IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-01236-COA STEPHEN CARMODY AND ROWENA CARMODY APPELLANTS

v. SUZ ANNAH MCGOWAN APPELLEE DATE OF JUDGMENT: 04/15/2015 TRIAL JUDGE: HON. HENRY L. LACKEY COURT FROM W HICH APPEALED: HINDS COUNTY CHANCERY COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANTS: C. VICTOR W ELSH III ATTORNEYS FOR APPELLEE: F. HALL BAILEY HEATHER MARIE ABY OW EN PATRICK LALOR NATURE OF THE CASE: CIVIL - REAL PROPERTY TRIAL COURT DISPOSITION: GRANTED APPELLEE PARTIAL SUMMARY JUDGMENT DISPOSITION: AFFIRMED: 01/03/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. This is a dispute over a strip of land border i n g r e s i d e n t i al p roperty owned by the litigants, who are neighbors. Both sides claim record t itle to the propert y d e r iving f rom Cy nthia and M.L. Culley

. At issue on appeal i s the S tephen and Rowena Carm ody ’s claim , which originates f

rom a deed t o J.E. Fowler in 1969. The c hancery court f ound that the deed did not conv e y t he disputed property , and thus t hat the Carm ody s had no claim to it. The

court then granted a partial sum m ary judgm ent to S uzannah McGowan, w hich was certif ieda s a f

i nal judgm e nt under Mississippi Rule of Civil Procedure 54(b). W e agree with t h e chancery court that the d eed was unam biguous and that i t did not convey the subject property , and so we af

f irm

. DISCUSSION ¶2. A court i nterpreting a d eed f o llow s t h e s a me p r o c e s s a s it does w ith contracts. Conservatorship of

Estate of Moor ex rel. Moor v. State , 46 So. 3d 849, 852 ( ¶12) (Miss. Ct. App. 2010). W e begin by looking at the language of the instrum ent itself as contained within i t s “ f o ur corners.” P ursue Energy Corp. v. Perkins , 558 So. 2d 349, 352 (Miss. 199 0 )

.

“ When an instrum ent’s s ubstance is determ i ned to be clear or unam biguous, t he par t i e s ’ intent m ust be ef f ectuated.” Id. “If the r e v iewing [ c]ourt f inds the term s of the contract to be am biguous or subject to m ore than one interpretation, the case m ust be subm i tted to the trier of f act, and sum m a ry judgm e nt is not a ppropriate.” Epperson v. SOUTHBank , 93 So. 3d 10, 17 (¶20) (Miss. 2012). ¶3. The deed at i ssue states that the Culley s “do hereby sell, convey and warrant unto J.
E. Fowler the f

ollowing described land and property ly i ng and being situated i n the First Judicial District of H inds County , State o f Mississippi, and b eing m ore particularly described

as f o l l o ws . . . . ” This is f

ollowed by a single-spaced, indented description of a 26.7-acre tract, which concludes with the words: LESS A ND EXCEPT t heref

rom that portion of the above described property w h ich is contained in Riverwood Drive a n d which is described in easem ent executed this d ate by grantors herein in f avor of the City of J ackson, Mississippi.
2It is undisputed that this ref ers t o t he property now in dispute. The C arm o dy s point to what im m ediately f

ollows the above-quoted language, where the deed is no longer indented and returns to double-spaced lines, and recites that: The w arranty of this c onvey ance is subject to an easem e nt f or street p urposes, executed this date herein, in f avor of the City

of Jackson, Mississippi, which easem ent is f

or an extension of

Riverwood Drive. Several other preexisting easem en t s a r e then excepted f rom the w arranty , and the deed concludes norm ally

with signatures and acknowledgm ent. ¶4. The Carm o dy s argue t hat t he deed should be read as a whole. See, e
. g ., Cherokee Ins. v. Babin , 37 So. 3 d 45, 48 (¶8) (Miss. 2010). That is undoubtedly true, b ut they present no real ar g u me n t a s to how the warranty exclusion conf licts with or a lters the m eaning of the explicit and unam

biguous “ less a nd except” exclusion f rom the convey a nce. The Carm ody s contend only that the “less a nd except” clause renders the warranty e xclusion redundant and that there is no apparent reason the grantors would want t o retain ownership of the disputed parcel w hile selling t he land surrounding it. These ar g u me nts invoke f am iliar canons of

contract construction, but they a re applicable only w here the deed is f irst shown to contain

som e am biguity

. Pursue E

nergy , 558 So. 2d at 352; 2 6A CJS De e ds § 180 (2011) (“Construction aids are available o nly to interpret am biguity in the language o f t h e i n s t rum ent . . . and are not to be invoked to contradict the plain language of the deed.”). ¶5. The Carm ody s do not explicitly argue t hat the deed is am b iguous

– indeed, the word does not even a

ppear in t heir brief

s on appeal. “The m ere f

act that the parties disagree about

3the m eaning of [ an instrum ent] does not m ake [ it] a m biguous as a m atter o f l aw.” Turner v. Terry , 799 So. 2d 25, 32 (¶17) (Miss. 2001). Nor a re we “at liberty t o inf er intent contrary
to that em anating f

rom the text at issue,” as the words em p loy ed b y the parties a re “by f ar the best resource f

or ascertaining [ their] intent.” Facilities Inc. v
. Rogers-Usry Chevrolet Inc. , 908 So. 2d 107, 111 (¶7) (Miss. 2005). Likewise, redundanc i e s d o n o t m ake a deed

am biguous. See, e.g., Thornton v. Ill. Founders Ins. , 418 N.E.2d 744, 747 (Ill. 1981). ¶6. “An am

biguity is def

ined as a susceptib i l i t y t o t w o r e a s o n a ble interpretations.” Dalton v. Cellular S. In c
. , 20 So. 3d 1227, 1232 ( ¶10) (Miss. 2 009). W e can see no reasonable interpretation of the deed, read in its entirety , that does not give ef f ect t o the plain and unam

biguous qualif

ication that the c o n v e y a n ce is “less and except” t he disputed property

. ¶7. W e conclude that the trial c ourt correctly f ound t he deed to be u nam biguous and that the d isputed property was expr e s s l y excepted f rom the c onvey ance upon which the C a rm ody s’ c laim depends. The chancery court theref ore p r o p e r l y g r a

n t e d s u m m a r y j u d g m e n t to McGowan. ¶8. T H E J U D G M E N T O F T H E CHANCERY COURT OF H I N DS C O U N T Y , F I R S T J UDICIAL DISTRICT, IS AFFIRMED. ALL COSTS O F T H I S A P P E A L A R E ASSESSED TO THE APPELLANTS. LEE, C .J., IRVING, P.J., BARNES, WILSON A N D G R EENLEE, JJ., CONCUR. GRIFFIS, P.J., ISHEE, CARLTON AND W ESTBROOKS, JJ., NOT PARTICIPATING.

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