Alexander v. Moody

Opinion by Mr. Justice Sterrett: One of the questions suggested by the record is whether Mrs. Rebecca Brown should not have been made a party to the bill, so that her right to a mortgage simultaneously with the conveyance, securing $2,000 purchase money, advanced by her in De-„ •cember, 1879, might have been considered and decided. In the third paragraph of the bill it is averred that the pur [556] chase money has been fully paid; but this is denied in the an* swer, wherein appellant says Mrs. Brown, a sister of John Moody, deceased, at his request advanced $2,000, with which that much of the purchase money was paid, under an agreement that the same shall be secured by a judgment bond and mortgage on the property, etc., and refers to the receipt, given when she paid the money. That paper, after acknowledging the receipt of the $2,000' from Mrs. Brown on account of Moody’s contract of July 1,. 1879, for purchase of the land therein described, provides that, in consideration of the sum thus advanced by Mrs. Brown for-Moody, appellant is to convey the land to him “and he to execute-a judgment bond to her for the amount, secured by mortgage on same property.” As to the $2,000 above referred to, it is not even alleged by-appellees that it was paid in any other way; and, if they claim the benefit of it as a payment on account of the purchase money,, they cannot in equity and good conscience repudiate the terms on which it was advanced by Mrs. Brown. She is at least entitled to an opportunity of proving the allegations contained in appellant’s answer, and that her brother was a party to or acquiesced in the arrangement. If she succeeds in doing so, the-court should decree that before the conveyance is made to ap-pellees, or simultaneously therewith, the sum advanced by her should be secured on the premises. Another subject of contention is the true construction of the-clause, in the agreement of July 1, 1879, excepting and reserving certain timber upon the land therein described, also all oil and gas in or under the same, “with free mining privileges of all kinds, right of way for roads of all kinds, also free ingress, and egress over, into, upon, and under said lands, any and all parts thereof at all times,” together with other rights and privileges therein specified. It is claimed by appellant that the language of a conveyance, executing the contract, should be such as to carry out its true intent and meaning, in forms of expression usual in approved conveyancing, and not in the very -words of the contract. He accordingly executed and tendered a deed, embodying the exceptions and reservations referred to, expressed in due form, and, as he contends, carrying out the true intent and meaning of the executory contract. [557] Construing the contract, without the aid of evidence dehors the instrument, we think his position to have been the view entertained by the learned master until he discovered what he regarded as the key to the proper construction of the agreement, viz., the expression contained in appellant’s letter of September 29, 1883, in which he says: “I want you to tell me by return mail what your family has to say to my offer to give them $100 in lieu of my omission to reserve the coal in the bottom lands. As a matter of fact my omitting the reserve can be of no possible good to your family, but I prefer to have all my titles alike and it may at some time be an advantage to me; and so I propose to give them $100, and hope it will be satisfactory to all of them.” This letter was addressed to one of the appellees after the decease of his father; and the master regarded it as conclusive evidence that the phrase, “with free mining privileges of all kinds,” and other expressions contained in the excepting and reserving clause of the agreement, was not intended to embrace coal and other mineral substances. In this he was mistaken. What was said by appellant in the letter referred to was merely an expression of opinion as to the construction of the agreement, and ought not to control the meaning of the language employed therein. In their bill plaintiffs below pray specific execution of the contract as written. There is no allegation or even a suggestion in the pleading that the language of the contract does not convey the real intention of the parties. If the agreement properly construed excepts the coal, surely the erroneous opinion or supposition of either of the parties cannot alter it. We are, therefore, of opinion that the learned court also erred in decreeing specific performance of the contract “with the reservations and conditions provided.for in said contract, as interpreted by the master’s report.” In view of all the circumstances, the costs should not have been imposed wholly on appellant. As the case now presents itself on the evidence before us, an equal division of the costs would have been more just and equitable. But, inasmuch as the case goes back for further proceedings, it may assume a different phase when a final decree is reached; and hence it is unnecessary to express any opinion upon the subject that might be [558] regarded as interfering with tbe sound discretion of the court below in finally passing on the question of costs. Decree reversed at the costs of the appellees, and record remitted, with instructions to proceed in accordance with the foregoing opinion.