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Shurley v. Aaron

Supreme Court of Mississippi
May 23, 1955
80 So. 2d 61 (Miss. 1955)

Summary

finding that "'[a]n estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple, and (b) provides that the estate shall automatically expire upon' . . . the happening or non-happening of a specified occurrence" (quoting Restatement (First) of Prop.: Freehold Estates § 29)

Summary of this case from Gregory v. United States

Opinion

No. 39631.

May 23, 1955.

1. Minerals — reservation — construed.

Where deed of undivided interest in land reserved mineral rights in grantors and provided that reservation remained "only so long as the said land is owned and remains in the possession" of the grantees, and if any sale of land was made by grantees that deed would convey all mineral rights, the deed was not ambiguous and whatever reservation of mineral rights grantors had terminated when grantees conveyed land without reservation of mineral rights.

2. Minerals — reservation by grantors — determinable fee.

Title reserved by grantors in deed referred to in Headnote No. 1 was a determinable fee.

Headnotes as approved by Roberds, P.J.

APPEAL from the Chancery Court of Amite County; JAMES A. TORREY, Chancellor.

Flowers, Brown Burns, Jackson, for appellants.

I. The mineral reservation in favor of the appellees reserved unto them a determinable fee in the minerals, which estate wholly terminated upon the happening of the event upon which its continuance was conditioned. Armstrong v. Bell, 199 Miss. 29, 24 So.2d 10; Blackburn v. Piney Oil Gas Co., 278 Ky. 191, 128 S.W.2d 196; Esty v. Currier, 98 Mass. 500; Farnsworth v. Perry, 86 Maine 442, 22 A. 373; Fatheree v. McCormick, 199 Miss. 248, 24 So.2d 724; Gulf Rfg. Co. v. Stanford, 202 Miss. 602, 30 So.2d 516; Kinder v. LaSalle County Carbon Co., 301 Ill. 363, 133 N.E. 772; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; May v. Bedsole, 245 Ala. 323, 16 So.2d 703; Merrill Engineering Co. v. Capital Natl. Bank of Jackson, 192 Miss. 378, 5 So.2d 666; Mississippi Cent. R.R. Co. v. Ratcliff, 214 Miss. 674, 59 So.2d 311; Moulton v. Crafton, 64 Maine 218; Ricks v. Merchants Natl. Bank Trust Co., 191 Miss. 323, 2 So.2d 344; Saulsberry v. Maddix, 125 F.2d 430; Saulsberry v. Saulsberry, 121 F.2d 318; Shell Petroleum Corp. v. Ward, 100 F.2d 778; Stern v. Great Southern Land Co., 148 Miss. 649, 114 So. 739; Texas Gulf Producing Co. v. Griffith, 218 Miss. 109, 65 So.2d 447; Weeds v. Woods, 71 N.Y. 581, 53 A. 1024; Whelan v. Johnson, 192 Miss. 673, 6 So.2d 300; Wilson v. Youst, 43 W. Va. 826, 28 S.E. 781, 39 L.R.A. 292; 16 Am. Jur., Secs. 171, 309 pp. 534, 615; 19 Am. Jur., Secs. 29, 32 36 pp. 489, 492, 496; 26 C.J.S., Secs. 22(c), 86(b), 110, 135, 137, 140(b) pp. 200, 332, 400 437, 439, 451; 31 C.J.S., Sec. 10 pp. 23-4; 20 L.R.A. (N.S.) 221; Vol. I, A.L.I., Restatement of the Law (Property), Sec. 44 pp. 121, 128; Black's Law Dictionary, word "habendum"; Vol. VI, Thompson on Real Property (Perm. ed.), Sec. 3512.

II. Regardless of the mineral estate reserved by the appellees in their deeds to John and Hilton Shurley, the said deeds granted to the grantees therein a power of appointment over the entire fee simple interest in the minerals, including the interest of the appellees. Andrews v. Brumfield, 32 Miss. 107; Boyle v. Moore, 299 Ill. 571, 132 N.E. 716; Jones v. Stamps, 120 Miss. 60, 81 So. 651; Loud v. Poland, 126 Maine 45, 136 A. 119; 72 C.J.S., Secs. 10, 406(4) pp. 407, 443; A.L.I., Restatement of the Law (Property), Sec. 323 p. 1835; Vol IV, Thompson on Real Property (Perm. ed.), Secs. 816, 830, 2293 pp. 2274, 2284, 845; Vol. III, Tiffany on Real Property (3rd ed.), Secs. 680, 685 pp. 11, 20.

