FEDERAL 'REPORTER, vol. 59.
sentiment'which must arise, to a. large extent,in the breastl!l of all men; bUt, when you come to analyze it, I think the best you can say is that this sentiment has earried away the better judgment of the court. There is nothing to maintain it, and it is not, as a principle oflaw,8ound in any respect. Furthermore, the statute of Minnesota is clear and unequivocal, and under it no action can be maintained except for actual damages. The term "actual damages" has a significance and meaning of its own, and any attempt to reacertainly must fail. son a claim of this kind into actual This cQurt holds, in accordance with the position taken by defendant, that the action cannot be maintained. Counsel has stated that it iliJagreed that plaintiff disclaims anything on the ground of any willful or malicious disregard of the rights of plaintiff,and seeks to recover entirely upon the ground of negligence in the performance of the contract. There is Q claim that 50 cents was expended in searching for this telegram, but I think that is too remote. There is claim of 40 cents for sending the telegram, but counsel for plaintiff says he makes no claim for that. Let the record be fairly ,JI;lade up, showing that counsel for plaintiff dis,claims' anything on the ground of any willful and maliCiou$'disregatd of rights of plaintiff, and asks the recovery simply 011 the ground of negligence on the part of the defendant company in the nondelivery of the telegram, thereby causing plaintiff to suffer great mental anguish, and that the court then directed l.lw jury to find Qverdict for the defendant. Ordered accordingly.
BROWN et aL ,T. 'CRANBERRY IRON & COAL CO. (Circuit Court, W., D. North Carolina.
February 7, 1894.)
A deed' which conveys "the following tract of land, situate," etc., "that is, the one-half of the mineral Interest in the said land," (described by metes and bounds,) to have and to llold "the one half of the mines and minerals" therein, must be held to, convey the grantor's entire mineral interest, even if considered upon Its face alone; but especially so in the light of the facts, known to both parties, that the grantees had already purchased the fee of the lands for the purpose of makIng a sale to a company having sutllcient capital to develop its mineral deposits, that the sale had fallen through because of the grantor's claim to an interest in the mineral rights, and that the grantees desired to purchase the same in order to perfect, and make salable, their title.
At Law. brought by John E. Brown against the Cranberry Iron & Coal COmpany, under the direction of the court of equity, to establish bis title, as tenant in comQmn, to the land of which he prayed for partition; the defendant, in its answer, having asserted i'sole seisin." 40 Fed. 849. Long before bringing the suit, the plaintiff had made the following deed to the parties under whom defendants claim:
This indenfure,l;llsde imd entered into this,' 7th day of June, A. D. 1867, between John E.Brown, by his agents and attorneys in fact, Z. B. Vance and William J. Brown, of the first part, and Thomas J. Sumner and Robert
BROWN'll. CRANBERRY IRON &: COAL CO.
F. Hoke, or the second part, witnesseth that the said John Eo Brown, ror and in consideration or the sum of twenty-two thousand dollars in hand paid, and secured to be paid, berore the execution of this deed, the receipt whereof is hereby acknowledged, the said John E. Brown hath bargained and sold, and by these presents doth bargain, sell, release, relinq:J.ish, and con· tirm, unto the said Thomas J. Sumner and Robert F. Hoke, the following tract of land, situate and being in the county of Mitchell, in the state or North Carolina; that is, the one-half of the mineral interest in the saId land: Beginning on a hickory and sugar tree marked "W. F. P.," west or Cranberry creek, in the gap of the humpback of the Yellow mountain, and runs west 123 poles, crossing a branch at 8 poles, and another at 88 poles, to a Spanish oak and maple tree; then south 74 poles, crossing a branch at 20 poles, to a large Spanish oak on the top of a ridge; the same course, 120 poles, crossing a branch at 83 poles, to a small chestnut on the east of the humpback of the said Yellow mountain; then east 40 poles, to a large sugar tree; then south 114 poles, crossing a branch at 8 poles, and Roaring creek at 108 poles, to a beech marked "W. F. P.;" then east 130 poles, to a buckeye and sugar tree; then south 70 poles, to a poplar in a fiat; then west 30 poles, to a buckeye; then south 120 poles, crossing a branch at 100 poles, and another at 110. to a maple in a fiat; then east 574 poles, crossing Cranberry creek, 9 poles, to a stake on the West fork, east of Cranberry creek; then north 949 poles, to a stake; then west, crossing said creek, 489 poles, to a black oak, white oak, and chestnut; same course, 92 poles, to a stake; then south to the beginning,-containing some three thousand acres,· and being the same lands condemned for the Cranberry Iron Works, known as the "Bounty Lands," and the same conveyed by Thomas M. Pettit to William Dugge1', and the same purchased by the said Jno. E. Brown, under the decree of the court of equity for Buncombe county, as the property of Thomas M. Pettit and the heirs of Wm. Cathcart. To have and to hold, the one-half of the mines and minerals and mineral interest in said land, and the appurtenances thereunto belonging. And the said John E. Brown doth warrant and defend the title to the one-half of the mines, minerals, ore bank, and mineral interest within the boundaries of the said lands, except the five tracts granted to "Vaighstill Avery, and one to Reuben White, within said grant of. prior date to the grant to 'Villiam Cathcart, to the said Thomas J. Sumner and Robert F. Hoke, and their heirs, forever, against the lawful claims of all and every person whatsoever. In testimony whereof, the said John E. Brown, by his agents and attorneys, Z. B. Vance and Wm. J. Brown, has hereunto set his band and seal the day and date above written. [Signed] For Jno. E. Brown. [Seal.] W. J. Brown, Agt. [Seal.] Zebulon B. Vance, Agt. [Seal.] Witness: Geo. W. Swepson, B. S. Gaither.
