Saulsberry v. Maddix, 8752

• Decision Date: 04 February 1942
• Docket Number: No. 8752,8768.,8752
• Citation: 125 F.2d 430
• Parties: SAULSBERRY v. MADDIX et al. MADDIX et al. v. SAULSBERRY.
• Court: U.S. Court of Appeals — Sixth Circuit

125 F.2d 430 (1942)

SAULSBERRY v.MADDIX et al.MADDIX et al. v.SAULSBERRY.

Nos. 8752, 8768.

Circuit Court of Appeals, Sixth Circuit.

February 4, 1942.

COPYRIGHT MATERIAL OMITTED

H. R. Dysard, of Ashland, Ky. (Dysard & Dysard, of Ashland, Ky., on the brief), for E. L. Saulsberry, appellant and cross-appellee.

H. R. Wilhoit, of Grayson, Ky., for F. M. Maddix et al., appellees and cross-appellants.

Before ALLEN, HAMILTON, and MARTIN, Circuit Judges.

HAMILTON, Circuit Judge.

These appeals involve (1) the applicability of an exception narrowing and limiting the words of a deed from appellant, E. L. Saulsberry, in No. 8752 to appellee's predecessors in title, and (2) whether a deed from Mary Huntsman Griffith to appellant in No. 8752 was void because of champerty.

The facts are not in dispute and are substantially as follows:

In 1880, John R. Huntsman died intestate and left surviving him, his widow and six children, James, George, William, Franklin, Robert and Margaret Huntsman(Maddix).There was set aside out of his landed estate which was located in Kentucky, 154 acres as dower.In this record the actual survey shows there was in fact set aside only 152.5 acres.

In 1891, James Huntsman conveyed his undivided one-sixth interest in the dower tract to William Saulsberry and in 1899 this land passed by will to appellant, E. L. Saulsberry.In 1892, William Huntsman conveyed his one-sixth undivided interest to A. D. Saulsberry.In 1892, Margaret Maddix conveyed her one-sixth undivided interest to William Saulsberry.Sometime later one-sixth was reconveyed to her, the deed not shown in the record, and her interest of 38 acres was carved out of the whole tract and located in its southeast corner.In 1898, George Huntsman conveyed his one-sixth undivided interest to P. F. Maddix, who conveyed it to appellantE. L. Saulsberry in 1904.In 1898, Robert Huntsman conveyed his undivided one-sixth interest to Harry and Ray Saulsberry jointly and in 1901Ray Saulsberry conveyed his one-twelfth interest to appellant, E. L. Saulsberry.Franklin Huntsman died intestate and his one-sixth undivided interest passed to his mother, Mary Huntsman Griffith.In 1908, Harry Saulsberry conveyed his undivided one-twelfth interest to A. D. Saulsberry, who conveyed it to appellant, E. L. Saulsberry, 1930.On December 16, 1938, Mary Huntsman Griffith conveyed all of her interest in the land including that inherited from her son, Franklin, to appellantE. L. Saulsberry.

On May 15, 1908, appellantE. L. Saulsberry and A. D. Saulsberry, who owned one-sixth of the dower tract, conveyed to appellee and cross-appellant, F. M. Maddix and E. T. and Wes Maddix, two tracts of land which were described in the deed by metes and bounds.

Immediately following the description of the first tract mentioned in the deed, which was the Huntsman dower tract, two exceptions were stated excluding from the conveyance two tracts of land each described by metes and bounds.Immediately following these exceptions the second tract of land conveyed was described by metes and bounds and immediately following its description there was stated the alleged source of title of the grantors to each of the tracts conveyed, following which there was an exception in the following language:

"There is reserved however and not herein conveyed all of the fire clay and other minerals on the foregoing described land lying below the level of the top of the rock cliff on the line of said land at Falls Smith branch, together with the right to remove said minerals from said land and to enter thereon for the purpose of making surveys of same."

E. T. and Wes Maddix conveyed their undivided two-thirds interest in the lands described to appellee and cross-appellant, F. M. Maddix who has been in continuous possession thereof since 1908E. L. Saulsberry, appellant and cross-appellee, on November 4, 1938, instituted this action for a trespass committed on the lands by the removal of minerals by F. M. Maddix, appellee and cross-appellant, and his lessees.Maddix answered contending (1) that the exception in the deed was void and that he had acquired title by adverse possession, (2) that the exception, if valid, applied only to the tract of land described immediately preceding the exception in the deed and not to the tract of land first described therein, (3) that the deed from Mary Huntsman Griffith was void because of champerty.The cause was submitted to the court for summary judgment on the pleadings.It found the exception valid and applicable to each tract of land described in the deed and also that appellee and cross-appellant, F. M. Maddix, had not acquired title to the minerals by adverse possession.It also found that the deed from Mary Huntsman Griffith to appellant and cross-appellee, F. M. Maddix, was void because of champerty.Both parties have appealed from this decree and urge on us the same issues presented below.

