Morrison v. Brashear

Melvin, J., delivered the opinion of the Court. This appeal is from an order of the Circuit Court for Allegany County (Getty, J.) sustaining without leave to amend the demurrer of Roger Brashear, t/a Brashear Coal Mines, etal. (appellees), to the amended declaration of Martha Morrison, etal. (appellants).

Because we think Judge Getty’s opinion fully and ably demonstrates the correctness of his ruling, we shall, with minor additions, adopt his opinion as the opinion of this Court. Judge Getty’s opinion is as follows: "Without going into the entire history of ownership of the property that is the subject matter of this suit, for the purpose of this litigation it is sufficient to state that by deed dated April 20,1887, Carrie W. Morrison became the owner of a tract of land in Allegany County known as ‘Mineral Hills’. On May 18,1909, Carrie W. Morrison deeded to Mary Jane McDonald fifty-five acres of the surface of a portion of Mineral Hills expressly ‘reserving and excepting out of this conveyance all the coal and other minerals lying and being in, upon and under said lot or parcel of land’. On April 6, 1910, Carrie W. Morrison executed a mortgage to one Summerfield Hendrickson on an obligation of $3,800.00.

The property involved was ⁶⁹⁵ that portion of Mineral Hills conveyed to Carrie W. Morrison by the deed of April 20, 1887. The mortgage contains the following exception: ‘reserving from the operation of this mortgage of that part of “Mineral Hills” conveyed to the mortgagor by the deed aforesaid, the following tracts and parcels of land... Tract of land conveyed by and described in a deed from Carrie W. Morrison to Mary Jane McDonald deed bearing date May 18, 1909, and recorded in Liber 104, folio 588 of said Land Records’. The mortgage became in default and, in No. 10,938 Equity, the property was sold on July 9,1927, by the assignees of the mortgage to the Campbell Coal Company, one of the defendants herein.

Martha Morrison and the other plaintiffs contend that the minerals reserved under the deed to Mary Jane McDonald were excluded from the mortgage and, therefore, did not pass to the purchasers under the foreclosure sale. On this reasoning they claim damages from the defendants for the wrongful extraction of coal from that portion of Mineral Hills deeded to Mary Jane McDonald with the reservation of minerals. Both defendants have demurred on the basis that the bill of complaint establishes that the plaintiffs have no title to the property in dispute, the same having passed under the sheriffs sale to the purchaser at foreclosure. Plaintiffs cite Union Trust Co. of Pittsburgh v. Bellman, 150 Atl. 632 , and Kincaid v. McGowan, 4 S.W. 802 , in support of their position that the reservation in the McDonald deed excluded the minerals from the Hendrickson mortgage.

The first case cited is clearly distinguishable from the present controversy. In the case cited by the plaintiffs Kensington Brick executed a mortgage expressly reserving the coal under a portion of the land unto a Plummer family with the right to remove the coal with the consent of Kensington Brick. After default ⁶⁹⁶ the purchaser at the foreclosure sale brought suit alleging wrongful removal of the coal by Plummer. The court held that the reservation constituted a severance of the coal from the surface creating a separate estate that did not pass under the mortgage nor by sheriffs sale.

In Bellman the minerals were expressly reserved unto named individuals, thus the intention to exclude them from the mortgage is clear. Under the present case the reservation in the mortgage is of the property ‘conveyed by and described in a deed from Carrie W. Morrison to Mary Jane McDonald’ which was of the surface only. Plaintiffs argue that if the minerals under the McDonald tract were to be included in the mortgage, Mrs. Morrison could have expressly so stated. A similar contrary argument can be made that if the minerals under the McDonald tract were to be excepted from the mortgage Mrs. Morrison could have expressly so indicated.

The intention of the parties must be gleaned from the instrument as a whole, i.e., the language employed, subject matter and surrounding circumstances. Weiprecht v. Gill, 191 Md. 478 . Kincaid, supra, is supportive of the position of the original grantor, Carrie W. Morrison. In that case, decided by the Kentucky court in 1887, the grantor conveyed surface and retained minerals to part of a tract of land.

In a later deed he conveyed the remainder of the 22,000 acre survey expressly deducting the parcel previously conveyed. The court held that the interest retained in the first deed was a separate and distinct interest in a conveyance described by metes and bounds which rendered it a distinct interest from the remainder of the survey. Only by the use of apt words could the subsequent conveyance be construed to include this separate estate, the court concluded. A contrary result was reached in Holloway’s Heirs v. Whatley, 131 S.W.2d, 89 , 1939 Texas.

In that case ⁶⁹⁷ the grantor conveyed three tracts known as the Moses Donohue League reserving one-half of the minerals. Three years later he conveyed all his interest in the Elizabeth Munson League. The specific