Rogers v. Jones

• Decision Date: 21 April 1930
• Docket Number: No. 150.,150.
• Citation: 40 F.2d 333
• Parties: ROGERS v. JONES et al.
• Court: U.S. Court of Appeals — Tenth Circuit

40 F.2d 333 (1930)

ROGERS v. JONES et al.

No. 150.

Circuit Court of Appeals, Tenth Circuit.

April 21, 1930.

J. L. Hull, of Tulsa, Okl. (John Rogers and West, Gibson, Sherman, Davidson & Hull, all of Tulsa, Okl., on the brief), for appellant.

Geo. S. Ramsey, of Tulsa, Okl. (Edgar A. deMeules, Villard Martin, and Garrett Logan, all of Tulsa, Okl., W. W. Pryor, of Wewoka, Okl., and W. N. Stokes, of Oklahoma City, Okl., on the brief), for appellees.

Before LEWIS, COTTERAL, and McDERMOTT, Circuit Judges.

COTTERAL, Circuit Judge.

John L. Jones brought this suit to quiet his title to 120 acres of land, and particularly to remove as clouds upon his title an assignment of an undivided one-half interest in the oil and gas rights therein by Harry H. Rogers to Leslie Rogers, an assignment by the latter of an undivided one-fourth interest to W. G. Rogers, and an assignment by him of that interest to the Rogers Oil & Gas Company. These undivided fourth interests have been reconveyed to Leslie Rogers, and need not be further noticed.

The plaintiff deraigned his title to the land on May 8, 1917, directly by warranty deed from Ella Hinson. She had acquired the title in the preceding November by warranty deed from Harry H. Rogers. In his deed to her, however, there was an exception in the habendum clause which reads: "* * * Except party of the first part reserves one-half of all rentals and royalties due from oil leases on above described land and hereby conveys and transfers to party of the second part the other one-half of all rentals and royalties due from oil leases on above described premises."

On September 4, 1915, Harry H. Rogers had executed an oil and gas lease on the land to McMan Oil Company for a term of five years, but to continue as long as oil or gas should be produced from the land. That lease was never developed, and it was, after assignment to the Magnolia Petroleum Company, formally discharged of record, on September 18, 1920. The assignment in question by Harry H. Rogers to Leslie Rogers was dated August 23, 1926. In the following December the plaintiff executed an oil and gas lease to T. B. Slick, and he in turn has assigned that lease to Tom Slick, Inc., a corporation. On application of Leslie Rogers, that company was made a defendant and filed an answer and counterclaim in support of its lease.

The cause was tried upon the pleadings and evidence, resulting in a decree as prayed for the plaintiff and Tom Slick, Inc., all the issues being found in their favor.

The two questions involved in the case are, first, whether there was a reservation of one-half of the mineral interest in the land in the deed of Harry H. Rogers to Ella Hinson; and second, whether, as Leslie Rogers requests, the deed should be reformed so as to reserve that interest.

Counsel for the appellant stresses certain propositions. One of them is that a reservation of an income from an interest in land is a reservation of that interest itself, but it is unimportant, because of our conclusion that by the exception in the deed the income reserved was only that inuring from the lease to the McMan Oil Company.

There is no definite foundation for a construction favorable to appellant of the exception clause in the deed. It is conceded that by modern rule the intention of a grantor in a deed is properly ascertained from the entire instrument. The accepted rule in Oklahoma is to that effect, and should be followed by this court. 8 R. C. L. 101; Hubbird v. Goin (C. C. A.) 137 F. 822; 18 C. J. 256; 2 Devlin on Deeds, § 836; Smart v. Bassler, 101 Okl. 39, 223 P. 352. Counsel for appellant emphasize the fact that the word "leases" is used in the exception clause, and insists it must be taken as including future leases. But such was not the expression. The omission of the word "future" or any reference to leases of grantees is significant. A contrary meaning is drawn from the words, "due from oil leases on above described land"; that is, "due" and "on" the land. A construction that future leases were contemplated is not justified, without a clear reference to them and their terms and conditions. Surely, if that had been the meaning, it would have been so stated. There was no occasion for the use of more accurate language if the reference was to a lease theretofore executed. It is more reasonable to regard the exception as intended to apply to any outstanding lease of the land. We are convinced this is a proper construction of the deed on its face.

Besides, the rule is, a deed, if its language is doubtful, should be construed most strongly against the grantor, who controlled the execution of the instrument. Coley v. Williams, 98 Okl. 143, 224 P. 345; Rose v. Union Gas & Oil Co. (C. C. A.) 297 F. 16; Belch v. Schott, 171 Mo. App. 357, 157 S. W. 658; Lyon v. Dailey Copper, Mining & Smelting Co., 46 Mont. 108, 126 P. 931; 18 C. J. 344, 345; 8 R. C. L. 104; Towns v. Brown (Ky.) 114 S. W. 773. The rule adds force to a construction favorable to the appellee.

Parol evidence of the intention of the parties gathered from the circumstances and situation of the parties is admissible to explain a latent ambiguity in a deed. Graham v. National Surety Co. (C. C. A.) 244 F. 914; Roxana Petroleum Corporation v. Corn (C. C. A.) 28 F.(2d) 168; 8 R. C. L. 1041. Assuming that such evidence was competent in this case, we consider the facts which the evidence tends to establish.

Jones bought the land for full value, and did not know of an adverse claim, except from the deed and abstract of title, and did not learn Rogers claimed a mineral interest until June, 1927, after drilling was started. Rogers testified his intention was to reserve a one-half of the mineral interest. He directed Hyde, a banker and real estate dealer, to prepare a contract for a deed to Moore of the surface and one-half the mineral rights, and it was assigned by Moore to Hinson. Hyde claims...