Opinion
No. 36038.
February 11, 1946.
1. MINES AND MINERALS.
The refraining by grantee from foreclosing his second trustee's deed on tract and his placing of the tract in a pool and his joining in a drilling contract was sufficient consideration for grantor's execution of deed of oil, gas and minerals in the tract to the grantee.
2. MINES AND MINERALS.
The meaning of words in mineral deed must be determined in the light of the circumstances under which they were used.
3. DEEDS.
In construing a deed, the court must give effect to the intent of the parties if such can be done under recognized rules of construction.
4. DEEDS.
A deed will be construed to effectuate the manifest intention and purpose of the parties even though the deed is inartificially and untechnically drawn.
5. MINES AND MINERALS.
The words "acquit back" in mineral deed stating that grantor "acquits back" to grantee the grantor's one-half interest in royalty deed executed by grantor to grantee, vested in the grantee the title to such mineral rights as grantor had at time of execution of deed, where grantor had received his title from grantee and the expression was intended to reconvey such title.
6. MINES AND MINERALS.
A mineral deed providing that deed was to become effective only after grantee "executed" oil and gas lease and drilling contract, became effective when grantee signed lease and drilling contract and delivered them to escrow agent, notwithstanding that lease and contract were subsequently returned by escrow agent to grantee on default in drilling operations, where grantor and grantee contemplated when they signed deed that delivery in escrow was to be made and that actual delivery depended on performance of drilling contract.
7. DEEDS.
Where grantor prepared deed, doubtful questions should be construed favorably to the grantee.
APPEAL from the chancery court of Issaquena county, HON. FRANK E. EVERETT, Chancellor.
Elbert Johnson, of Indianola, Ernest Kellner, of Greenville, and Jones Ray, of Jackson, for appellant.
The instrument contains no apt words or conveyance and was inoperative to pass any title to the property described therein by reference.
If no words importing a grant can be found in the deed, it is void.
16 Am. Jur. 469, Sec. 49.
In order to pass title a deed must contain operative words sufficient to convey the interest of the person conveying it.
Hall v. Hall, 66 Miss. 35, 5 So. 523; Raley et al. v. Raley et al., 121 Miss. 555, 83 So. 740; Cook v. Farley et al., 195 Miss. 638, 15 So.2d 352; Sharp v. Bailey, 14 Iowa 387, 81 Am. Dec. 489; Brown v. Manter, 21 N.H. 528, 53 Am. Dec. 223; 8 R.C.L. 936, 937, Sec. 14.
The instrument contains the stipulation that it is to become effective only after W.R. Boykin has executed the oil and gas lease to one Fillingame on the lands, together with the drilling contract, and "other papers now prepared and being signed up to start drilling operations in a block of land," of which the land described in the bill is a part. The oil and gas lease stipulated to be executed to Fillingame was not executed to him, but an oil and gas lease was signed on December 2, 1941, in which B.B. Allen and others were parties of the first part and B.L. Fillingame and Joe Lazarov were parties of the second part, and delivered in escrow. None was ever executed to Fillingame, as stipulated, but assuming for the sake of argument that the oil and gas lease to Fillingame and Lazarov satisfied the conditions of the instrument first mentioned, still it was never executed as provided in the agreement between B.B. Allen and W.R. Boykin, but was delivered in escrow on certain conditions, which were not fulfilled, and then returned to H.C. Greer, Jr., the trustee, by the escrow agent, and by the trustee returned to W.R. Boykin, and so the instrument between Allen and Boykin never became effective because the oil and gas lease to Fillingame with the drilling contract and other papers mentioned therein were not executed. An escrow delivery was not sufficient to satisfy the terms of the agreement between Allen and Boykin. A delivery to a third person for the grantee will not be effectual unless it is made in such a way that the grantor parts with all control of the instrument.
18 C.J. 203, 204.
Where a deed is given to a third person to hold until the performance of some act by the grantee or the happening of some contingency, it does not operate as a delivery to the grantee.
Weisinger v. Cocke et al., 67 Miss. 511, 7 So. 495; Barner v. Lehr, 190 Miss. 77, 199 So. 273; 18 C.J. 206, Sec. 105(7).
The instrument contained the condition precedent that it should not become effective until the oil and gas lease, etc., had been executed, and it was never executed, and so for that additional reason the instrument between B.B. Allen and W.R. Boykin was of no effect.