Chas. A. Moore, P. J. Sinclair, M. E. Carter, and P. A. Cummings, for plaintiff. R. H. Battle, Geo. N. Folk, W. H. Malone, and J. W. Bowman, for defendant. DICK, District Judge. On the trial of this case the defendant offered in evidence a deed executed by the plaintiff, and insisted that he was estopped thereby from asserting title to any minerals embraced within the boundaries mentioned in the deed. This question of law was fully discussed by counsel in the argument, and was reserved by the court for subsequent determination. An issue was then. submitted to the jury, as to whether the plaintiff was estopped by matters of fact occurring previous to and contemporary with the negotiation of sale, and the execution of the deed, as disclosed in the
FEDERAL REPOll.TEll j'\"o1.
pleadings and jand that .issue was found in fa.or of the defendant. .' As·thecounsel of plaintiff presented written requests for instructions, and filed a bill of exceptions to the charge of the court, with the view of carrying the case to the circuit court of appeals by a writ of error, I think the record of the trial will not be complete, without a determination of the question of law reserved by the court. The deed of the plaintiff, made to the grantees under whom the defendant claims, :was properly executed by the fully-authorized agents and attorneys in fact of the grantor; was founded on a valuable and adequate consideration; was duly registered, and embraced within its description Of boundary the entire tract of land in which the plaintiff claimed an undeveloped mineral interest; the fee in the soil then being in the grantees by previous purchase from other parties, who had title and a right to convey. In this case, it is unnecwhethe'r the title of the grantor was, legal or eqessary to uitable, or the right to' the subject·matter was corporeal or incorporeal in its. nature, or what is the form and operation of the con· veyance, as the common-law rule is well settled in this state, that, if a deed camiot operate fully in the way intended by the"parties, the court willendeayor to construe it so that it shall operate in some other manner, to effect the objects and purposes intended, and in accordance with the good faith and the manifest merits of the transaction. The plaintiff insisted that at the time of the execution of the deed he had a mineral interest in said lands, as tenant in common with the grantees and with other parties, a:rnounting to more than an undivided half, and that he conveyed only an undivided half of such mineral interest under the express description of the subject-matter set forth in his deed, and that he is now entitled to the part interest not conveyed. The interest claimed by the plaintiff was not an undivided right, as tenant in common, to the minerals in all the lands within the boundaries of the deed. It was attached to some parts of the land which he had previously sold, reserving some or all the minerals, and the location, extent, and value of his interest was unascertained. There were other persons who owned tracts of land and minerals within said large boundaries. The claim of the plaintiff, as to quantity and value, was indefinite, and not capable of be· ing accurately fixed; and the description of "the one-half of the mineral interest in said lands" probably largely exceeded his interest, as the most valuable minerals had been developed, and then belonged to the grantees. The question ofconstruction presented for determination is whether such description of the subject-matter of the deed was intended to convey all the mineral interest then owned by the grantor, or only an undivided half of the mineral interest in said lands. The cou,nsel of defendant insisted that the law presumes that a legal instrument is grammatically written, and it should be con· strued according to the rules of grammar, to give effect to the intelligible me3!Jling and purpose of' the parties. The deed purports to transfer or release the interest of the grantor in the entire tract
BROWN V. CRANBERRY IRON &; COAL CO.
