#### EWING et al. v. TRAWICK.

No. 35620.

Supreme Court of Oklahoma.

April 14, 1953.

*183Arney & Barker, Clinton, for plaintiffs in error.

Donald T. Royse, Elk City,' Meacham, Meacham, Meacham & Meacham, Clinton, for defendant in error.

PER CURIAM.

The" plaintiffs in error were defendants below, and defendant in error was plaintiff below. They will hereafter be referred to as they appeared in thé trial court.

The plaintiff brought suit on September 6, 1951, to quiet title, alleging that he.was the owner in fee , simple of a tract-of land in Custer County, Oklahoma, from which had been reserved to the defendant Ewing 1⁄81⁄8 royalty ^ on oil, gas, coal or minerals. That the defendants, J. P. Bills and D. N. Bills; were claiming some right, title, lien or interest in or to said real estate, but in fact had none; that plaintiff and his grantors had been in open, visible, continuous and exclusive possession of said real property for more than fifteen years under claim of ownership and title and that the same was held by plaintiff, not under the permission of anyone, but adversely. Plaintiff prayed for judgment quieting title, to all of said real estate, except an undivided 1⁄81⁄8 interest in the oil, gas, coal and other minerals in and under said real estate, and asked that the title thereto be quieted in R. L. Ewing and Ada Ewing.

Defendants in their answer alleged that D. N. Bills died intestate and left as his sole and only heirs at.law his. widow and adult children, and that the heirs of said D. N. Bills had not been determined; that" said defendants said it was the intention of the said J. P. Bills and D. N. Bills, to reserve a 1⁄81⁄8 of. said minerals and that the scrivener, by inadvertence, referred to the same as 1⁄81⁄8 royalty. Defendants denied all .of the material allegations of plaintiff’s petition, except they admitted that plaintiff acquired title to the property by Warranty Deed from the Dallas Joint Stock Land Bank of Dallas, Texas. Defendants prayed that the heirs of D. N. Bills be determined under the laws of Oklahoma and that title to said 1⁄81⁄8 undivided interest in ■ and to the minerals in and under the premises described be quieted and confirmed in them and that their Warranty Deed be reformed to reflect that said answering defendants owned 1⁄81⁄8 of the minerals.

Plaintiff in his reply denies the allegations of the answer and alleged that ’if the deed of conveyance from said Bills was executed as alleged, said defendants would have no rights in said land for the.reason that" the conveyance from Bills was a Warranty Deed in which title to the surface and an undivided %ths interest in the minerals w;as warranted by the predecessors in title to -the grantors Bills, and the said Bilis’ Warranty Deed conveyed all the surface and %ths interest in" the minerals; that it, was 'the intention of the parties to except • a 1⁄81⁄8 interest only in said minerals which had been reserved by the said Ewings.

Upon order of the court, :the . defendant Max Ewing was. made party defendant, and R. L. Ewing and Ada Ewing filed disclaimers, stating they had conveyed .said land to their son, Max H. Ewing.

The defendant, Max Ewing, filed an answer . and cross-petition alleging . that • he owned 3⁄81⁄8 interest in all minerals in said land and asked the court to quiet his title thereto. . ..

Jury was waived and the parties stipulated that the affidavit of J. P. Bills might *be admitted in evidence and considered as testimony of that affiánt. After trial to the court, judgment was rendered for' plaintiff, quieting his title to said land, except an *184undivided 1⁄81⁄8 interest in the minerals, which was quieted in Max Ewing. Only the defendants J. P. Bills, and the heirs of D. N. Bills are appealing.

Defendants presented two' propositions in their brief, first, error of the court in refusing to sustain a demurrer to the petition, and to the evidence of plaintiff, and second, that the court admitted and considered incompetent, irrelevant and prejudicial testimony in arriving at its decision.

Plaintiff testified that he had lived on this land since 1938 and purchased it from the Dallas Joint Stock Land Bank of Dallas, Texas. The land involved is described as

> S1⁄2 of NEI/4, and Sy2 of NWJ4 and NWy4 of SW% and NE14 of SE14 of Section 28, Township 13 North, Range 30 West, Custer County, Oklahoma.

