for interpreting contracts provided by Chapter 9-07, N.D.C.C., to aid us in construing a deed. Summarized, Chapter 9-07, N.D.C.C., provides, among other things, that: (1) the language of a contract governs if it is clear and explicit and does not involve an absurdity (Sec. 9-07-02); (2) a contract must be interpreted to give effect to the mutual intention of the parties (Sec. 9-07-03); (3) the intention of the parties to a written contract is to be ascertained from the writing alone if possible (Sec. 9-07-04); (4) a contract is to be interpreted as a whole to give effect to every part (Sec. 9-07-06); (5) a contract may be explained by reference to the circumstances under which it was made (Sec. 9-07-12); and (6) in cases of uncertainty not otherwise removed, the language is to be interpreted most strongly against the party who caused the uncertainty to exist (Sec. 9-07-19).
While it is often difficult to distinguish between exceptions and reservations, both cause "something to be deducted from the thing granted, narrowing and limiting what would otherwise pass by the general words of the grant ... and ... the technical meaning will give way to the obvious intent, even though the technical term to the contrary was used." (Citations omitted). Christman v. Emineth, 212 N.W.2d 543, 552 (N.D.1973). Thus, an obvious intent to deduct something from the thing granted will be given effect, whichever word is used.
As noted in 1 H. Williams and C. Meyers, Oil and Gas Law Sec. 310.1, p. 578.11 (1981 Ed.), a construction problem in determining if an exception is intended to withhold minerals from the grant or to exclude minerals from the warranty "often arises where the first, last, and only mention of a mineral reservation or exception appears at the end of the deed, just following the warranty clause."
In the instant case, the language at issue appears not "just following the warranty clause" but within the warranty clause. Treating the phrase "including oil and gas," as a partial description of what is intended to be included within the term "minerals" 1, we believe that placement of the exception within the warranty clause and use of the words "excepts ... all minerals ... and all mineral rights not now owned by the Vendor " (emphasis added) is indicative of an intention to except from the warranty all minerals and mineral rights not owned, rather than an intention to except minerals owned from the grant and mineral rights not owned from the warranty.
Other considerations also impel us to conclude that the language used did not effectively except or reserve until Michael Kellar any minerals.
Royse v. Easter Seal Society for Crippled Children and Adults, Inc., 256 N.W.2d 542 (N.D.1977), is particularly instructive. There we said that "the language, if clear and explicit, will govern the interpretation of the deeds and that the parties' intentions are to...
To continue reading
Request your trial
-
North Shore, Inc. v. Wakefield
...(N.D.1977). Although a court may look to the circumstances under which a deed was made to explain ambiguous language, Mueller v. Stangeland, 340 N.W.2d 450 (N.D.1983), we have said that exceptions or reservations of property in a deed should be set forth with the same prominence as the prop......
-
Stracka v. Peterson, 10925
... ... We therefore conclude the trial court was correct in finding the deed ambiguous, Mueller v. Stangeland, 340 N.W.2d 450 (N.D.1983), and in allowing extrinsic evidence to ascertain Friday ... ...
-
Nichols v. Goughnour
...in 1955. [¶ 12] The primary purpose in construing a deed is to ascertain and effectuate the grantor's intent. Mueller v. Stangeland, 340 N.W.2d 450, 452 (N.D.1983). “However, deeds that convey mineral interests are subject to general rules governing contract interpretation, and we construe ......
-
Hallin v. Lyngstad
...meaning will give way to the obvious intent, even though the technical term to the contrary was used.” Id.; see also Mueller v. Stangeland, 340 N.W.2d 450, 452 (N.D.1983); Royse v. Easter Seal Soc'y, 256 N.W.2d 542, 545 (N.D.1977). [¶ 16] Lyngstads assert that the language in the deed excep......