18 C.J. 352, Sec. 367, p. 354, Secs. 368, 369.
Clements Clements, of Rolling Fork, for appellee.
The words "I hereby acquit back my undivided one-half interest," are sufficient to convey property.
Smith v. Winston 2 How. (3 Miss.) 601, 609; Gorden v. Haywood, 2 N.H. 402, 404; 16 Am. Jur. 469, Sec. 49; 35 Words Phrases (Per. Ed.), p. 664.
A deed will be construed according to the manifest intention and object of the parties, though it is inartificially and untechnically drawn.
Nixon's Heirs v. Carco's Heirs, 6 Cushman, 28 Miss. 414; Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Cresswell v. Cresswell, 164 Miss. 871, 144 So. 41.
The acknowledgment of a deed is no part of the deed and a deed is good between the parties without an acknowledgment.
Cannon v. Holburg Mercantile Co., 108 Miss. 102, 66 So. 400; Mallory v. Walton, 119 Miss. 396, 81 So. 113; Finch v. Tonner, 2 Miss. Dec. 209; Ingraham v. Grigg, 13 Smedes M. (21 Miss.) 22.
A description by reference to another deed in which the land is correctly described is good.
Dunn v. Stratton, supra; Leake v. Caffey (Miss.), 19 So. 716.
A voluntary deed is good without any consideration.
Longmire v. Mars, 124 Miss. 77, 86 So. 753.
But this deed contains a consideration expressed in it, as follows: "The same to become effective only after the said W.R. Boykin, has executed the oil and gas lease to one Fillingame, on said lands, together with the drilling contract, and all other papers now prepared and being signed up to start drilling operations in a block of land, of which this is a part." Mr. Boykin fully complied with the requirements of the deed, and complied with its entire objective by signing all papers and by delivering in escrow, which the appellant Mr. Allen was bound to have intended, because he was a party to the same agreement, and is bound thereby, and knew that this delivery was to be to the bank upon the conditions contained therein. Under such circumstances, this was an executed contract.
When agreement contemplates one party immediately, fully and completely complying with his entire obligation, and he does so immediately comply, and there remains nothing to be done by the other but payment of money pursuant to agreement, then the agreement has ceased to be "executory" in character and has become "executed."
Emerson v. Universal Products Co. (Del.), 162 A. 779, 781, 5 W.W. Harr, 277.
Mr. Boykin complied fully and completely with his part of the escrow agreement, and there was nothing left to be done by Fillingame but the beginning of operations on March 1, 1942, which he did not do. Therefore, so far as Mr. Boykin is concerned it was a closed deal and was up to Fillingame to complete by beginning his operation as set out in the escrow agreement, to which he was a party.
A deed delivered as an escrow does not, as a general rule, take effect until the last delivery; but, where justice demands it, equity will give it relation back and cause it to take effect from the date of its delivery as an escrow.
Whitfield v. Harris, 48 Miss. 710; Simpson v. McGlathery, 52 Miss. 723; Wood v. Morath, 128 Miss. 143, 90 So. 714.
This being true, Mr. Boykin complied with the terms set out in the quit claim deed from Mr. Allen to him, which is the deed in question in this case. He executed the papers and delivered them within the contemplation of the terms of the deed, as is clearly shown from all the evidence in this case, both documentary and oral. Now then, having done this, was that a sufficient consideration? We say it was, because the benefits flowed from him to Mr. Allen, who at that time held mineral interests under Mr. Boykin's land, and in addition thereto Mr. Boykin gave up a part of his holdings under the oil lease so signed.
Longmire v. Mars, supra; Miller v. Bank of Holly Springs, 131 Miss. 55, 95 So. 129, 31 A.L.R. 698.
