
    ROGERS et al. v. KINNEY et al.
    No. 17009
    — Opinion Filed Sept. 28, 1926.
    Rehearing Denied Nov. 30, 1926.
    (Syllabus.)
    Deeds — Construction—Parol Evidence.
    A court of equity will look at the real object of a deed and the intention of the parties, and will compel the fulfillment of both, and, if possible, the intention of the grantor' will be gathered from the whole Instrument. If the intention of the parties to the deed is plain, parol evidence is not admissible to .prove an intention d'fferent from the terms of the deed, but-- where - a deed possesses an element of uncertainty, parol evidence, the., admission of the parties, and other extraneoiis circumstances may be proved to ascertain its true meaning.
    
      Error from District Court, Creek County; C. H. Baskin, Assigned Judge.
    Action by Robert Rogers and others against George W. Kinney and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Van H. Alberlson and T. L. Blakemorc, for plaintiffs in error.
    Stuart, Sharp, Cruce & Coakley, E. J. Doerner, Paul P. Pinkerton, and M. W. Eddleman, for defendants in error George W. Kinney and Chas. Page.
    Conn Linn, for defendant in error March Oil Company.
    James B. Diggs, William C. Liedtke, and Redmond S. Coie, for defendant in error Gypsy Oil Company.
   PHELPS, J.

Cheparn Rogers inherited from his deceased wife an undivided 9-48ths interest in the land constituting the subject-matter of this controversy. On September 28. 1908, he conveyed to Charles Page, by quitclaim deed, a certain interest in the land, the recitation in the deed being:

“Do hereby grant, bargain, sell, quitclaim and convey unto Charles Page, all my undivided three twenty-fourths (3-24ths) interest in the following described real property and premises, situated in Creek county, state of Oklahoma, to wit:” (Here follows a description of the land).

On the same day said Cheparn Rogers, together with the owners of the remaining undivided interest in the land, who had also conveyed their interest therein to Page, all of them being full-blood Creek Indians, made application to the county court of Creek county praying for an order of that court approving such deeds, reciting in such application that they had conveyed “to said Charles Page all of their right, title and interest in and to” said land. Upon the hearing of this application the county court entered its order finding that the grantors had conveyed “to said Charles Page all of their right, title and interest in and to” the land in question. Page and his grantees and assignees have remained in possession of the land uninterruptedly since that time. In 1910 Cheparn Rogers died. On January 26, 1924, plaintiffs in error, claiming to be heirs at law of Cheparn Rogers, filed their action in the district court of C”eek county, claiming a l-16th interest in the land.in question and praying that their title thereto be quieted, it being their contention that Cheparn Rogers inherited from his deceased wife an undivided 9-48ths interest in the land and that his deed to Page conveyed only .a 3-24ths interest, and that they, as heirs of Cheparn Rogers, inherited from him the 1-16tii interest, this being the difference between the amount he inherited from his deceased wife and the amount he conveyed to Page. Defendants claim that, notwithstanding the fact that the deed to Page recited that it conveyed a 3-24ths interest in the land, it in fact conveyed Rogers’ entire 9-4ths interest therein. With the issues thus joined the cause went to trial, resulting in judgment for the defendants, to reverse which this appeal is prosecuted.

The sole question to be determined here :'s whether the deed from Rogers to Page conveyed all the interest that Rogers had in the laud, or whether it conveyed an undivided 3-24th interest and Rogers retained a 1-16th interest. The whole case, therefore, turns on the force and effect of the deed.

It is 'contended by plaintiffs in e.ror that the deed conveying “all my undivided throe twenty-fourths (3-24tlij Interest” is plain and unambiguous upon its tace, and needs no construction or interpretation ainfl That the court erred in allowing defendants to introduce evidence explaining the intent of the parties when the conveyance was made, citing Romans v. Shannon, 80 Okla. 199, 195 Pac. 298, holding that:

“The language used, in a contract ’is to govern its interpretation, and, if such language Ts clearly explicit and does nor involve uncertainty, the words used are to he understood In th<v‘r ordinary and proper sense, and when the language is plain and unambiguous, extrinsic evidence as to its meaning is not admissible.”

Counsel also cite Strange v. Hicks, 78 Okla. 1, 188 Pac. 347, where this language is used:

“The paramount rule for the construction of a contract is to ascertain the intent of the parties at the time the contract was entered into and to give effect to same if it can be done consistent with legal principles. If the language of a contract is such as to clearly show the intent of the parties, then there is no need to apply any technical rulen of construction, 'or where there is no doubt, there is no room for construction.’-’

They also cite Wolf v. Blackwell Oil Co., 77 Okla. 81, 186 Pac. 484, holding that:

“The language of a contract is to govern its interpretation, if the language is clear and explicit and does not. involve an absurdity, and the whole of such contract is to be taken together so as to give effect to every part, if reasonably practicable, each clause helping to interpret the others, and the words to he understood in their ordinary and popular sense, unless used by the parties in a technical sense.”

