Pearne v. Coal Creek Min. & Manuf'G Co.

• Decision Date: 01 September 1891
• Citation: 18 S.W. 402
• Parties: PEARNE v. COAL CREEK MIN. & MANUF'G CO.
• Court: Tennessee Supreme Court

18 S.W. 402

PEARNE v. COAL CREEK MIN. & MANUF'G CO.

Supreme Court of Tennessee.

September Term, 1891.

Appeal from chancery court, Anderson county; HENRY R. GIBSON, Chancellor.

Bill by Thomas H. Pearne against the Coal Creek Mining & Manufacturing Company to remove cloud from title. From a decree of the chancellor both parties appeal. Modified.

Fowler & Roberts, for complainant Sanford & Lucky, for defendant.

CALDWELL, J.

This is a bill to remove an alleged cloud from the title to certain mineral interests in land, and to establish a right of way over and under the surface of adjacent land for the removal of the minerals. Defendant, by answer, denied that complainant was entitled to any relief at all. On final hearing the chancellor granted the prayer of the bill in part, and refused it in part. Both parties appealed specially.

In 1837 the state granted to Moore & Spessard a tract of land containing 2,000 acres, of which they conveyed 200 acres to Bullock, and subsequently 200 acres to Diggs. The conveyance to Diggs was made in 1855. It excepted and reserved to the grantors "the minerals of all the precious kinds." In 1859 Diggs conveyed to Vowell an undivided three-fourths of his 200-acre tract, "and one-half of the stone-coal of the whole tract," with its appurtenances, "except the minerals of all the precious kinds," which the grantor reserved to himself. Thereafter, in 1868, Vowell conveyed to Pearne, the complainant, "one-half the coal and minerals" in the said 200 acres, "except the minerals of all the precious kinds." Pearne brought this bill to assert, protect, and make available his right and title under the last-named deed. The conflicting claim of the defendant arises in a manner now to be stated. In 1859 Moore & Spessard conveyed to Birdseye the residue of their 2,000-acre grant, and by the same deed undertook to convey to him, also, "the minerals on" the 400 acres previously sold to Bullock and Diggs. Through several mesne conveyances the Coal Creek Mining & Manufacturing Company, the defendant, in 1872, acquired Birdseye's title, by virtue of which it claims to own all the minerals in the Diggs 200 acres. Complainant alleged that this claim was a cloud upon his title. The chancellor so adjudged, and by his decree canceled the deed to that extent. This part of the decree defendant assigns as error.

The chancellor was right. The deed to Diggs in 1855 passed to him full title to the land, "except the minerals of all the precious kinds;" and the later deed to Birdseye, though purporting and intending to pass title to all the minerals, was effective only as to "the minerals of all the precious kinds." Moore & Spessard reserved nothing else in their deed to Diggs, and consequently could pass nothing else to Birdseye, a subsequent vendee. The recital in their deed to Birdseye that they had not sold or conveyed "the minerals" to Diggs did not change the real facts of the transaction, and will not be considered to impair the title of Diggs and those claiming under him. A vendor may not prejudice the title of his vendee by subsequent statements against it, and much less can he divest an interest which he has conveyed by a recital in a subsequent deed that he did not convey it. It is true, as argued, that the language of the reservation is unusual, and cannot be said to have a technical meaning, yet we see no reason in that for the rejection of the word "precious," or for substituting in its place the word "various," so as to destroy the natural import of the words used, and make the reservation include all minerals. It is possible that the register, in transcribing the original deed, may have written the word "precious" erroneously for the word "various," thereby changing the reservation from "the minerals of all the various kinds" to "the minerals of all the precious kinds;" but there is absolutely no proof that such was the fact. The court cannot infer that such mistake was made. The loss of the original deed being shown, the certified copy is presumed to be strictly correct, in the absence of proof to the contrary.

The chancellor adjudged that complainant's deed gave him title to one-half of all the minerals in the Diggs tract of land, except those of "the precious kinds." The defendant assigns error on this part of the decree, and insists that, at most, complainant has title to one-half of the stone-coal only, and that the title to all the other minerals, not "of the precious kinds," is outstanding. The solution of this question depends upon a construction of certain descriptive language in the conveyances under and through which complainant asserts title. It has already been seen that Diggs received title to all the minerals except those of the "precious kinds." He conveyed to Vowell, by metes and bounds, "a certain tractor parcel of land containing 200 acres, more or less, three-fourths of the land, and one-half of the stone-coal of the whole tract, * * * with its appurtenances, except the minerals of all the precious kinds." Manifestly, this deed would have passed three-fourths of the 200 acres of land, surface and minerals, but for the limitation and exception as to the latter. Hence, it will be held to have passed everything not excluded by such limitation and exception. The exception was of the minerals of "the precious kinds" only, and the stone-coal conveyed was limited to one-half that contained in the whole tract. Nothing was said about the other minerals. Consequently, they passed with the land, as a part of it. This would not have been so, but the result would have been as contended by the defendant's counsel, had the conveyance been of three-fourths of the surface, instead of three-fourths of the land. That would have excluded all minerals except those expressly included. Vowell conveyed to complainant "one-half the coal and minerals" in the 200 acres of land, "except the minerals of all the precious kinds," which were reserved. This deed needs no construction. Its terms plainly give complainant title, not only to one-half the stone-coal, but also to one-half of all other minerals in the land, except those of "the precious kinds." The decree on this point is correct.

Passing from defendant's assignment of errors, complainant's objections to other parts of the decree will be stated and considered.

In 1848 the state granted to Richmond 5,000 acres of land, and to Wiley another 5,000 acres. The two tracts adjoined each other on one side, and together they embraced within their boundaries the whole of the 2,000 acres granted to Moore & Spessard 11 years before. The Coal Creek Mining & Manufacturing Company acquired title to both the Richmond and the Wiley tracts at or about the same time it became owner of Birdseye's title under Moore & Spessard. Thus the defendant became the owner of lands lying on three sides of the Diggs tract, and immediately adjoining it. Bullock's 200 acres bounds it on the other side. The...