An Object Lesson in Deed Draftsmanship

January 18, 2017 § 1 Comment

When Cynthia and M.L. Culley conveyed a 26.7-acre parcel of land to J.E. Fowler in 1969, the deed included the following language:

LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this fate by grantors herein in favor of the City of Jackson, Mississippi.

A dispute arose between Suzannah McGowan and Stephen and Rowena Carmody, with both claiming ownership of the property through the Culleys. The special chancellor granted a partial summary judgment concluding that the deed was unambiguous and did not convey the excepted property described above. The Carmodys appealed.

In Carmody v. McGowan, decided January 3, 2017, the COA affirmed, with the opinion by Judge Fair:

¶2. A court interpreting a deed follows the same process as it does with contracts. Conservatorship of Estate of Moor ex rel. Moor v. State, 46 So. 3d 849, 852 (¶12) (Miss. Ct. App. 2010). We begin by looking at the language of the instrument itself as contained within its “four corners.” Pursue Energy Corp. v. Perkins, 558 So. 2d 349, 352 (Miss. 1990). “When an instrument’s substance is determined to be clear or unambiguous, the parties’ intent must be effectuated.” Id. “If the reviewing [c]ourt finds the terms of the contract to be ambiguous or subject to more than one interpretation, the case must be submitted to the trier of fact, and summary judgment is not appropriate.” Epperson v. SOUTHBank, 93 So.
3d 10, 17 (¶20) (Miss. 2012).

¶3. The deed at issue states that the Culleys “do hereby sell, convey and warrant unto J. E. Fowler the following described land and property lying and being situated in the First Judicial District of Hinds County, State of Mississippi, and being more particularly described as follows . . . .” This is followed by a single-spaced, indented description of a 26.7-acre tract, which concludes with the words:

LESS AND EXCEPT therefrom that portion of the above described property which is contained in Riverwood Drive and which is described in easement executed this date by grantors herein in favor of the City of Jackson, Mississippi.

It is undisputed that this refers to the property now in dispute. The Carmodys point to what immediately follows the above-quoted language, where the deed is no longer indented and returns to double-spaced lines, and recites that:

The warranty of this conveyance is subject to an easement for street purposes, executed this date herein, in favor of the City of Jackson, Mississippi, which easement is for an extension of Riverwood Drive.

Several other preexisting easements are then excepted from the warranty, and the deed concludes normally with signatures and acknowledgment.

¶4. The Carmodys argue that the deed should be read as a whole. See, e.g., Cherokee Ins. v. Babin, 37 So. 3d 45, 48 (¶8) (Miss. 2010). That is undoubtedly true, but they present no real argument as to how the warranty exclusion conflicts with or alters the meaning of the explicit and unambiguous “less and except” exclusion from the conveyance. The Carmodys contend only that the “less and except” clause renders the warranty exclusion redundant and that there is no apparent reason the grantors would want to retain ownership of the disputed parcel while selling the land surrounding it. These arguments invoke familiar canons of contract construction, but they are applicable only where the deed is first shown to contain some ambiguity. Pursue Energy [Corp. v. Perkins], 558 So. 2d [349] at 352 [(Miss. 1990)]; 26A CJS Deeds § 180 (2011) (“Construction aids are available only to interpret ambiguity in the language of the instrument . . . and are not to be invoked to contradict the plain language of the deed.”).

¶5. The Carmodys do not explicitly argue that the deed is ambiguous – indeed, the word does not even appear in their briefs on appeal. “The mere fact that the parties disagree about the meaning of [an instrument] does not make [it] ambiguous as a matter of law.” Turner v. Terry, 799 So. 2d 25, 32 (¶17) (Miss. 2001). Nor are we “at liberty to infer intent contrary to that emanating from the text at issue,” as the words employed by the parties are “by far the best resource for ascertaining [their] intent.” Facilities Inc. v. Rogers-Usry Chevrolet Inc., 908 So. 2d 107, 111 (¶7) (Miss. 2005). Likewise, redundancies do not make a deed ambiguous. See, e.g., Thornton v. Ill. Founders Ins., 418 N.E.2d 744, 747 (Ill. 1981).

¶6. “An ambiguity is defined as a susceptibility to two reasonable interpretations.” Dalton v. Cellular S. Inc., 20 So. 3d 1227, 1232 (¶10) (Miss. 2009). We can see no reasonable interpretation of the deed, read in its entirety, that does not give effect to the plain and unambiguous qualification that the conveyance is “less and except” the disputed property.

¶7. We conclude that the trial court correctly found the deed to be unambiguous and that the disputed property was expressly excepted from the conveyance upon which the Carmodys’ claim depends. The chancery court therefore properly granted summary judgment to McGowan.

I think that what the Carmodys unsuccessfully were trying to articulate was the argument that one may not on the one hand exclude something from the conveyance while at the same time making the warranty of the conveyance subject to the thing excluded. Either: (1) the easement is excluded (“Less and except …”), and therefore is not conveyed; or (2) the subject property in its entirety is conveyed, but subject to the easement. I think they were trying to say that the two provisions are irreconcilable. And, they noted, why would Fowler have wanted to hang on to ownership of a little chunk of the tract that was subject to an easement? If all of that is what they were getting at, I think they had a good point.

But, as Judge Fair points out, Carmody’s argument was more along the lines that the two provisions were merely redundant, which gets us nowhere, because an instrument may have many redundant provisions and not be ambiguous.

At any rate, more careful draftsmanship would have avoided this swivet. Either exclude the easement as the special chancellor found here, or expressly include it and make the conveyance subject to it. A little thought into how the property should be conveyed can go a long way toward avoiding problems for your client and/or successors in interest down the line.

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