Outlaw v. Gray

• Decision Date: 22 October 1913
• Citation: 163 N. C. 325,79 S.E. 676
• Parties: OUTLAW. v. GRAY.
• Court: North Carolina Supreme Court

79 S.E. 676

(163 N. C. 325)

OUTLAW.

v.GRAY.

Supreme Court of North Carolina.

Oct. 22, 1913.

1. Mines and Minerals (§ 55*)—Conveyance— Construction.

An indenture under seal granting on a stated consideration all of the marl and fossil deposits under the grantor's land, to the grantee, his heirs and assigns, together with the right to enter and remove the same, is a conveyance in fee, and is not a mere temporary license revocable at the will of the grantor, and hence the right to remove the marl and other deposits passes to the executors and representatives of the grantee.

[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 153-165; Dec. Dig. § 55.*]

2. Deeds (§ 90*)—Construction.

A deed should be construed most favorably to the grantee.

[Ed. Note.—For other cases, see Deeds, Cent Dig. §§ 234-237, 247, 248; Dec. Dig. § 90.*]

3. Mines and Minerals (§ 55*)—Conveyance.

The minerals beneath the surface of land may be conveyed in fee separate from the surface of the land.

[Ed. Note.—For other cases, see Mines and Minerals, Cent. Dig. §§ 153-165; Dec. Dig. § 55.*]

Clark, C. J., and Hoke, J., dissenting.

Appeal from Superior Court, Lenoir County; Allen, Judge.

Action by F. P. Outlaw against M. E. Gray. From a judgment for plaintiff, defendant appeals. Reversed.

Loftin & Dawson and G. V. Cowper, all of Kinston, for appellant.

Rouse & Land, of Kinston, for appellee.

BROWN, J. The case turns upon the construction of an indenture from Julia E. Grayto M. E. Gray, the material part of which is as follows: "That said party of the first part for and in consideration of the sum of ten dollars ($10.00) to her in hand paid by the said party of the second part, receipt of winch is hereby fully acknowledged, the said party of the first part hath given, granted, bargained, and sold, and by these presents do give, grant, bargain, sell, and convey unto the party of the second part, his heirs, executors, administrators, and assigns, the right of entering in and upon the lands hereinafter described for the purpose of searching for all marl deposits and fossil substance, and for taking and removing therefrom said marl and fossil substance, which he may find imbedded in the earth of the said lands, and for mining and quarrying operations for that purpose to any extent he may deem advisable, but not to hold possession of any part of the said lands for any other purpose whatsoever." Here follows a description of the lands and a covenant that no other consideration by way of rent is to be paid for the marl except that recited in the deed, and a clause wherein the grantee covenants that "no damage shall be done to said lands other than shall be necessary in conducting the operations specified." The instrument is under seal.

The plaintiffs contend that the written instrument is a mere license to quarry for marl and fossil substances in the earth and that it expired with the death of the grantor. His honor so held. The defendant contends it is a deed in fee and that it conveys in fee simple all "marl deposits and fossil substances" under the surface of the land described in the instrument under a covenant upon the part of the grantee that no damage shall be done the land other than shall be necessary to remove such deposits.

The character of the instrument and the language employed are both appropriate to the conveyance of a fee-simple estate in "all the marl deposits and fossil substances" imbedded in the earth of the lands described therein, and such is the legal construction we put upon it It must be admitted that the deed is sufficient in form to convey a fee in the land itself had that been the subject of...