The appellant provided a good and sufficient consideration for the deed in his own testimony, which is as follows: "Q. Now, if you were paid no consideration, as you testified, for that instrument, and the condition was not complied with, state to the court the circumstances under which that instrument was executed? A. Well, Mr. Boykin held a second lien — trust deed — against my client, Genola, which we had been unable to get him to renew, and it was past due, at eight per cent, and the only way we had to pay it was to get some oil activities started, and sell some royalties, and save him. We tried to get Mr. Boykin to renew that trust deed, and to execute this drilling contract so we could get something started, and he declined to carry on with us, until he got an "acquittance" as he expressed it from me. . . . And to save foreclosure of the property or loss of the property to Mr. Genola, — I signed this acquittance. Q. Now then, your intention then was to acquit it to him, according to your letter here? A. My intention was to keep him satisfied — to keep him from foreclosing the Genola — on the Genola second trust deed, and get him to go along with us on the carrying of the paper — Q. Let me ask you something else — you had royalty interests under the Genola land and under the Cole land? A. Yes. Q. And you were intensely interested in having Mr. Boykin sign this Fillingame lease, weren't you? Because it would enable you to perfect your interest in the oil lease on the Genola and the Cole lands — wouldn't it? A. Yes, but I didn't consider it, and don't now consider — if he had foreclosed on Genola, and taken it away from him — and he stated he wouldn't foreclose if I did this. Q. He didn't foreclose? A. No. Q. You say you saved Genola and Cole? A. They were all saved."
In explaining the consideration appellant created a perfect consideration for his deed.
July 23, 1940, appellee Boykin conveyed to appellant Allen and another a one-fourth undivided interest in the oil, gas and minerals in 4935 acres of land in Issaquena County, Mississippi.
December 4, 1941, Allen signed and delivered to Boykin the following written instrument:
"I, the undersigned, B.B. Allen, hereby acquit back to W.R. Boykin my undivided one-half interest in that certain Royalty deed executed by W.R. Boykin to myself and W. Calvin Wells, III, dated July 23, 1940, and of record in Book QQ at page 317, on file in the office of the Chancery Clerk of Issaquena County, Mississippi, covering the royalty in certain lands located in Issaquena County, Mississippi, the same to become effective only after the said W.R. Boykin, has executed the oil and gas lease to one Fillingame on said lands together with the drilling contract, and all other papers now prepared and being signed up to start drilling operations in a block of land, of which this is a part.
"Witness my signature, this the 4th day of December, 1941.
"B.B. Allen."
December 1, 1943, Boykin executed to the California Company a mineral lease on 1368 acres of said land.
May 29, 1944, Allen filed his bill in this cause seeking to set aside the instrument he executed to Boykin, copied above, and to recover from Boykin one-eighth of the money Boykin had received under the California lease, alleging, as grounds for relief, (1) that there was no consideration for the execution of said document, (2) that it contained no operative words of conveyance, and (3) that the condition on which it was to become effective, as specified therein, was never complied with by Boykin.
The Chancellor dismissed the bill and Allen appeals.
On the question of consideration, the testimony of Allen himself is that he, as an attorney, had a client on whose lands Boykin held a second trust deed to secure an indebtedness then past due, and in which lands Allen owned certain mineral rights, and that Boykin had refused to renew the trust deed and was about to foreclose it; that, in addition, appellant and his client and others were anxious to form a pool of their lands and enter ito a certain drilling contract then under consideration, and, in the words of Allen, "We tried to get Boykin to renew that trust deed, and to execute the drilling contract so we could get something started, and he declined to carry on with us until he got an an `acquittance' as he expressed it from me." Under these circumstances Allen executed to Boykin the instrument in question and Boykin refrained from foreclosing his trust deed and placed the 4935 acres of land in the pool and joined in the drilling contract, as will be shown more in detail hereinafter. This constituted sufficient consideration for the execution of this instrument by Allen. Indeed, forbearance to foreclose the trust deed was itself sufficient. Barnes v. Moody, 5 How. 636, 37 Am. Dec. 172.
The words of conveyance are "I, the undersigned, B.B. Allen, hereby acquit back . . ." The meaning of the words must be determined in the light of the circumstances under which they were used. It is clear that both parties thought Allen was re-conveying to Boykin just what Boykin had formerly conveyed to Allen. The instrument referred to the Boykin conveyance for the purpose of determining both the extent and source of Allen's interest and the description of the land to which such interest applied. Allen had gotten his title from Boykin; therefore, he used the expression "acquit back," intending thereby to reconvey to Boykin what Boykin had conveyed to him. It will be noted, too, from the quoted testimony of Mr. Allen set out above, that in the negotiations for this re-conveyance the instrument had been designated an "acquittace." It is the duty of the court to give effect to the intent of the parties if it can be done under recognized rules of construction. In such a case a deed will be construed to effectuate the manifest intention and purpose of the parties although it is inartifically and untechnically drawn. Yazoo M.V.R. Co. v. Lakeview Traction Co., 100 Miss. 281, 56 So. 393; Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Sumter Lbr. Co. v. Skipper, 183 Miss. 595, 184 So. 296, suggestion of error overruled 183 Miss. 595, 184 So. 835.