III. There is no evidence whatever to sustain the decree of the Lower Court upon the theory of fraud and deceit. Hunt v. Sherrill, 195 Miss. 688, 15 So.2d 426; J.B. Colt Co. v. Harris, 177 Miss. 536, 171 So. 695; McCain v. Cochran, 153 Miss. 237, 120 So. 823; McCubbins v. Morgan, 199 Miss. 153, 23 So.2d 926; Plews v. Burrage, 19 F.2d 412; Praetorians v. Thompson, 160 Miss. 85, 133 So. 288; Williams v. Sawyer Bros., Inc., 45 F.2d 700; 12 Am. Jur., Sec. 137 p. 628; 23 Am. Jur., Secs. 22, 141 pp. 775, 939; 24 Am. Jur., Sec. 265 p. 100; 17 C.J.S., Sec. 137 p. 487; 37 C.J.S., Secs. 7, 29, 40, 41(c) pp. 223, 270, 288, 292.

IV. Appellees are estopped by their actions and by the recitals in their deeds to assert ownership of any mineral interest as against this appellant. 19 Am. Jur., Sec. p. 603; 31 C.J.S., Secs. 10, 37 pp. 195, 213; Vol. V, Thompson on Real Property (Perm. ed.), Sec. 2600 p. 372.

V. Appellant was an innocent purchaser for value and is entitled to the protection accorded by law to such a purchaser. Orgill Bros. v. Terry, 157 Miss. 543, 128 So. 755; Robinson v. McShane, 163 Miss. 626, 140 So. 725; 20 Am. Jur., Secs. 229, 239 pp. 223, 235; 55 Am. Jur., Secs. 650, 709, 737 pp. 1041, 1067, 1084, 1103; 66 C.J., Secs. 906-07, 956 pp. 1092-93, 1125; 31 C.J.S., Secs. 126, 131 pp. 745, 750; Vol. VIII, Thompson on Real Property (Perm. ed.), Secs. 4287, 4289, 4464 pp. 66, 70, 316.

B.D. Statham, Magnolia, for appellees.

I. The deeds to the Shurleys specifically excepted a perpetual undivided interest in the oil, gas, and other minerals from the conveyances, which property is vested in the appellees. Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Martin v. Adams, 216 Miss. 270, 62 So.2d 328; Moss v. Jourdan, 129 Miss. 598, 92 So. 689; 19 Am. Jur., Estate, Sec. 32; Vol. I A, Summers on Oil and Gas, Sec. 135; Vol. IV, Thompson on Real Property, Sec. 2171; Vol. VI, Ibid., Sec. 3483.

II. The deeds to Hilton N. Shurley and John T. Shurley by the Shurley heirs are ambiguous and parol evidence was admissible to determine the true intent of the parties, which is that the grantors had a perpetual oil, gas, and mineral interest. Blaylock v. Lonn, 157 Miss. 783, 128 So. 555; Carmichael v. Foley, 1 How. 591; Connecticut General Life Ins. Co. v. Lombard (Miss.), 185 So. 260; Dead River Fishing Hunting Club v. Stovall, 147 Miss. 385, 113 So. 336; Kendrick v. Robertson, 145 Miss. 585, 111 So. 99; Welch v. Gant, 161 Miss. 867, 138 So. 585; 16 Am. Jur., Deeds, Secs. 411-12; Thompson on Real Property (Perm. ed.), Secs. 3283, 3750, 4497.

III. In the alternative it is contended that the conveyance to Hilton N. Shurley and John T. Shurley by the appellees specifically reserved a royalty interest, and Chipley Farms, Inc., purchased the land subject to the reserved interest. Allen v. Boykin, 199 Miss. 417, 24 So.2d 748; Calcote v. Texas Pacific Coal Oil Co. (Miss.), 157 F.2d 216, 167 A.L.R. 413 (cert. denied, 329 U.S. 782, 67 S.Ct. 205); Federal Land Bank of N.O. v. Cooper, 190 Miss. 490, 200 So. 729; McCuiston v. Blaylock, 215 Miss. 504, 61 So.2d 332; Palmer v. Crews, 203 Miss. 806, 35 So.2d 430, 4 A.L.R. 2d 483; Richardson v. Moore, 198 Miss. 741, 22 So.2d 494; 16 Am. Jur., Deeds, Secs. 162, 168, 170-71, 177; Summers on Oil and Gas (Perm. ed.), Sec. 572; Thompson on Real Property (Perm. ed.), Sec. 3458.

