Westcott v. Bozarth
| Decision Date | 01 November 1949 |
| Docket Number | 33456. |
| Citation | 211 P.2d 258,202 Okla. 149,1949 OK 237 |
| Parties | WESTCOTT v. BOZARTH et al. |
| Court | Oklahoma Supreme Court |
W. F Westcott sued E. L. Bozarth and Ethel L. Bozarth to quiet title, and defendants filed a cross-petition.
The District Court of Oklahoma County, Baker H. Malone, J rendered judgment for the defendants on their cross-petition and plaintiff appealed.
The Supreme Court, Welch, J., affirmed the judgment and held that the reservation of mineral rights appearing in the habendum clause of a deed would control over the granting clause where the intention of the grantor to create such a reservation was clearly expressed.
Syllabus by the Court
The reservation of mineral rights appearing in the habendum clause of a deed will control over the granting clause where the intention of the grantor to create such reservation is clearly expressed.
Brown & Verity, Cargill, Eagleton & Cargill, all of Oklahoma City for plaintiff in error.
Robinson, Shipp & Robertson, Oklahoma City, for defendants in error.
W. F. Westcott claimed to be the owner of the fee-simple title in and to all of blocks 8 to 10, inclusive, in May Dell Tracts Addition to Oklahoma City, and brought an action to quiet title thereto.
Defendants, E. L. Bozarth and Ethel L. Bozarth, claim to be the owners of 15/16th of the mineral rights therein and by way of cross-petition ask that the title in and to such interest be quieted in them.
The trial court denied plaintiff's claim and rendered judgment in favor of defendants on their cross-petition quieting title in them in and to the mineral interest claimed.
Plaintiff appeals and asserts that the judgment is contrary to law.
It appears that on the 23rd day of May, 1925, defendants, who it is stipulated were then the owners of the fee-simple title in and to said premises, by warranty deed conveyed the same to Laura Nunes Moore, and G. D. Moore. The granting clause of the deed conveys the full fee-simple estate. In the habendum clause of the deed immediately following the warranty clause appears the following exceptions: 'except 15/16 of all mineral rights reserved on Blocks Eight (8) Nine (9) Ten (10) in May Dell Tracts Addition to Oklahoma City, Oklahoma, as the same are shown on the recorded plat thereof.'
Thereafter and through subsequent conveyances plaintiff became the owner of the premises and was such owner at the time this action was commenced.
There is no dispute as to the facts, the only dispute between the parties is as to the construction which should be given to the exception appearing in the habendum clause of the deed. Defendants contend that such exception should be construed as reserving from the conveyance 15/16th of all the mineral rights in and to the premises conveyed. While plaintiff contends that the exception contained in the deed merely excepted 15/16th of the minerals from the covenant of warranty. In support of such contention her relies on Echolustee Oil Co. v. Johnston, 153 Okl. 92, 3 P.2d 227; and Jarrett v. Moore, 159 Okl. 93, 14 P.2d 390.
In the Echolustee case we had under consideration the following exception appearing in the habendum clause of the deed [153 Okl. 92, 3 P.2d 228]: 'Except valid agricultural and oil and gas leases and 1919 taxes and except an undivided one-fourth interest in and to the oil and gas and other minerals in and under said land and the right to enter, prospect for and remove said minerals. * * *'
We there held that the language used in the exception could not be construed as reserving the minerals to the grantor, but should be construed as exempting them from the covenant of warranty. In that case we however said:
In the case of Jarrett v. Moore, supra, we had before us for consideration substantially the same form of exception and reached the same conclusion.
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...was repugnant to the grant and was therefore a nullity, but the better and more modern rule is the one followed in Westcott v. Bozarth, 202 Okl. 149, 211 P.2d 258, and quoted from Breidenthal v. Grooms, 161 Okl. 74, 17 P.2d 688, as 'Where the intention of the parties is clearly expressed by......
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CHAPTER 11 ASSIGNMENTS AND CONVEYANCES
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