"Technical terms, however, need not be used; and if an intention to pass a title is disclosed, the court will give effect to such intention notwithstanding inaccuracy of expression, or inaptness of the words used." 16 Am. Jur., p. 469, Sec. 49.
Webster's New International Dictionary gives as one definition of "acquit": "To discharge, as a claim or debt; to clear off; to pay off; also, Archaic, to pay or render back; . . ."
In Gordon v. Haywood, 2 N.H. 402, the phrase "quit . . . all my right and title" in a deed was construed as the equivalent of "sell" or "release" and to be sufficient to pass title to the land in question.
The word "acquit" means to release or discharge from an obligation. Commonwealth v. Benson, 94 Pa. Super. 10.
In Smith v. Winston, 2 How. 601, Chief Justice Sharkey used this expression, "In a quit claim deed, the party does nothing more than to acquit the grantee from any title or right of action which [he] may have . . ." We, therefore, conclude that the words "acquit back", used under the circumstances here shown, vested in Boykin title to such mineral rights as Allen had when he executed the conveyance.
As to the third question, the instrument stipulates it is to become effective only after Boykin had "executed" the documents therein specified. It is argued that this required Boykin to actually deliver the papers and lose all control thereover and that signing and acknowledging the papers and their delivery in escrow did not comply with that requirement. Here are the circumstances confronting the parties at the time: A drilling contract and an escrow agreement had been prepared and had either been, or was in the course of being, signed and acknowledged by the parties, and as a part of which the landowners were to all execute leases to the driller. This included some nine persons owning about eleven thousand acres of land. All of these parties, including Boykin, signed and acknowledged the drilling contract and the escrow agreement, together with separate leases on their respective lands, including one by Boykin on the 4935 acres, and one by Allen on other lands in which he had an interest. Under that contract the driller agreed to begin operations somewhere on the block of lands by March 1, 1942, but if he should fail to do that "this contract shall terminate as to all parties hereto and relieve all parties from any liability thereunder," and the oil and gas leases executed simultaneously with the execution of the drilling contract and the escrow agreement should be returned by the escrow agent to those executing them. So that while the driller agreed to begin drilling by a specified date, he was relieved of liability in case he did not do so and the result would be a return of the papers by the escrow agent. As stated, appellant Allen joined in that drilling contract and escrow agreement. It was in the light of these purposes and circumstances the instrument from Allen to Boykin provided that it would become effective only when Boykin had "executed" the specified documents. The drilling contractor defaulted and all papers were duly returned by the escrow agent. The papers signed and acknowledged by Boykin were, therefore, never actually delivered to the contractor. Did the word "executed," used under these circumstances, require the documents to be actually delivered so that Boykin should lose all right to and control over them? We do not think so. Both parties were familiar with the provisions of the drilling contract and the escrow agreement. They knew the papers might or might not be actually delivered the driller, depending on whether he performed the contract. The word "executed" meant only that Boykin should sign the drilling contract and the escrow agreement and his separate lease, and join in the deposit of these documents with the escrow agent under the escrow agreement. Boykin did that. That was all it was contemplated he should do. Under the circumstances he could not actually deliver his papers to the driller. Other parties had the same rights he had under the escrow agreement. However, while Boykin, because of the default of the driller, never lost all right to his papers, he would have done so had the driller complied with the contract. The actual delivery after deposit in escrow depended not on the act or wish of Boykin but on the act of the driller. Boykin had lost all control over and all right to them had the driller complied with his contract. Therefore, Boykin complied with the condition on which the reconveyance to him by Allen was to become effective.
If it be said that the real agreement was that the instrument would be null and void and be by Boykin returned to Allen if the driller did not comply with his contract, the answer is that it is not claimed that such was the understanding, nor is there any proof whatever of it, and a further answer is that the writing could easily have contained that agreement, and should have done so, if it in fact was made. It is not suggested that Boykin was guaranteeing that the driller would carry out the contract. Appellant was not only the grantor in this instrument but he also prepared it, and in such cases, under familiar rules of construction, doubtful questions should be construed favorably to the grantee.
Affirmed.