APPELLANTS IN REPLY.

I. In reply to Point I of appellees' brief. Frederic v. Board of Suprs. Jackson County, 197 Miss. 293, 20 So. wd 671; Hamilton v. City of Jackson, 157 Miss. 284, 127 So. 302; Johnson v. State, 154 Miss. 512, 122 So. 529; Merrill Engineering Co. v. Capital Natl. Bank of Jackson, 192 Miss. 378, 5 So.2d 666, 670; Ricks v. Merchants Natl. Bank Trust Co. of Vicksburg, 191 Miss. 323, 2 So.2d 344; Texas Gulf Producing Co. v. Griffith, 218 Miss. 109, 65 So.2d 447, 452; Westbrook v. Ball, 222 Miss. 788, 77 So.2d 274; Sec. 831, Code 1942; 16 Am. Jur., Secs. 160, 170, 173 pp. 527, 533, 536; 19 Am. Jur., Sec. 29 p. 489; 31 C.J.S., Sec. 10 p. 24; 27 Words and Phrases 215-18.

II. In reply to Point II of appellees' brief. Cook v. Farley, 195 Miss. 638, 15 So.2d 352; Federal Land Bank of N.O. v. Cooper, 190 Miss. 490, 200 So. 729; Hawkins v. Shields, 100 Miss. 739, 57 So. 4; H. Weston Lumber Co. v. Lacey Lumber Co., 123 Miss. 208, 85 So. 193; 16 Am. Jur., Sec. 310 p. 615; 20 Am. Jur., Sec. 1099 pp. 958, 963; 66 C.J., Sec. 956 p. 125; 26 C.J.S., Sec. 137 p. 441; 32 C.J.S., Secs. 851, 901 pp. 784, 820.

III. In reply to Point III of appellees' brief. Federal Land Bank of N.O. v. Cooper, supra; Moore v. Lord, 50 Miss. 229; Smith v. Smith, 211 Miss. 481, 52 So.2d 1; Westbrook v. Ball, supra; 26 C.J.S., Sec. 138(a) p. 443.


This proceeding involves the title to the minerals and mineral rights in and under a tract of land located in Amite County, Mississippi, and described in the bill of complaint.

James L. Shurley, Sr., and Martha Jane Shurley, husband and wife, departed this life, respectively on July 18, 1941 and December 10, 1942, the first intestate and the second testate. As heirs of decedents and as devisees under the will of Martha Jane Shurley, the nine children of James L. Shurley, five daughters and four sons, each acquired an undivided one-ninth interest in said lands.

On May 12, 1943, four of the daughters and two of the sons executed a deed to Hilton N. Shurley and John T. Shurley, two of the sons, to said lands, and, by deed dated June 1, 1943, the other daughter conveyed said lands to the same grantees. These deeds contained limiting provisions as to the minerals, as will be shown hereinafter.

On April 29, 1950, Hilton N. Shurley and John T. Shurley conveyed the lands, without reservation of the minerals, to Chipley Farms, Inc., a Mississippi corporation.

Four of the grantors in the deeds to Hilton N. Shurley and John T. Shurley filed this bill against them and against Chipley Farms, contending that each complainant yet owned a one-ninth interest in the minerals in such lands.

Respondents to the bill say that the conveyance by them to Chipley divested out of complainants any and all mineral rights reserved by grantors in the deeds and that, in any event, the grantees were empowered to convey the property free and clear of any title of complainants to minerals and mineral rights. The two deeds to Hilton and John Shurley contain the same limiting provision as to the minerals, so we will hereafter refer to one deed. The limiting mineral provision in the deed to Hilton N. Shurley and John T. Shurley, inserted after the warranty of title and the description of the land, reads:

