There is one fact in this case about which there is no room for doubt, reasonable or otherwise, and that is that the majority opinion has defeated the, obvious and plainly expressed intention of the parties to this deed. The grantor reserved a one-half interest in all oil, gas and mineral rights. That reservation has been ignored, and the majority hold that a right expressly reserved was in fact conveyed. A new contract has been made for the parties, and this has been done by disregarding the unambiguous language which was employed and giving it a construction which the parties did not intend. The grantee purchased the land and a half interest only in the oil, gas and mineral rights, yet he is given the entire oil, gas and mineral rights. He has been given valuable rights which he did not buy and which the deed was not intended to convey. Such a result should not be reached unless required by positive law, and the majority opinion does not furnish that justification. The implications of the opinion will be so far reaching in the timber and mineral portions of the state that I am constrained to register my protest and dissent.
There is no question about the right of a landowner to convey timber or mineral rights apart from the land, *Page 243 or to convey the land and reserve these rights. The practice is so common that the General Assembly found it necessary to make provision for the separate assessment of these interests for purposes of taxation. By the act of April 7, 1905, provision was made for the separate assessment of timber rights. Section 9855, Crawford Moses' Digest. By the earlier act of March 1, 1897, provision was made for the separate assessment of mineral rights. Section 9856, Crawford Moses' Digest. The grantor, therefore, had the right to convey or to reserve all or any portion of the mineral rights. His plainly expressed intention to exercise that right should not be denied him unless some positive law requires that this be done, and I very respectfully, but very earnestly, insist that there is no necessity.
The case of Carl Lee v. Ellsberry, 82 Ark. 209,101 S.W. 407, 12 L.R.A. (N.S.) 956, 118 Am. St. Rep. 60, is chiefly relied upon by the majority. I think there has been a misapprehension of the holding in that case. There, as the opinion recites, an unconditional conveyance of the fee had been made, after which it was attempted to convey to the same grantee a conditional life estate. In distinguishing this opinion in the case of Fletcher v. Lyon, 93 Ark. 5, 123 S.W. 801, Chief Justice McCULLOCH said: "There the deed conveyed an estate of inheritance in lands. Words of grant were used which were sufficient, in the absence of qualifying words, to convey an estate in fee simple, and the habendum contained a proviso attempting to limit the estate to one only for life. This court held that the limitation contained in the habendum was repugnant to the granting clause, and was void."
In other words, two separate and inconsistent estates had been there conveyed to the same grantee. There was an irreconcilable repugnancy, and the question presented and there decided was which of these two estates was in fact conveyed. The rule of construction, that a deed is construed most strongly against the grantor could have been applied as of controlling effect. *Page 244
It was said in the case of Whetstone v. Hunt,78 Ark. 230, 93 S.W. 979, 8 Ann. Cas. 443, that "While it is a rule of law that, if there is a clear repugnance between the granting and habendum clauses in a deed, the latter must give way, upon the theory that the deed should be construed most strongly against the grantor, yet it is only where these clauses are irreconcilably repugnant that such a disposition of the question is required to be made." An extensive annotation of this Whetstone case appears in 8 Ann. Cases at page 445, and the annotator makes the comment that "When the court has exhausted every means of determining the actual intent of the parties, resort to the arbitrary and technical rules of construction becomes necessary. Thus, where the habendum is clearly repugnant to the premises, the habendum must give way to the premises. The court will declare the habendum to be void and will put into effect the technical intent as expressed in the premises."
There is no occasion here to resort to technical rules of construction to ascertain the intent of the parties to this deed, for there is no repugnancy here if we may read the deed in its entirety in determining the intention of the parties. There is a widespread misapprehension that we may look only to the granting clause of a deed to determine the estate or interest conveyed. This is not the law. In distinguishing the case of Fletcher v. Lyon, supra, from the Carl Lee case, supra, Chief Justice McCULLOCH said: "The rule announced in Carl Lee v. Ellsberry, supra, does not apply, as the whole of the premises of the deed must be considered together so as to give effect to it as a whole. Moreover, reservations, conditions or limitations not repugnant to the grant may appear in any part of a deed and be equally effectual. 1 Jones on Real Property in Conveyancing, 624; Martindale on Conveyancing, 121."
In the case of Fletcher v. Lyon, supra, the deed construed recited that "The grantors `do hereby grant, bargain, sell and convey unto the said Thomas R. Lyon, and unto his heirs and assigns forever, the following lands *Page 245 lying in the county of Woodruff and state of Arkansas, to-wit: (Here lands are described), containing 372 acres.'" The opinion, also, recites that the grantors in the deed reserved "the right to use for grazing or farm purposes the surface of so much of said premises as the said grantee shall not desire to use in connection with any lumber manufacturing, lumbering or logging operations which he may wish to conduct over or upon said premises, or any part thereof." It was said by Chief Justice McCULLOCH that to properly construe a deed it should be read in its entirety, and when so read the reservation of the beneficial interest above set out was valid and had not been conveyed away in the apparent grant of a fee-simple title appearing in the granting clause.