On May 15, 1908, the date of the deed in question, E. L. Saulsberry, appellant in No. 8752, and A. D. Saulsberry owned an undivided seven-twelfths interest in the dower tract of land described in the deed.According to the recitals of the deed they owned this entire tract and conveyed it all, excluding the exceptions, to appellee Maddix and his co-grantees.Appellee, F. M. Maddix, in No. 8768, urges on us that the exception in question was void under the rule that one holding an undivided interest in realty cannot create a new and different tenancy in common between his co-tenants and others in distinct parts of the common estate and cites in support of this contention the case of Adam v. Briggs Iron Company, 7 Cush. 361, 61 Mass. 361.The rule laid down in the cited case applies exclusively to controversies between co-tenants and has no application to transactions inter alios.It is clear that a co-tenant may deal with strangers as he will insofar as his own undivided moiety is concerned.In the case of Ball v. Clark, Trustee, 150 Ky. 383, 150 S.W. 359, 360, the court had before it the same question and answered it as follows:

"It is settled in Kentucky, in the case of Kincaid v. McGowan et al., 88 Ky. 91, 4 S. W. 802, 13 L.R.A. 289, and Stuart, Trustee, v. Commonwealth, 94 Ky. 595, 23 S.W. 367, that the surface ownership of land may be in one man and of the minerals in another; that both in such a case are landholders; that the owner of land may convey the surface to one and reserve to himself an estate in fee in the minerals, or vice versa, or may convey the surface to one and the minerals to another; that the effect of such a conveyance will be to create an estate separate and distinct in the sundered properties, the one from the other, entire and complete in fee simple.The deed, therefore, from Andrew Ball to Clark, trustee, is entirely valid inter partes."

The exception in the present deed as between the parties was valid and is enforceable, Laws v. Sturgill, 287 Ky. 37, 41, 151 S.W.2d 423.

A conveyance to a stranger to title by one co-tenant by an instrument purporting to pass the entire title in severalty and not merely such co-tenant's individual interest followed by an entry into open and exclusive possession by such stranger under claim of ownership and severalty, amounts to a disseisin of the other co-tenants, which if continued for the statutory period will ripen into good title by adverse possession.Greenhill v. Biggs, 85 Ky. 155, 2 S.W. 774, 7 Am.St.Rep. 579.Under this rule, appellee Maddix claims he has acquired by adverse possession, a three-twelfths undivided interest in the dower tract; in other words, he contends that the grantors in the deed while pretending to convey the whole of this tract only owned a seven-twelfths undivided interest therein and that two-twelfths had been carved out of the dower tract for Margaret Maddix, leaving paper title outstanding of three-twelfths of the whole to owners other than the grantors which interest he had acquired by unbroken adverse possession for a period of more than fifteen years.

The rule prevails in Kentucky that prior to a severance, mineral lands form no exception to the general rule that the title of the owner of real property includes not only the surface thereof, but also that which lies beneath and above it; therefore, an adverse possession to the surface of mineral lands before severance may ripen into title to the minerals as well as the surface.J. B. Gathright Land Company v. Begley, 200 Ky. 808, 255 S.W. 837.However, where there is a conveyance of a fractional undivided interest in the minerals, or a conveyance of lands excepting a fractional interest in them, a severance of the mineral estate from the surface estate is affected and where such severance has occurred, the possession of the surface does not carry with it the possession of the minerals under the surface.Severance creates separate estates, which are held by separate and distinct titles, each being incapable of possession by the mere occupancy of the other.This is true even if the instrument constituting color of title purports to convey the entire property.Prewitt v. Bull, 234 Ky. 18, 278 S.W.2d 399;Franklin Fluorspar Company v. Hosick, 239 Ky. 454, 39 S.W.2d 665;Scott v. Laws, 185 Ky. 440, 215 S.W. 81, 13 A.L. R. 369;Farnsworth v. Barrett, 146 Ky. 556.

Assuming that the exception in the deed includes the dower tract, appelleeP. M. Maddix, has not had actual possession sufficient to oust the owners of the fire clay and other minerals of their title.His possession of the land from which the title to the minerals thereunder has been severed by the exception, does not give him possession of the underlying minerals.Although he acquired the surface and all other strata, he does not own the minerals described in the exception and his possession of the surface cannot be constructively extended to them.He can take possession only by actually and openly mining the minerals for more than the statutory period...