The Warranty Deed was introduced in evidence and is dated December 27, 1938, and recorded January 13, 1939, whereby the Dallas Joint Stock Land Bank of Dallas conveyed the above-described property, with other land, to H. L. Trawick, less certain royalities for a period of ten years from date, or so much longer as oil and gas may be produced from said land; that no oil or gas had been produced from said land nor any well drilled thereon; that he had been in the actual open, peaceable possession since be bought the land, farming it, and no one else had asserted any claim thereto until this lawsuit was filed, and that prior to the time he bought it, the Dallas Joint Stock Land Bank of Dallas was in possession since 1935. Plaintiff introduced Sheriff Deed to the Dallas Joint Stock Land Bank of Dallas, dated January 9, 1935, and recorded January 16, 1935, conveying all the interest May Belle Gholson and S. R. Gholson had on February 15, 1927, in the land in controversy and other lands; that plaintiff, never heard of the Bills until the oil play came up and he thought he had all the minerals until the Mid-Continent attorney called it to his attention in June, 1951. Plaintiff then offered in evidence the following deeds, which were objected to, admitted and exception saved:

> Exhibit 1: Warranty Deed from R. L. Ewing and Ada Ewing to B. C. Hudson and Girtha Hudson, his wife, dated October 28, 1916, which contained the following clause: “Parties of the first part reserves one eighth Royalty on Oil, Gas, Coal or minerals their heirs or assigns.”

> Exhibit 2: Warranty Deed from B. C. Hudson and Girtha Hudson, husband and wife, to J. P. Bills and D. N. Bills, dated September 1, 1917, which contained the following clause: “Parties of the first part reserves one eight royalty on oil, gas, coal or minerals, their heirs or assigns.”

> Exhibit 3: Warranty Deed from J. P. Bills, a single man, and D. N. Bills and Mattie Bills, husband and wife, to E. D. Barnes and James W. Young, dated December 15, 1919, which contained the following clause: “Parties of the first part reserve one eighth royalty on oil, gas, coal or minerals, their heirs or assigns.” This follows the description of the land. At the end of the warranty, this further clause appears: “And the said J. P. Bills and D. N. Bills and Mattie Bills hereby relinquish all their right, title and interest in and to the above described premises.”

> Exhibit 4: Warranty Deed from E. D. Barnes and Beulah Barnes, husband and wife, and James W. Young, and Lula Young, husband and wife, to C. H. Cantrell, dated September 21, 1920. Just preceding the warranty is this clause: “Parties of the first part reserve one-eighth (1⁄8) royalty on oil, gas, coal or minerals.”

> Exhibit 5: Warranty Deed from C. H. Cantrell and Dona Lee Cantrell, husband and wife, to W. L. Hutcheson, dated August 8, 1922, with no reservation or exception of minerals.

> Exhibit 6: Warranty Deed from W. L. Hutcheson and Mary Blanche Hutcheson, wife, to May Belle Ghol-*185•son, dated May 20, 1925. Following the description appears the following clause: “The party of the first part reserves one-eighth royalty on all gas, oil or other minerals on land described in section 28.”

Plaintiff’s witness W. A. Lewter, who Rad been in the banking business in Plam-xnon for forty years, testified that he knew the plaintiff and the land he purchased from the Dallas Joint Stock Land Bank of Dallas, J. P. Bills and D. N. Bills; that plaintiff and J. P. Bills had been custo-. ■mers of the bank; that he drew the deed from -Bills to Barnes and Young and took the acknowledgment of J. P. Bills; that Re remembered, putting the reservation clause in the deed, because it was in the former deed, to protect Bills against some royalty already disposed of and that he copied the reservation from another deed, and that in order to protect the Bills’ interest as best he could he added the clause, “and the said J. P. Bills, D. N. Bills .and Mattie Bills hereby relinquishes all their right, title and interest in and to the above described premises;” that said clause was put in there because it was agreed between the parties, and that that should be in there; that he is not a lawyer. On cross-examination, he testified he remembered this -deed because of this royalty question and denied he told Mrs. Allison that he did not remember it, and that he remembered about that deed and that exception; that J. P. Bills did not want to reserve 3⁄81⁄8 for himself; that he remembered because the -only deal was the royalty owned and he was trying' to write it against what was already gone and that no time in the deal did he know about additional royalty until Mrs. Allison called him; that it was discussed that a portion had already been conveyed and Mr. Barnes knew that-at the time.