The effect of a conflict between the granting and habendum clauses as to the estate conveyed is the subject of an extensive annotation to the case of Hammond v. Hammond, 84 A.L.R. 1050, and many of our cases are there cited. The effect of the note is that the rule requiring the rejection of clauses repugnant to and inconsistent with the granting clause is one of construction only, to be employed only where the repugnancy cannot be reconciled. But all the courts do not employ it even then. The annotator says: "The modern and now widely accepted rule, the strongholds of which appear to have been Kentucky, North Carolina, and California, has for its cardinal principle the proposition that, if the intention of the parties is apparent from an examination of a deed `from its four corners' without regard to its technical and formal divisions, it will be given effect though, in doing so, technical rules of construction will be violated. And by these courts it is held that the rule that an habendum creating an estate contradictory or repugnant to that given in the granting clause must be rejected is not a rule of property, but is merely a rule of construction, which will be resorted to only where the court cannot determine which of the clauses was intended to be controlling." Many cases from numerous states are cited in support of this statement, but it may again be said that there is no repugnancy in this deed *Page 246 requiring the aid of technical rules of construction to ascertain the intent of the parties to this deed.
It would unduly extend this dissenting opinion to review our own numerous cases on the subject. The case of Stokes v. State, 121 Ark. 95, 180 S.W. 492, Ann. Cas. 1917D, 657, reviews a number of them, and quotes with approval from 8 R.C.L., 98, 100 and 101, of the chapter on Deeds, the true rule to be applied. See especially that portion of the quotation beginning where the quotation therefrom in the majority opinion concludes. I shall not again quote the statement of the law there appearing, but will be content to rest the question on a quotation from one of our latest cases on the subject. This is the case of Gravette v. Veach, 186 Ark. 544,54 S.W.2d 704. There a warranty deed had been executed to the town of Gravette. The deed contained the following reservation: "The above-described property is to be used for public park purposes and is to be under the control of the ladies of Civic Improvement Club of Gravette." The chancellor held the reservation valid, and in affirming that decree we said: "The appellant challenges the correctness of this decree, and invokes the well-settled rule that, where a grant is made in a deed of the title in fee, a subsequent clause limiting the absolute title, being in irreconcilable conflict with the title conveyed by the granting clause, is void. Carl Lee v. Ellsberry, 82 Ark. 209, 101 S.W. 407, 12 L.R.A. (N.S.) 956, 118 Am. St. Rep. 60; Levy v. McDonnell, 92 Ark. 324,122 S.W. 1002, 135 Am. St. Rep. 183; Veasey v. Veasey, 110 Ark. 389, 162 S.W. 45. The appellant contends that the granting clause conveys to the grantee the fee simple title, and that under the rule, supra, the clause quoted is void. It must be conceded that the rule contended for is the one established by our decisions, but the rule is not one of positive law, but rather one of construction to be applied where there is a clear repugnance between the nature of the estate granted and subsequent clauses in the deed, either in the habendum clause or elsewhere: for, in such cases, the courts are of necessity compelled to choose between the conflicting *Page 247 clauses, and it is then that the arbitrary rule is invoked. In cases where the intention of the parties may be ascertained from a consideration of the entire instrument and the several clauses may be reconciled, the rule contended for must yield to that cardinal rule of construction that the intention of the parties as drawn from the entire instrument must govern." The result there announced was reached because when the deed was considered in its entirety, technical rules of construction to the contrary notwithstanding, it was apparent what the parties intended and that intent was given effect. It is not necessary to impair the authority of the Carl Lee case, supra, to give effect to the intention of the parties to the deed here under consideration, for the reason that in the Carl Lee case there was an irreconcilable repugnancy between the estate conveyed in the granting clause and that as limited in the habendum clause. A grantor could not convey both a fee simple estate and a conditional life estate. It was necessary, therefore, to determine which estate had been conveyed; and it was held that the granting clause conveying the larger estate could not be limited by the habendum clause reducing that estate. But here there is no reason at all why the grantor might not convey the land to one person and the mineral rights to another; or to reserve a portion of those rights as he did do, in language too plain and unambiguous to admit of a doubt of any kind.
The authorities there cited fully sustain the conclusion reached and the declaration of law there announced.
I, therefore, dissent, and am authorized to say that Mr. Justice McHANEY concurs in the view that the reservation of an interest in the oil, gas and mineral rights is valid and should be upheld. *Page 248