". . . LESS AND EXCEPTING, however, all of the oil, gas and other minerals, except sand and gravel, in, on and underlying the above described land. We the grantors, herein, retaining and reserving unto ourselves our undivided one-ninth (1/9) interest each in and to the same minerals. This reservation, however, to remain as an interest in said land only so long as the said land is owned and remains in the possession of the parties of the second part, grantees herein. If any sale of said real estate be made and when made by the parties of the second part, grantees herein, or either of them, or their heirs at law, the said deed shall convey all minerals and mineral rights in and to said above described land. It is agreed, contracted and understood by and between the grantors and the grantees that the grantees shall have the exclusive right to execute any and all oil, gas and mineral leases upon the above described land and to receive and collect the cash payment therefor together with all annual delay rentals paid by the lessee and the said lease or any leases executed by them shall be binding upon all interest reserved by us herein to the minerals in and underlying said land. We to receive our undivided share and interest in all royalties that may be paid for minerals mined and produced from said land."

(Hn 1) We do not think the deed is ambiguous. It means first, that whatever title or interest the grantors reserved in the minerals and mineral rights ended and terminated upon the conveyance of the lands, without reservation of any minerals or mineral rights, to Chipley Farms.

(Hn 2) Special weight and meaning are carried by the phrase, after the minerals were reserved to grantors, "This reservation, however, to remain as an interest in said land only so long as the said land is owned and remains in the possession of the parties of the second part, grantees herein." Retention of the minerals and mineral rights was only so long as the grantees owned and possessed the land. The title retained by grantors was a determinable fee. 26 C.J.S. 400, Deeds, Sec. 110, and 26 C.J.S., 437, Deeds, Sec. 135; Farmsworth v. Perry (Maine) 22 A. 373; 19 Am. Jur. 489, Sec. 29. Restatement of the Law of Property, Vol. 1, Sec. 44, p. 121, contains this definition of a determinable fee: "An estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land, (a) creates an estate in fee simple, and (b) provides that the estate shall automatically expire upon the occurrence of a stated event . . ." adding that the stated event can be either the happening or non-happening of a specified occurrence. The event here which terminated the title or right of the grantors to the minerals was the conveyance of the lands and the minerals by Hilton N. Shurley and John T. Shurley to Chipley Farms.

Secondly, the quoted provisions of the deed vested in the grantees the power to convey title to the minerals free and clear of any claim of the grantors. The deed expressly states: "If any sale of said real estate be made and when made by the parties of the second part, grantees herein, or either of them, or their heirs at law, the said deed shall convey all minerals and mineral rights in and to above said described land." The deed to Chipley was a warranty deed purporting to convey all of the minerals. In Thompson on Real Property, Permanent Edition, Vol. 4, p. 2274, a power of appointment is defined as: ". . . an authority to do some act in relation to lands, or the creation of estates therein, or of charges thereon, which the owner granting or reserving such power might himself lawfully perform." No particular form of words is necessary to create the power. ". . . Any expression, however informal, is sufficient if it clearly indicates an intention to give a power." Tiffany on Real Property, Vol. 3, Third Edition p. 20; 72 C.J.S., Powers, Sec. 407; Thompson on Real Property, supra. The words here used, vesting in Hilton and John Shurley the power to convey the minerals, are clear and specific. Chipley Farms got a good title to the minerals free and clear of any estate or title therein claimed by complainants below, appellees here.

There is a charge of fraud in procurement of the deed by Hilton N. Shurley and John T. Shurley. The proof established no fraud.

Nor are we confronted with the rights of appellees, if any, under an oil and gas lease executed by Hilton N. Shurley and John T. Shurley. That question is not involved in this case.

Other questions arising out of the circumstances of this case might be, but are not, presented to us. We decide the case as made by the pleadings.

Reversed and bill dismissed.

Hall, Lee, Holmes, and Ethridge, JJ., concur.


Summaries of

Shurley v. Aaron

Supreme Court of Mississippi
May 23, 1955
80 So. 2d 61 (Miss. 1955)

finding that "'[a]n estate in fee simple determinable is created by any limitation which, in an otherwise effective conveyance of land, creates an estate in fee simple, and (b) provides that the estate shall automatically expire upon' . . . the happening or non-happening of a specified occurrence" (quoting Restatement (First) of Prop.: Freehold Estates § 29)

Summary of this case from Gregory v. United States
Case details for

Shurley v. Aaron

Case Details

Full title:SHURLEY, et al. v. AARON, et al

Court:Supreme Court of Mississippi

Date published: May 23, 1955

Citations

80 So. 2d 61 (Miss. 1955)
80 So. 2d 61

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