Opinion
No. 36562.
October 27, 1947.
1. MINES AND MINERALS.
Descriptions of land in mineral deed and mineral lease as a part of designated 1/2 of designated 1/4 of specified section, etc., were so vague as to render deed and lease ineffective to convey title in absence of recital or clue which would aid in identification of land intended.
2. REFORMATION OF INSTRUMENTS.
In suit to cancel, as a cloud upon complainant's title, a mineral lease and a mineral deed, a motion, made after both sides had rested, to file cross-bill for reformation was properly denied as not indicating the purpose or basis therefor.
3. QUIETING TITLE.
Complainant was entitled under statute to have canceled, as a cloud on his title, a mineral lease and a mineral deed which were void on their faces due to insufficiency of description, notwithstanding their impotence to do practical harm to his title (Code 1942, sec. 1324).
APPEAL from the chancery court of Amite county. HON. R.W. CUTRER, Chancellor.
McClaren Hagee, of McComb, for appellant.
The oil, gas and mineral lease and the mineral deed were not void because of an improper description.
Enochs v. Miller, 60 Miss. 19; Tucker v. Field, 51 Miss. 191; Herod v. Robinson, 149 Miss. 354, 115 So. 40; McLendon v. Ravesies, 178 Miss. 428, 173 So. 303; McManus v. Wilson, 138 Miss. 1, 102 So. 543; Nixon v. Porter, 34 Miss. 697; Hodge v. Bennett, 78 Miss. 868, 29 So. 766; Harris v. Byers, 112 Miss. 651, 73 So. 614; Dixon v. Cook, 47 Miss. 220; Merchants' Farmers' Bank v. Byrd, 133 Miss. 207, 97 So. 550; Cole v. Cole, 99 Miss. 335, 54 So. 953; Shivers v. Farmers' Mut. Fire Ins. Co., 99 Miss. 744, 55 So. 965; Jenkins v. Bodley, Smedes M. Ch. 338; Town of Como v. Pointer, 87 Miss. 712, 40 So. 260; Swan v. New England Mortgage Co., 75 Miss. 907, 23 So. 627; Selden v. Coffee, 55 Miss. 41; Jefferson v. Walker, 199 Miss. 705, 24 So.2d 343, 26 So.2d 239; Abadie v. Lee Lumber Co. (La.), 55 So. 658; Meyer v. Aonnegys (La.), 86 So. 307; White v. Luming, 93 U.S. 514; Sanborn v. Miske, 190 Wis. 513; Mitchell v. Nicholson, 3 N.W.2d 83; Ontario Land Co. v. Yorly, 212 U.S. 152; Greenleaf v. Birth, 8 L.Ed. 406; Nolen v. Henry (Ala.), 67 So. 500; Thompson on Real Property, Sec. 3364; 18 C.J., Deeds, Secs. 243, 247.
Appellee was estopped to deny the validity of the oil, gas, and mineral lease and mineral deed.
White et al. v. Moales, 147 Miss. 758, 113 So. 341; Koenig v. Calcote, 199 Miss. 435, 25 So.2d 763; Gulf Refining Co. v. Travis, 201 Miss. 336, 29 So.2d 100; Whittington v. H.T. Cottam Co., 158 Miss. 847, 130 So. 745, 748; Birmingham Trust Savings Co. v. Strong, 239 Ala. 118, 194 So. 200; Edwards v. Crittenden, 213 Ala. 156, 104 So. 277; Schumacher v. Harriet, 52 F.2d 817, 82 A.L.R. 1; Farmers' Life Ins. Co. v. Foster Bldg. Realty Co., 272 F. 864, 66 L.Ed. 418; Horne v. Beattie, 167 La. 647, 120 So. 38; Davis v. Burrage, 156 F.2d 304, 307; 35 C.J. 1169, Sec. 445; 12 C.J.S. 996, Sec. 38; 31 C.J.S. 347, Sec. 109 (a), p. 352, Sec. 10 (b).
Appellee failed to prove notice of any defects in the instruments or of agency between the defendant, W.G. Burrage, and appellants. J.T. Lowry, of Gloster, and Gordon Gordon, of Liberty, for appellee.
The description of the land attempted to be conveyed in the oil lease and mineral deed was void.
Tierney v. Brown, 65 Miss. 563, 5 So. 104; Swazye v. Doe ex dem. McCrossin, 13 Smedes M. 317; Selden v. Coffee, 56 Miss. 41; W.C. Early Co. v. Long, 89 Miss. 285, 42 So. 348; Plenny v. Ferrill (Miss.), 11 So. 6.
Bill was filed by Upton to cancel, as a cloud upon his title, a mineral lease and a mineral deed. The land in each instrument was described as follows: "Being a part of the N 1/2 of SE 1/4 and a part of the S 1/2 of the NE 1/4 of Section 9, Township 2 N, Range 2 E, and containing 100 acres, more or less."
It is noted that the description in the instruments is too vague to sustain their validity. There is no recital or clue which could aid in its identification. Both are ineffective to convey title.
The record is replete with contentions involving matters of pleading, and the testimony is directed chiefly toward establishing a forgery of the mineral deed. We need not pursue these matters, now made irrelevant by our decision.
Appellants made no effort to seek reformation by cross bill. A motion to file such pleading, made after both sides had rested, was properly denied as not indicating the purpose or basis therefor. It may be observed that any attempt so to do would have collided at once with undisputed testimony of the deed's forgery whereby mutuality of intent or mistake would be effectually destroyed.
The right of complainant, under Code 1942, Section 1324, to cancel, as a cloud on his title, an instrument void on its face, may not be impaired by its impotence to do practical harm to his title. The predecessor of the cited statute was under review in Louisville N.R. Co. v. Western Union Tel. Company, 234 U.S. 369, 34 S.Ct. 810, 58 L.Ed. 1356, and such right was upheld. We accept this view as correct. Even a void deed is sufficient cloud to cast a disturbing shadow.
The learned chancellor decreed cancellation of the two instruments with certain refunds tendered by complainant. With this result, we are in accord.
Affirmed.