There is no doubt as to the correctness of this rule, the question here being as to its proper application to the facts as disclosed by this record. It is contended by plaintiffs in error that the deed in question was p.a.n and unambiguous in its terms and, the.e-fore, the court erred in admitting extrinsic evidence to explain its terms. Upon the other hand, it is claimed by defendants that it it had been the intention of Rogers to convey only a 3-24ths interest and retain a l-16th interest, the deed would'have so recited that fact, instead of reciting that the grantor conveyed “all my undivided three twenty-fourths (3-24tlis) interest,” and that in view of the fact that the language of the deed leaves a doubt as to whether the grantor intended to reconvey all of his undivided interest in the land, or whether he merely intended to convey a 3-24ths interest and still retain a sixteenth Interest, that the trial court properly adm'tted the evidence to show the intention of the parties.

We concede that the question between the admissibility and the inadmissibility of the evidence, based upon the deed in this case, is a very close one, but, after considering all the facts, the trial court saw fit to admit the evidence, and we cannot say. after carefully examining the record, that it committed error in so doing.

The following rule is laid down in 22 C. J. page 1192:

“A latent ambiguity arises when the writing upon its face appears clear and unambiguous, but there is some collateral matter which makes the meaning uncertain; and it is so well established as to be beyond all possible dispute that parol or other extrinsic evidence is always admissible to explain a latent ambiguity in any written instrument.

It seems clear that the language .of the deed comes within this rule, for the recitation that it conveys “all my undivided three twenty-fourths (3-24tlis) interest” would lead one to the conclusion" that the grantor thereby intended to convey all the interest he had, and if the grantor did so intend, the equity powers of the court may be invoked to enforce such intention.

Then, if the evidence was properly admitted, there is no question but that after such evidence was admitted, the court reached the proper conclusion based thereon. One witness testified that he was present at the time the parties were discussing the transaction and some question was raised as to the validity of the deed which conveyed less than the whole interest, unless the deed recited the specific interest so conveyed, which discus'sion resulted in writing into the blank deed the 3-24ths interest instead of having the deed recite that it conveyed all of grantor’s undivided interest without specifically mentioning what the undivided interest amounted to. Another witness testified that it was the intention of the grantor to convey and the intention of the grantee to purchase all the interest and estate which the grantor had in ihe land in question. This evidence is not contradicted or disputed.

In Peters v. McLaren, 218 Fed. 410, it is said:

“A court of equity 'looks at the real object of a deed and the_ intention of the parties and will compel the fulfillment of both. Hughes v. Edwards, 9 Wheat. 489, 494, 6 L. Ed. 142. If possible, their intention will be gathered from the whole instrument. Martin v. Jones, 62 Ohio St. 519, 525, 57 N. E. 238; Williams v. Paine, 159 U. S. 55, 76, 18 Sup. Ct. 279, 42 L. Ed. 658. If -their intention is plain, parol evidence is not admissible to prove an intention different from the terms of the deed. Lessee of Barton v. Heirs of Morris, 15 Ohio, 408, 424; Hubbird v. Goin, 137 Fed. 822, 70 C. C. A. 320 (C. C. A. 8). But when a deed possesses an element of uncertainty, paro'l evidence, the admissions of the parties, and other extraneous circumstances, may he proved to ascertain its true meaning. McAfferty v. Conover, 7 Ohio St. 99, 104, 70 Am. Dec. 57; Reed v. Proprietors, etc., 8 How. 274, 288, 289, 12 L. Ed. 1077; Gill v. Fletcher, 74 Ohio St. 295, 304, 78 N. E. 433, 113 Am. St. Rep. 962.”

In Ramey v. Stephney, 70 Okla. 87, 173 Pac. 72, it is said:

"A cardinal rule of construction is that a grant must be construed to effect the plain intent of the grantor, and if that intent is plain it controls, regardless of inconsistent clauses which are to be reconciled with the intent deduced from the entire instrument.”

And in Smart v. Bassler, 101 Okla. 39, 223 Pac. 352, this court said:

“In the early decisions much importance was attached to the language used in the different clauses of a deed, but the modern tendency is to ignore the technical distinctions between various clauses and to ascertain, if possible, the intention of the grantor from the entire instrument without undue preference to any part.”

In this connection it may properly be observed that the acts, declarations, and conduct of the parties at the time of the execution of the deed and subsequent thereto before any controversy had arisen over the meaning of certain clauses of the deed may be considered in determining what the Intention of the parties was.

In Rider v. Morgan, 31 Okla. 98, 119 Pac. 958, this court said:

Note. — See 18 0. J. p. 252, §198; p. 256, §203 ; 22 C. J. p. 1180.. §1573; pp. 1182, 1183, §1581; 8 R. C. L. pp. 1035-1041; 2 R. O. L. Supp. p. 710; 4 ¡R. O. L. Supp. p. 587 ; 5 R. O. L. Supp. p. 492.

“It is a well-seltled rule that where the meaning of the terms used in a written contract are not clear, the subsequent acts of the parties showing the construction they have put upon the agreement themselves, are to be looked to by the court.”

We conclude, therefore, that it was the intention of grantor to convey his entire interest by the deed in question, and that the trial court committed mo error in so finding, and its judgment is affirmed.

NICHOLSON, C. J., BRANSON, V. O. J., and MASON, LESTER, HARRISON, HUNT, and RILEY, JJ., concur.  