of land described by metes and bounds, and then the definite article is employed to make cumulative and more particular description, and shows that the grantor only claimed "the one-half of the mineral interest in said lands" and intended to conveyor release his entire interest to his cotenants in possession. They further insisted that the legal force and effect of the deed was to convey such entire interest, as there was no express reservation or exception distinctly and definitely excluding any right or interest from the operation of the deed; that where a deed is executed by one party only, and it contains an indefinite or ambiguous clause, susceptible of two plausible but inconsistent significations, the one is to be adopted which is most strongly against the grantor and in favor of the grantee, and that this construction is more especially required where the intention and objects of the grantee were well known and understood by the grantor, and were induced by his conduct and declarations previous to and contemporary with the transaction; that where one construction of a clause in a deed will work injustice, and the other is consistent with the right of the case, that one should be adopted which standeth with the right; that the intention of parties to a contract is the contract, and should prevail, although such intention may not come strictly within the letter of the instrument employed; that the state of things and the surrounding circumstances in which an agreement is made should be looked at as a means of throwing light upon its meaning, especially for the purpose of ascertaining the true subject-matter; that a deed should be construed with reference to the subject-matter. When the property conveyed is capable of definite ascertainment and description, an accurate description may well be required. But, where the nature and condition of the property is such that a definite description of its extent and value cannot be ascertained, -an indefinite description can, by extrinsic evidence, be fitted to the subject-matter by showing the intention of the parties at the time the deed was executed. These legal propositions-founded in reason, justice, and common honesty-seem to be well sustained by authorities, and they appear to be in accordance with the intention of the parties, manifested on the face of the deed, when considered in the light of the previous and contemporary negotiation and transaction of the parties. 2 Bl.Comm. 379; 1 Shep. Touch. 86; Noonan v. Bradley, 9 Wall. 394--407; Steinbach v. Stewart, 11 Wall. 566--576; Canal Co. v. Hill, 15 Wall. 94; Bank v. Kennedy, 17 Wall. 19--28; Chicago, etc., Ry. Co. v. Denver, etc., R. Co., 143 U. S. 596, 12 Sup. Ct. 479; Topliff v. Topliff, 122 U. S. 121, 7 Sup. Ct. 1057; District of Columbia v. Gallaher, 124 U. S. 505, 8 Sup. Ct. 585; Rowland v. Rowland, 93 N. C. 214; Lowdermilk v. Bostick, 98 N. C. 299, 3 S. E. 844. m the construction of the language of a deed or other contract, the fundamental rule is that the intention of the parties must be supported, as to the extent of its operation, if not contrary to the rules of law. This intention must, if possible, be ascertained from deed itself, by considering all its parts. The words in a deed
rule; be added,to, explaine.d, Or contradicted by' extrinsic eVidence, but where any part is indetlnite or ambiguous, or cannot be fully understood 3.$ to the intention of the instrument, it may be in the. light.of surrounding circumstances, in which may be considered the position and relation of the respective parties, the objects of the conveyance, and the subject-matter at and subsequent to the transaction. A court may avail itself of the same light which the parties possessed at the time the deed was executed, and may consider previous and contemporary transactions and facts to ascertain the subject-matter, and the sense in which the respective parties may have employed and understood expressions in the deed. Merriam v. U. S., 107 U. S. Ct. 536; Prentice v. Forwarding Co., 58 Fed. 437. The evidence shows that the grantees had purchased the fee in said lands for the purpose of selling to some company which had capital to develop and utilize the minerals; that an effort had Jl;lade by them to sell, and the sale was not effected on account. ()f. the outstanding claims of the grantor and others to in said lands; and that these facts were well known to the intelligent, faithful, and highly honorable attorneys in fact of the grantor atthe time of the execution of the deed. The grantor claimed to be a tenant in common in the minerals with the graqtees, who had purchased a large part of the fee in the soil from peI'Sons who derived title from the grantor. The parties, as tenant£!. in common, had in some respects a relation of trust and confidence to each other, and the grantees had a right to expect a full as to the mineral interest claimed by the grantor, when he knew the object they had in view in making the purchase. Rothwell v. Dewees, 2 Black, 613. The evidence shows that .the grantees had employed able counsel, who had examined the books in the otnce of the register of deeds, and could not ascertain the nature and extent of the title of the grantor. to the. minerals claimed, and who had, after careful investigation,. expressed the opinion that no evidence of title was shown by the registry. The mineral interest claimed by the grantor was undeveloped, and its value was not capable of being ascer· tained without careful exploration and considerable expenditure. The large amount of money received by the attorneys in fact of the grantor, as aconsideratioD. ·for the deed, tends strongly to show that they inteijded to convey,and that the grantees expected to receive, all of the mineral interest of the grantor. The grantor claimed to be the owner of a particular estate in the premises, which estate his deed purported to convey by certain metes and bounds, and without Qqy express reservation or exception. Such atnrmation of a particular estate must necessarily have influenced the grantees in making purchase, and. induced them. to believe that they were acquiring all the estate 'in the lands owned by the grantor. In such cases the rules of law are well settled, and are founded upon the highest prin<:iples of morality, justice, and common sense; and they tend to prevent falsehood and fraud, and to secure good faith
BROWN V. CRANBERRY IRON & COAL CO.
