Barrett v. Kansas & Texas Coal Co.

Citations

• 70 Kan. 649
• 79 P. 150
• 1905 Kan. LEXIS 24

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Title and Ownership — Exception in Deed — Minerals. A deed to real estate contained the following provision: “This deed is made subject to the following exceptions, reservations, and conditions, to wit: . . . The said party of the first part hereby reserves the coal and all other mineral underlying said land.” Held, that this constituted an exception, not a reservation. The title to the coal remained in the grantor; not a mere easement to go upon the land to mine it.</p> <p>2. -Parol Testimony. There is not such ambiguity in the language quoted from the deed as to permit the introduction of parol testimony to change or vary the terms of the deed.</p> <p>3. -Abandonment. In this state the fee-simple title to real estate cannot be lost by mere abandonment.</p> <p>4. Practice, District Court — Election of Defenses. Ordinarily a party, after having deliberately selected his ground of defense and finding himself defeated thereon, should not be permitted so to shift it as to court the hazard of another battle.</p>