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coals,' is not inconsistent with either construction contended for. The words 'the same' relate to the thing reserved, but do not in any sense aid in determining what it is, and the words 'said coals' perform the same office, and apparently relate to the same thing as do the words 'the same,' previously employed in the sentence."

The case of HUDSON V. MCGUIRE (reported herewith) ante, 148, admitting that in the absence of restrictive words a conveyance of "minerals" will include oil and gas, holds that where a deed is so ambiguous and uncertain on its face, and contains such limiting and qualifying words as to put purchasers for value on notice that it may not convey oil or gas rights and privileges, parol evidence is admissible to show the intent of the parties.

i. Paint stone.

In Hartwell v. Camman (1854) 10 N. J. Eq. 128, 64 Am. Dec. 448, 3 Mor. Min. Rep. 229, it was held that "paint stone" passed under a conveyance of mines and minerals." The court said: "Can this stone paint, then, be fairly and naturally embraced in the term 'mineral'? It is a body which is destitute of organization, and which naturally exists within the earth. It is below the surface; distinct from the ordinary earth. It is in strata, and is worked by the ordinary means of mining. And although [a scientific witness] says that it is not in veins, but in strata, and that he would not call the mode of extracting it mining, yet this test of his would exclude salt from the class of minerals; for salt, too, is found in strata, and not in veins, and is obtained by shafts, and by the same mode of operation by which this material is extracted from the earth. It is valuable for its mineral properties, and, by a cheap and easy process of grinding, is converted into a merchantable article adapted to the mechanical and ornamental arts. It is embraced in the definition given by men of science to the term 'mineral.' In Bakewell's Mineralogy, page 7, it is said: "The term mineral, in common life, is generally applied to denote substances

dug out of the earth or obtained from mines.' In Cleaveland's Mineralogy, page 1, the definition is given thus: Minerals are those bodies which are destitute of organization, and which naturally exist within the earth or at its surface.' My conclusion is that this paint stone passed by the grant, and that the defendants have a right to excavate and remove it, and to convert it to their own use."

j. Sand.

In Staples v. Young [1908] 1 Ir. R. 135, it appeared that the land in question was composed for the most part of sand, in the proportion of five sixths of sand and one sixth of vegetable matter, below which was pure sand, suitable for building purposes, and still further down a belt of blue clay which would hold water. It was held that the sand did not pass under a reservation of "all mines and minerals that could or might be had or found in and upon the said granted premises." Fitzgibbon, L. J., said: "Confining my opinion strictly to the 3 Irish acres held by the defendant, I hold, on the evidence, that if the sand which he has been taking away is not his property, but is reserved as 'mines and minerals,' nothing will be left to him as the occupier and owner of the lands except the 'vesture' of the land. The only 'surface' which is not sand is the growing vesture and the residue of decomposed vegetable matter, mixed with sand, left over from other years. 'Humus' is, I think, good Latin for that, and it is not coextensive with solum. If the owner of the reservation, who must be the owner if the defendant is not, were to carry away all the sand, he would leave nothing except the débris of grass or herbage, either growing at the time, or decaying from previous years. We must find strong circumstances to justify a construction which would bring about that effect, as against one which would give the owner of the land a farm of sandy soil, and leave the local coal to the owner of the reservation. The case may be tested by reversing the conveyancing, and considering the effect of a grant

by the owner in fee of the mines and minerals, and a subsequent grant or demise of the lands subject to the previous grant. If the grantee of the mines and minerals could not cart away all the sand,-practically the whole place,-what was he to leave behind? Unless he could take all the sand, there is no evidence that, if he went down to any depth at any place on the defendant's holding, he would come upon anything except a continuation of the same sand which formed the surface, and which was five-sixths of even the humus on the top. short, I find on the evidence that the sand on the defendant's land is 'soil' or 'clay,' and is not 'mineral' in its character, either as soil or as clay." And see Hendler v. Lehigh Valley R. Co. (1904) 209 Pa. 256, 103 Am. St. Rep. 1005, 58 Atl. 486, set out, infra, subd. III.

k. Shale.