and fair dealing, by imposing an estoppel, where, in conscience and honesty, a grantor should not be allowed to claim to the contrary. Van Rensselaer v. Kearney, 11 How. 297. . The attorneys in fact of the grantor were highly honorable men, were faithful agents, and were familiar with the rights of their principal. From the nature of the transaction, and judging their conduct by the ordinary principles of common honesty and fair dealing, which might well be expected from men of such high character, we cannot suppose that they intended to reserve from the operation of the deed an undeveloped mineral interest; which, without any expense on the part of the grantor, would be greatly enhanced in value by the subsequent expenditures of the company to which the grantees might sell the property. Weare sure, from the evidence as to the large amount of consideration money paid for the property, as to the objects they had in view, and as to the reliance which they placed upon the representations of the reliable agents of the grantOf, that the grantees expected to be invested with the entire interest of the grantor. The location, extent, and value of such interest could only be ascertained by expensive exploration and development. Mineral deposits in land undeveloped, held by tenants in common, are not the subject of actual partition in specie, either at law or in equity. The only methods which the grantees could have adopted, to acquire entire title in the minerals in their lands, were to purchase from their or have such interest sold under a decree of a court of equity. . The grantees desired to develop such property, and have a perfect title, so that they might realize all the benefits of their labor, skill, and expenditure. The habendum in the deed in no way restricts or qualifies the premises, but employs the same description of the subject-matter conveyed. We observe that, in the covenant of warranty, exception was made as to six tracts of land within the boundaries, which had been previously acquired by Avery and White; and we reasonably infer that if the grantor still owned an undisposed-of interest in the minerals, which was not intended to be conveyed, the attorneys in fact would have disclosed such interest by an exception in the deed. They well knew that the material inducement to the contract on the part of the grantees was to obtain a complete transfer of the entire interest of the grantor in order that they might accomplish their purpose which had been previously defeated by the outstanding interest of the grantor. The evidence shows conclusively that the attorneys in fact acted in good faith, and intended to convey, and believed that they did convey, all the mineral interest of their principal. We are strongly inclined to the opinion that the present claim of the plaintiff was an afterthought, not suggested by his agents, but induced by a recent examination of his old deeds, and a supposed discovery that some of his many reserved mineral interests were not embraced within the description of the subject-matter in his deed to the grantees. We are confirmed in this opinion by the fact that he asserted no claim to an unconveyed mineral interest for nearly 20 years after the execution of the deed, although he had knowledge that
company had made large expenditures in developing thew)Ilerals' and were in possession, claiming to hold the premises . in sever31ty. We have thus far chief1,y considered the force and effect of the deed in the light afforded by extrinsic evidence, as the most important object in the construction of all contracts is to ascertain the intention of the parties. But, independent of such evidence, we are ofopinioll that the deed, on its face, shows that the attorneys in fact of the grantor intended to convey, alld did convey, all the grantor's interest in the land. . In the first clause of the premises descriptive of the subject-matter, the grantor conveyed all the lands within certain boundaries. .This grant conveyed all the interest of the grantor, of every kind and descriptioIl, as there was no reservation or exception of the minerals, which .would pass with the land without such exception. The second cumulative clause in the premises, more particularly describing the subject-matter, is subordinate, and, if repugnant to the first,mul?t be rejected in construction. It cannot 1?a construed as implying an intention to except some other mineral interest from the operation of the deed. "An exception is ever a part of the thing granted," and must be made in apt words, of certain description, so as to keep it from paS&ing by the grant. Waugh v. Richardson, 8 Ired. 470. The two clauses in the premises are not :repugnant, and can be easily reconciled by construing the second . as embracing the entire tilineral inte:rest claimed by grantor in the lands mentioned in the..first clause. .. There is a well-settled rule of mention of one thingilllplies the legal construction that "the exclusion of.another." 2. Minor, Inst 961. This rille of law is also applicable in construing the covenant of warranty in this deed as an assurance that the grantees shall quietly hold and enjoy the lands granted against "the lawful claim of all and every person whatso. ever." . After full consideration ()f the transaction in the light of surroundiilg circumstances, and without placing any strained construction upon the language, we think the deed, on its face, clearly shows that the attorneys in fact of . the grantor. j,ntended to convey, and the grantees expected to be in:vested with, all the mineral interest of the grantor, and that the negotiation of sale had proceeded upon that understanding between the parties, and the legal effect and operation of the deed was to convey all the mineral interest of the gran· tor within the metes alld. bounds mentioned, and now estops him from claiming that all his interest was not thus conveyed.
VAN DUZEE v. UNITED STATES. (DIstrict Court, N. D. Iowa, E. D. January 13, 1894.)
1. CLERXSOF ·CoURT-FEES.
The clerk Is entitled to fees for making duplicate certified copies of the orders of court for the payment of jurors and witnesses. and of orrters directing the mar$hal to procure record books needed for the business of the cow·t, :butDot for a1Jlxlng the seal to the certificates . . thereto.