Under the stipulation, the affidavit ' of J. P. Bills was admitted as what he would testify to if present. It stated that on December 15, 1919, either ’Ed Barnes or James W. Young, or both of them approached J. P. Bills and D. N. Bills to buy this land; that the deal was finally made; that Barnes or Young took D. N. Bills and J. P. Bills to Hammon, and asked Lewter to do the work; that Lewter was doing the work for Barnes and Young; that at that time the two Bills and the purchasers discussed the fact that there was 1⁄41⁄8 of the minerals already gone, and that the two Bills wanted to reserve another 1⁄81⁄8, and that all of the parties orally agreed to it before Lewter.

Next appears the affidavit of Aubrey Bills, stating that D. N. Bills is deceased, died intestate more than four years prior to April 2, 1952; that no court had determined the particular persons entitled to participate in the distribution of his estate; that at the time of his death he owned *Vieth*undivided interest in the minerals under said land and left as his sole and only heirs at law his wife and certain others.

Defendants’ witness, Iona Allison, testified that she is the daughter of J. P. Bills, who lives in Califiornia; that after the oil deal came out, she called Mr. Lewter and asked if he remembered the deed and he said “No,” and two weeks later she went to the bank and asked if he remembered drawing the papers in which her dad reserved 1⁄81⁄8, and that he said he didn’t know, he just fixed the papers “like your dad wanted me to.” When she heard Trawick had leased the land, she asked about her dad’s interest and he said it was too late, that it was already published in the papers. She said she did not know the suit-was filed until after he published it in the paper. That concluded the evidence.

If we are to adopt the defendants’ construction of their deed, then giving the same force to the other,deeds, there would be %ths of all the minerals reserved to various grantors. Other than defendants, no grantor, has claimed interest in the minerals, except the original reservation of 3⁄81⁄8 to the Ewings. The reservation or exception in each deed is practically identical. In addition, the Bills when conveying the land added the final clause which is significant of their intention at that time, stating: “And the said J. P. Bills, D. N. Bills and Mattie Bills hereby relinquish all their right, title and interest in and to the above described premises.” The evidence of the parties was conflicting.

*186In an action of purely equitable-cognizance, it is for the trial court to determine the credibility of the witnesses, and the weight and value to be given their testimony. McAfee v. Harden, 180 Okl. 546, 71 P.2d 463.

A cardinal rule in construing a deed is ascertaining the true intent of the makers, as that intent may be discerned from the instrument itself, taking it all together, considering every part of it and viewing it in the light of the circumstances surrounding the makers at the time of its execution; and their later acts in .connection, therewith may be considered'in arriving at -their intention". Case v. Case, Okl. Sup., 252 P.2d 432.

The terms “reserving” and “excepting” are used interchangeably .in deeds, and their technical meaning will-give-way to the manifest intent, even .though the technical term ■ to the contrary is used. Burns v. Bastien, 174 Okl. 40, 50 P.2d 377.

Giving effect to the above rules of law ■ construing the Bills deed and taking into consideration all of the - evidence, we hold- that the trial court did not ■ commit prejudicial error in "admitting and considering the other" deeds hereinabove-referred to.

.This court has so repeatedly -laid down the following-rule that it is unnecessary to cite authorities: ■ “In a case of equitable cognizance the appellate court will examine and weigh the evidence but the judgment of the trial court will -not be disturbed on appeal - unless ' it - appears that such judgment is clearly against the weight" of the evidence.”' '

Having considered the entire recr ord in-this case, together with the briefs, we are of the opinion that the judgment of the trial court is not clearly against the weight of the evidence and should not be disturbed on- appeal.

Affirmed.

■JOHNSON, V; C: 'j;, and' WELCH, CORN, DAVISON; O’NEAL, WILLIAMS, and BLACKBIRD', JJ., concur.--

This court acknowledges the services of Attorneys Frank T. McCoy, Wm. S. Hamilton and John T. -Craig, who as Special Masters aided in the preparation of this opinion. These attorneys were recommended by the Oklahoma Bar Association, approved by the Judicial Council, and appointed by the Court.