In

In McCombs v. Stephenson (1907) 154 Ala. 109, 44 So. 867, it appeared that the plaintiff had previously conveyed to the defendant's grantor "all the coal, ores, and other minerals and metals in, under, and upon" the land in question, and "all timber, water, and stone upon the same necessary for the development, working, and mining of said coal and other minerals, and the preparation of the same for the markets, and the removal of same." It was admitted that "shale" is a kind of stone which is in layers, and that the defendant was utilizing it in the manufacture of bricks. Denying the contention that the "shale" did not pass under the conveyance, the court said: "In view of the meaning of the word, and of the various decisions bearing on its practical use, the American and English Encyclopedia of Law gives what seems to be a workable definition as follows: 'By the term "minerals" are meant all the substances in the earth's crust which are sought for and removed by man for the substance itself. It is not limited to metallic substances, but includes salt, coal, clay, stone of various sorts, etc., and even petroleum and natural

gas have been held to be minerals.' 20 Am. & Eng. Enc. Law, 2d ed. p. 683. There is no evidence of any usage to show that the word 'minerals' was used in any other sense than as it is defined in the books. We think, then, that unless there are some qualifying words in the instrument, showing a contrary intent, the conveyance in this case included the shale in question."

III. Rule in Pennsylvania.

In Pennsylvania, in the absence of a clearly expressed intention to the contrary, the term "minerals" is construed in its ordinary popular sense as including metals and ores, but excluding oil and gas. Gibson v. Tyson (1836) 5 Watts. 34, 13 Mor. Min. Rep. 72 (chromate of iron); Dunham v. Kirkpatrick (1882) 101 Pa. 36, 47 Am. Rep. 696 (oil and gas); Silver v. Bush (1906) 213 Pa. 195, 62 Atl. 832 (same); Preston v. South Penn Oil Co. (1913) 238 Pa. 301, 86 Atl. 203 (same).

In accordance with the foregoing rule it is held that the term "minerals" does not include oil or gas unless the evidence is clear that the parties intended them to pass. Thus, in Dunham v. Kirkpatrick (1882) 101 Pa. 36, 47 Am. Rep. 696, wherein it appeared that there was no evidence that the parties intended to include oil and gas, the court said: "In popular estimation petroleum is not regarded as a mineral substance any more than is animal or vegetable oil, and it can, indeed, only be so classified in the most general or scientific sense. How, then, did the parties to the contract under consideration think and write? As scientists; or as business men, using the language and governed by the ideas of every day life?

To the same effect, see Silver v. Bush (1906) 213 Pa. 195, 62 Atl. 832, wherein the court said: "Mineral' is not per se a term of art or of trade, but of general language, and presumably is intended in the ordinary popular sense which it bears among English-speaking people. It may in any particular case have a different meaning, more extensive or

more restricted, but such different meaning should clearly appear as intended by the parties."

On the ground that the decisions of the foregoing cases have become a rule of property, the court, in Preston v. South Penn Oil Co. supra, affirmed the doctrine.

However, where the evidence is clear that the parties intended to include a particular mineral, due regard is given that intention. Thus, in Gibson v. Tyson, supra, it was held that a reservation of "all minerals" included chromate of iron, it appearing that the parties contemplated its presence and that the reservation was inserted in the deed for the very purpose of embracing it.

In Snowden v. Cavenaugh (1899) 10 Kulp, 1, it appeared that a grantor excepted and reserved "all the coal and other minerals and metals in and under the said lot, together with the

unqualified right to mine and take out the whole of the same, without opening for and transporting the same on and over the surface of said lot." It was held that "stone" which was open, exposed to view, and readily removed by surface operations, was not designed to be excepted from the grant.

Sand in the broadest sense, as belonging to one of the three great divisions of matter, animal, vegetable, and mineral, is a mineral. In its more restricted scientific sense, however, it may or may not be a mineral according to its composition. A deposit of pure white quartz sand, suitable for the making of glass and other special use, would be within a reservation of "coal and other minerals," but common mixed sand, merely sand, merely valuable as material for grading, would not be. Hendler v. Lehigh Valley R. Co. (1904) 209 Pa. 256, 103 Am. St. Rep. 1005, 58 Atl. 486. A. S. M.

