In Bourne v. Farrar, 180 N.C. 135 [ 104 S.E. 170], a conveyance of "all his right, title, and interest, being one-third interest," was held to convey, in addition to the one-third interest, a contingent interest in the remainder of the land, the court invoking the rule that when the language in a deed is of doubtful meaning that which is most favorable to the grantee will control. (Also see Deaton v. Hutson, (Tex.Civ.App.) 261 S.W. 165, citing and following Sequatchie Land Co. v. Sewanee Coal, Coke Land Co., Costello v. Graham, and McLennan v. McDonnell, supra; Campbell v. Wells, 278 Ky. 209 [ 128 S.W.2d 592], and cases therein cited at page 596 which include McLennan v. McDonnell, and Costello v. Graham, supra; Hoover v. Roberts, 146 Kan. 785 [74 P.2d 152, 115 A.L.R. 182]; Murphy v. Murphy, 132 N.C. 360 [ 43 S.E. 922]; Rogers v. Kinney, 122 Okla. 73 [ 250 P. 890]; Realty Securities D. Co. v. National Rubber Leather Co., 122 W. Va. 21 [ 7 S.E.2d 49]; Dodge v. Walley, 22 Cal. 224, 228; Civ. Code, §§ 1069, 1070. Other cases are cited in a comprehensive note in 115 A.L.R. 192, 195 et seq.
When differences arise, the intention of the party encumbering the property as expressed in the conveyance must be looked to and consideration given to the entire context of the instrument rather than to a single phrase or clause. In Purcell v. Thaxton, 202 Okla. 612, 216 P.2d 574, 576 (1950), citing Rogers v. Kinney, 122 Okla. 73, 250 P. 890, 891, an action to construe a conveyance, the court said: Veal v. Hopps, 183 Okla. 116, 80 P.2d 275 (1938).
"It is a well-settled rule that where the meaning of the terms used in a written contract are not clear, the subsequent acts of the parties, showing the construction they have put upon the agreement themselves, are to be looked to by the court." See, also, in this connection, Rogers v. Kinney, 122 Okla. 73, 250 P. 890. As stated by this court in Trumbla v. State ex rel. Commissioners of the Land Office, 191 Okla. 119, 126 P.2d 1015, in construing a deed of doubtful meaning the first duty of the court is to ascertain the intention of the parties, particularly that of the grantor.
Consequently, the intent of the parties must be ascertained solely from the instruments themselves. Rogers v. Kinney, 122 Okla. 73, 250 P. 890; Carroll v. Bowen, 180 Okla. 215, 68 P.2d 773. Plaintiff's contention that we should treat the conveyances subsequently made by Adolph Frankel as admissions against interest must be rejected for this reason and for the further reason that such conveyances are not included in the case-made and, therefore, cannot be considered by this court even though referred to in the aforesaid stipulation of the parties. Likewise, we must deny defendants' request to consider the market value of the interest in question in 1921 as no evidence was offered relative thereto and that is not a proper subject of judicial notice.
We there held that the trial court properly permitted the introduction of evidence to show the intent of the parties on the theory that the deed was ambiguous. In that case we quoted from Rogers v. Kinney, 122 Okla. 73, 250 P. 890, as follows: "`A court of equity will look at the real object of a deed and the intention of the parties, and will compel the fulfillment of both, and, if possible, the intention of the grantor will be gathered from the whole instrument. If the intention of the parties to the deed is plain, parol evidence is not admissible to prove an intention different from the terms of the deed, but where a deed possesses an element of uncertainty, parol evidence, the admission of the parties, and other extraneous circumstances may be proved to ascertain its true meaning.'"
This case falls within the rule laid down by this court to the effect that if the intention of the parties to a deed is plain, parol evidence is not admissible, but where a deed is uncertain parol evidence, admission of the parties, and other extraneous circumstances may be proved to ascertain its true meaning. Wilson v. Olsen, 167 Okla. 527, 30 P.2d 710; Rogers v. Kinney, 122 Okla. 73, 250 P. 890; Hampton v. Kessler, 193 Okla. 619, 145 P.2d 955. There is no merit in the contention that Sam S. Gill, one of the defendants, was an incompetent witness to testify to the transaction with S.A. Apple, deceased, under 21 O. S. 1941 § 348. Gill did not take his cause of action "immediately" from S.A. Apple. There were several intervening conveyances between Apple and Gill. This statute is strictly construed and means "directly without an intermediary."
"A court of equity will look at the real object of a deed and the intention of the parties, and will compel the fulfillment of both, and, if possible, the intention of the grantor will be gathered from the whole instrument. If the intention of the parties to the deed is plain, parol evidence is not admissible to prove an intention different from the terms of the deed, but where a deed possesses an element of uncertainty, parol evidence, the admission of the parties, and other extraneous circumstances may be proved to ascertain its true meaning." Rogers v. Kinney, 122 Okla. 73, 250 P. 890. It is a cardinal rule of construction that a grant must be construed to effect the plain intent of the grantor, and if that intent is plain, it controls.
The construction of prior owners as to the right of plaintiff is not necessary to determine the right conveyed by the deed from Major to Sheegog for the reason that the instrument is clear and unambiguous and the rights of the parties involved are to be determined from the instrument itself. Haas v. Brannon, 99 Okla. 94, 225 P. 931; Rogers v. Kinney, 122 Okla. 73, 250 P. 890; Jennings v. Amerada Petroleum Corporation, 179 Okla. 561, 66 P.2d 1069; Whitaker v. Hughes, 14 Okla. 510, 78 P. 383; Higgins v. Oklahoma City, 191 Okla. 16, 127 P.2d 845. It is next and finally argued that the court erred in not decreeing that the plaintiff was the owner of and acquired title by prescription to all of the strip of land between the north edge of the cement driveway and the north fifteen (15) feet of lot seven (7) in block eighty-eight (88), City of Chickasha, described in the plaintiff's deed, and erred in not granting a permanent injunction restraining Dr. M.R. Williams from interfering with plaintiff's title and possession. Defendant asserts that this is an afterthought on the part of plaintiff, and that since the use of the driveway was the first concern of plaintiff, it is without substantial merit to argue that plaintiff is the owner of approximately two feet north of the driveway by prescription.
We are to determine the quantity of estate the deed conveyed. If it contains an element of uncertainty as to the intention of the parties, that intention may, by parol evidence, be ascertained from the admissions of the parties or other extraneous circumstances; the intention of the grantor will be gathered from the whole instrument, if possible, without undue emphasis upon any one part thereof to the exclusion of another. Rogers v. Kinney, 122 Okla. 73, 250 P. 890. But when the deed was executed, section 30, ch. 8, S. L. 1897 (sec. 9698, O. S. 1931), was in force.
The evidence here is clear and uncontradicted that the parties to the original instrument specifically intended and contracted that the grantor should have and retain a one-third undivided interest in and to all of the mineral rights to the land. In Rogers v. Kinney, 122 Okla. 73, 250 R. 890, this court held: "A court of equity will look at the real object of a deed and the intention of the parties, and will compel the fulfillment of both, and, if possible, the intention of the grantor will be gathered from the whole instrument. If the intention of the parties to the deed is plain, parol evidence is not admissible to prove an intention different from the terms of the deed, but where a deed possesses an element of uncertainty, parol evidence, the admission of the parties, and other extraneous circumstances may be proved to ascertain its true meaning."