Pettis v. Brown

• Decision Date: 23 February 1948
• Docket Number: 36676.
• Court: Mississippi Supreme Court
• Parties: PETTIS et al. v. BROWN et al.

33 So.2d 809

203 Miss. 292

PETTIS et al. v. BROWN et al.

No. 36676.

Supreme Court of Mississippi

February 23, 1948

G H. Merrell, of Collins, for appellants.

Hugh McIntosh, of Collins, for appellees.

SYDNEY SMITH, Chief Justice.

This is a suit in equity by the appellants to cancel the claims of the appellees to the minerals in the land described in the bill of complaint. Two grounds therefor are alleged: Under one of which the appellants claim title to all of the minerals in the land, and under the other to one-half thereof. A demurrer to this bill of complaint, styled a special demurrer but which was in fact a general demurrer was sustained and an appeal granted to this Court.

Among other things, the bill of complaint alleges in substance that on October 5, 1927, the appellants executed a deed to E. D Easterling to the land described in the bill of complaint and that on November 1, 1930, Easterling executed a warranty deed to them 'to all oil, gas and minerals in said land.' In 1932 the land was assessed for ad valorem taxes but the minerals therein were not separately assessed; the taxes on the land not being paid it was sold by the sheriff to the State for the taxes thereon in 1933. On September 1, 1936, R L. Windham received a patent therefor from the State and on November 4, 1936, he executed a deed thereto to E. D Easterling reserving one-half of all oil, gas and minerals in the land. On December 16, 1942, Easterling executed a deed to the land to Carl Brown, reciting therein that one-half of all oil, gas and minerals had been reserved by R. L. Windham.

The bill further alleges in substance that the sale of the land to the State for taxes did not carry with it the minerals therein for the reason that these minerals were owned by the appellants and should have been separately assessed. The Court below correctly held to the contrary in full accord with Stern v. Parker, Miss., 25 So.2d 787, and 27 So.2d 402.

The bill of complaint further alleged that the title acquired by Easterling from Windham to one-half of the minerals in the land inured to the benefit of the complainants because of the warranty deed which Easterling had executed to them in November 1930. This claim, by sustaining the demurrer thereto, the Court below declined to allow.

The rule here invoked by the appellants is that 'which precludes a party to a deed and his privies from asserting as against the other and his...