AMERICAN STATE BANK, Appt.,

V.

GEORGE W. BUTTS et al., Respts.

Washington Supreme Court (Dept. No. 1)—July 20, 1920.

(111 Wash. 612, 191 Pac. 754.)

Evidence value of property

assessment rolls.

1. Assessment rolls are no evidence of the market value of the property assessed.

[See note on this question beginning on page 170.]

Fraudulent conveyance homestead

return to owner.

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2. Property transferred by parent to child will not be directed to be returned to the parent in order to per

mit the creditors to reach the excess over the homestead value, if no such excess is shown, whether the conveyance was fraudulent or not. [See 12 R. C. L. 506, 507.]

APPEAL by plaintiff from a judgment of the Superior Court for Whitman County (Truax, J.) in favor of defendants in an action brought to set aside as fraudulent a transfer of certain property by them to their daughter. Affirmed.

The facts are stated in the opinion Mr. G. E. Lovell, for appellant: The transaction between George W. Butts and his daughter, Dollie E. Butts, was fraudulent.

20 Cyc. 449, 451; Fisher v. Ward,

of the court.

104 Wash. 589, 177 Pac. 682; Union Securities Co. v. Smith, 93 Wash. 115, 160 Pac. 304, Ann. Cas. 1918E, 710.

Messrs. Samuel P. Weaver and S. H. Boyles, for respondents:

Re Feas, 30 Wash. 51, 70 Pac. 270; Philbrick v. Andrews, 8 Wash. 7, 35 Pac. 358; Wiss v. Stewart, 16 Wash. 376, 47 Pac. 736; Anderson v. Stadlman, 17 Wash. 433, 49 Pac. 1070; Whitworth v. McKee, 32 Wash. 98, 72 Pac. 1046; Smith v. Ferry, 43 Wash. 460, 86 Pac. 658; Hookway v. Thompson, 56 Wash. 57, 105 Pac. 153; Snelling v. Butler, 66 Wash. 165, 119 Pac. 3; Weaver v. First Nat. Bank, 76 Kan. 540, 16 L.R.A. (N.S.) 110, 123 Am. St. Rep. 155, 94 Pac. 273; Stephen-Putney Shoe Co. v. White, Ann. Cas. 1913C, 1283, note.

The real estate, being a homestead, cannot be subject to the lien of plaintiff's judgment.

Traders' Nat. Bank v. Schorr, 20 Wash. 1, 72 Am. St. Rep. 17, 54 Pac. 543; Kenyon v. Erskine, 69 Wash. 110, 124 Pac. 393, 13 R. C. L. 613; White v. Spencer, 16 Ann. Cas. 603, note; Lubbock v. McMann, 82 Cal. 226, 16 Am. St. Rep. 108, 22 Pac. 1145; Sanders v. Russell, 86 Cal. 119, 21 Am. St. Rep. 26, 24 Pac. 852; Meikle v. Cloquet, 44 Wash. 513, 87 Pac. 841; Mielke v. Miller, 100 Wash. 119, 170 Pac. 143.

(111 Wash. 612, 191 Pac. 754.) The land in controversy was the been demanded. On the 24th of that homestead of George W. Butts. month Butts transferred 200 acres of real property, being all of the property standing in his name, to his daughter, Dollie E. Fish, a girl then of the age of about twenty years, and who lived at home with her parents. On March 2, 1918, judgment was taken against him on the note; execution was issued, and a return made of "no property found." Thereupon the appellant began this action to have set aside, as fraudulent, the transfer from Butts and wife to their daughter. The property transferred constituted the homestead of Butts and wife, the appellant saying in his brief, "We are willing to admit that this is a homestead." The suit, appellant's then, amounts to this: That it is asking to have the homestead returned to Butts and wife for the reason that the transfer to their daughter was fraudulent, so that the lien of its judgment may attach to that residue which would remain after the deduction of the homestead exemption, the statute providing for the reaching of the excess in value of real estate claimed as a homestead over the amount exempted from execution. Traders' Nat. Bank v. Schorr, 20 Wash. 1, 72 Am. St. Rep. 17, 54 Pac. 543. It is self-evident that if the transfer to the daughter was of property which did not exceed in value the $2,000 exemption, the question of whether the transfer was made in good faith or not is immaterial. Our first search, therefore, will be into the evidence to determine whether there was any proof establishing the value of the homestead at the time of the transfer, and, if that search reveals no testimony showing that the value was in excess of $2,000, we are not called upon to look farther into the transaction.

