Oldham v. Fortner, 39289

• Decision Date: 11 October 1954
• Docket Number: No. 39289,39289
• Citation: 221 Miss. 732,74 So.2d 824
• Parties: Samuel E. OLDHAM et al. v. W. V. FORTNER et al.
• Court: Mississippi Supreme Court

Page 824

74 So.2d 824

221 Miss. 732

Samuel E. OLDHAM et al. v. W. V. FORTNER et al.

No. 39289.

Supreme Court of Mississippi.

Oct. 11, 1954.

Barron C. Ricketts, Jackson, for appellant.

Livingston & Fair, Louisville, for appellee.

KYLE, Justice.

This case is before us on appeal by Samuel E. Oldham and John C. Oldham, defendants in the court below from a decree of the Chancery Court of Choctaw County rendered in favor of W. V. Fortner and C. P. Fortner, complainants, confirming the title of the complainants in and to the oil, gas and mineral rights in 403.58 acres of land in Choctaw County, and cancelling the mineral deed to the appellants executed by their father on June 9, 1942.

The record shows that J. H. Oldham, on June 9, 1942, executed and delivered to Samuel E. Oldham and John C. Oldham a mineral right and royalty transfer deed, in which the grantor sold and conveyed to the grantees 'an undivided _____ (_____) interest in and to all of the oil, gas and other minerals of every kind and character' in, on or under certain tracts of land in Choctaw County therein described, containing 410 acres, less 6.42 acres theretofore conveyed to the U. S. Government for canal right of way, leaving 403.58 acres, more or less. On August 11, 1942, J. H. Oldham executed and delivered to W. L. Bell a deed of conveyance of the above described 410 acres of land, 'except 6.42 acres, more or less, for drainage canal right of way, and except all minerals and mineral rights, heretofore sold and conveyed, and containing in all Four Hundred Three and 58/100 of an acre, more or less.'

The appellees thereafter acquired title to the above described lands by mesne conveyances from W. L. Bell and subsequent grantees claiming title under him.

The bill of complaint in this cause was filed by the appellees on October 28, 1952. An amended bill was filed on May 4, 1953. In their original and amended bills of complaint the complainants alleged that they were the sole owners of the above described 403.58 acres of land and all minerals thereon; that the above mentioned mineral deed executed by J. H. Oldham to the defendants on June 9, 1942, was void and of no effect because of the vagueness and uncertainty of the description of the mineral interest attempted to be conveyed therein; and that complainants were entitled to have the same cancelled. The complainants asked that said mineral deed be cancelled, and that their title to said lands, including all oil, gas and minerals on said land, be quieted and confirmed. The defendants filed an answer and a general demurrer to the amended bill. In their answer the defendants denied that the complainants were the sole owners of the above described lands and all minerals thereon. The defendants averred that tiel to said minerals was vested in them; and the defendants denied that the complainants were entitled to have their title quieted or confirmed as to the oil, gas and mineral rights in said lands. The demurrer was overruled at the September 1953 term of the court, and the cause was heard upon its merits.

The complainants offered in evidence the mineral deed from J. H. Oldham to Samuel E. Oldham and John C. Oldham, dated June 9, 1942, and also the deed from J. H. Oldham to W. L. Bell, dated August 11, 1942, in which J. H. Oldham conveyed to Bell the above described 410 acres of land, 'except 6.42 acres more or less for drainage canal right of way, and except all minerals and mineral rights, heretofore sold and conveyed, and containing in all four hundred three acres and 58/100 of an acre, more or less'; also a deed from W. L. Bell to John Albert Smith, dated January 26, 1943, in which Bell conveyed to John Albert Smith the above described 403.58 acres of land, 'except all minerals and mineral rights, heretofore sold and conveyed'; also a deed from John Albert Smith to Jim Ab Smith dated August 1, 1944, in which John Albert Smith conveyed to Jim Ab Smith the above mentioned 403.58 acres of land, 'except all minerals and mineral rights heretofore sold and conveyed'; also a deed from J. A. Smith to J. I. Love and W. V. Fortner signed and delivered on August 21, 1948, in which J. A. Smith conveyed to J. I. Love and W. V. Fortner the above described 403.58 acres of land, 'except all mineral rights in and to the above described land'; also a deed from J. I. Love to W. V. Fortner dated March 12, 1951, in which Love conveyed to Fortner his undivided one-half interest in said land; (not including, however, the SE 1/4 and the SE 1/4 of the SW 1/4 of Section 11); also a deed from W. V. Fortner to C. P. Fortner dated July 22, 1952, in which W. V. Fortner conveyed to C. P. Fortner an undivided one-half interest in the above described 403.58 acres of land; also deed of release and quitclaim from John Albert Smith and Jim Ab Smith to C. P. Fortner and W. V. Fortner dated September 29, 1952, in which the grantors released and quitclaimed to the grantees the above mentioned 403.58 acres of land, 'excepting therefrom the undivided interest in and to all oil, gas and other minerals of every kind and character in or under the said land J. H. Oldham conveyed to Samuel C. Oldham and John C. Oldham on the 9th day of June, 1942, by instrument recorded in Oil and Gas Book 1, at page 56, in the office of the Chancery Clerk of Choctaw County, State of Mississippi.'

Samuel E. Oldham, testifying on behalf of the defendants, stated that he was a son of the late J. H. Oldham and a brother of John C. Oldham, his co-defendant. The witness then identified the original mineral deed executed by J. H. Oldham to Samuel E. Oldham and John C. Oldham on June 9, 1942, and the mineral deed was offered in evidence. He stated that after the execution of said instrument he paid the ad valorem taxes on the minerals on said land, and identified the ad valorem tax receipts for the years 1946 and 1947. He stated that he had also filed an application for ad valorem tax exemption on the oil, gas and other mineral interests created prior to June 10, 1946, and had paid the mineral documentary tax required under House Bill No. 868, Laws of Mississippi Regular Session 1946, and offered in evidence a receipt signed by the chancery clerk showing payment of the mineral documentary tax.

The chancellor held that the mineral deed executed by J. H. Oldham to Samuel E. Oldham and John C. Oldham on June 9, 1942, was void 'for want of any description as to what was being conveyed.' The chancellor held that since the mineral deed was void, all of the other reservations contained in the successive deeds were void for want of description of the minerals reserved, and that the complainants were the owners of a fee simple title to the lands which included the minerals. A decree was accordingly entered cancelling the mineral deed and vesting title to the minerals in the complainants, W. V. Fortner and C. P. Fortner, and confirming said title.

The appellants argue only two points as ground for reversal of the decree of the lower court, first, that the chancellor erred in overruling the demurrer filed by the defendants to the amended bill of complaint, and, second that the chancellor erred in holding that the complainants were the owners of the oil, gas and mineral rights in the above mentioned 403.58 acres of land.

In view of the conclusions that we have reached on the merits of the case, it is not necessary that we consider at this time the chancellor's ruling on the demurrer.

We think that the chancellor erred in holding that the complainants were the owners of the oil, gas and mineral rights in the lands. The complainants' deraignment of title showed that their claim of ownership rested upon the deed executed by J. H. Oldham to W. L. Bell on August 11, 1942. In that deed the grantor expressly excepted 'all minerals and mineral rights, heretofore sold and conveyed.' The same...