George W. Butts had a right to sell his homestead, even though he received an inadequate consideration for it, or in fact no consideration at all.

McKillip v. Farmers' State Bank, Ann. Cas. 1917C, 1006, note; 21 Cyc. 528; Sieg v. Greene, 141 C. C. A. 79, 225 Fed. 955, Ann. Cas. 1917C, 1006; First Nat. Bank v. Browne, 128 Ala. 557, 86 Am. St. Rep. 156, 29 So. 552; 20 Cyc. 381-386; Kennedy v. First Nat. Bank, 107 Ala. 170, 36 L.R.A. 308, 18 So. 396.

The court will always presume that a transaction has been honestly made and carried out, and the evidence of fraud must be clear and satisfactory.

Rohrer v. Snyder, 29 Wash. 205, 69 Pac. 748; Roberts v. Washington Nat. Bank, 11 Wash. 555, 40 Pac. 225; Smith v. Doty, 91 Wash. 323, 157 Pac. 881; National Surety Co. v. Udd, 65 Wash. 474, 118 Pac. 347.

Mackintosh, J.. delivered opinion of the court:

the

The appellant recovered a judgment against George W. Butts and wife on a promissory note, dated July 1, 1917. In January, 1918, the note was overdue, and payment had

The testimony of the respondents and their witnesses was that the homestead, in January, 1918, did not exceed $2,000 in value, and that that was the sum which the daughter paid. The testimony of the ap

pellant is remarkably free from any evidence as to the value, being confined entirely to the testimony of a deputy county assessor, who testified that the assessment rolls, presumably for the year 1918, showed that the property had been assessed for $1,700, and that the ratio fixed by the state board of equalization for assessment was 38 per cent of the real value. This was not evidence at

Evidence-value of property-as

sessment rolls.

all of the fair market value. The production of assessment rolls showing the assessed value has often been held not to be any evidence of market value as between parties other than the owner and the assessing municipality. Re Northlake Ave. 96 Wash. 344, 165 Pac. 113; Savannah, A. & M. R. Co. v. Buford, 106 Ala. 303, 17 So. 395; Martin v. New York & N. E. R. Co. 62 Conn. 331, 25 Atl. 239; Kenerson v. Henry, 101 Mass. 152; Ridley v. Seaboard & R. R. Co. 124 N. C. 37, 32 S. E. 379; Anthony v. New York, P. & R. Co. 162 Mass. 60, 37 N. E. 780; Pratt Consol. Coal Co. v. Morton, 14 Ala. App. 194, 68 So. 1015; Baltimore v. Carroll, 128 Md. 68, 96, Atl. 1076; Kelley v. People's Nat. F. Ins. Co. 181 Ill. App. 1442; Amer

ican Steel & Copper Plate Co. v. Bilter, 200 Ill. App. 175; Marine Coal Co. v. Pittsburgh, M. & Y. R. Co. 246 Pa. 478, 92 Atl. 688; Girard Trust Co. v. Philadelphia, 248 Pa. 179, 93 Atl. 947.

The assessing officer who had actually made an assessment might be qualified to testify as to market value, but the production of the books of the assessor's office and the testimony of some employee of that office as to their contents is not competent evidence to establish the disputed matter of this case.

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ANNOTATION.

Valuation for purposes of taxation as evidence of value of property for other

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