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coals,' is not inconsistent with either dug out of the earth or obtained from construction contended for. The mines.' In Cleaveland's Mineralogy, words 'the same' relate to the thing page 1, the definition is given thus: reserved, but do not in any sense aid Minerals are those bodies which are in determining what it is, and the destitute of organization, and which words 'said coals' perform the same naturally exist within the earth or at office, and apparently relate to the its surface.' My conclusion is that same thing as do the words 'the same,' this paint stone passed by the grant, previously employed in the sentence." and that the defendants have a right

The case of HUDSON v. MCGUIRE (re to excavate and remove it, and to conported herewith) ante, 148, admitting vert it to their own use." that in the absence of restrictive

J. Sand. words a conveyance of “minerals" will include oil and gas, holds that where a In Staples v. Young [1908] 1 Ir. R. deed is so ambiguous and uncertain on 135, it appeared that the land in its face, and contains such limiting question was composed for the most and qualifying words as to put pur

part of sand, in the proportion of chasers for value on notice that it may

five sixths of sand and one sixth of not convey oil or

gas rights and

vegetable matter, below which was privileges, parol evidence is admissible pure sand, suitable for building purto show the intent of the parties.

poses, and still further down a belt of

blue clay which would hold water. It i. Paint stone.

was held that the sand did not pass In Hartwell v. Camman (1854) 10

under a reservation of "all mines and N. J. Eq. 128, 64 Am. Dec. 448, 3 Mor.

minerals that could or might be had or Min. Rep. 229, it was held that “paint found in and upon the said granted stone” passed under a conveyance of

premises." Fitzgibbon, L. J., said: mines and minerals.” The court said:

"Confining my opinion strictly to the “Can this stone paint, then, be fairly

3Irish acres held by the defendant, and naturally embraced in the term

I hold, on the evidence, that if the ‘mineral’? It is a body which is des

sand which he has been taking away titute of organization, and which is not his property, but is reserved as naturally exists within the earth. It

'mines and minerals,' nothing will be is below the surface; distinct from the left to him as the occupier and owner ordinary earth. It is in strata, and is of the lands except the ‘vesture' of the worked by the ordinary means of

land. The only 'surface' which is not mining. And although [a scientific

sand is the growing vesture and the witness] says that it is not in veins,

residue of decomposed vegetable but in strata, and that he would not

matter, mixed with sand, left over call the mode of extracting it mining,

from other years. 'Humus' is, I think, yet this test of his would exclude salt good Latin for that, and it is not cofrom the class of minerals; for salt,

extensive with solum. If the owner of too, is found in strata, and not in

the reservation, who must be the veins, and is obtained by shafts, and owner if the defendant is not, were to by the same mode of operation by carry away all the sand, he would which this material is extracted from

leave nothing except the débris of the earth. It is valuable for its grass or herbage, either growing at mineral properties, and, by a cheap

the time, or decaying from previous and easy process of grinding, is con years. We must find strong circumverted into a merchantable article stances to justify a construction which adapted to the mechanical and orna

would bring about that effect, as mental arts. It is embraced in the against one which would give the definition given by men of science to owner of the land a farm of sandy soil, the term 'mineral.' In Bakewell's and leave the local coal to the owner Mineralogy, page 7, it is said: “The of the reservation. The case may be term mineral, in common life, is tested by reversing the conveyancing, generally applied to denote substances and considering the effect of a grant


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by the owner in fee of the mines and gas have been held to be minerals.' minerals, and a subsequent grant or 20 Am. & Eng. Enc. Law, 2d ed. p. 683. demise of the lands subject to the There is no evidence of any usage to previous grant. If the grantee of the show that the word ‘minerals' was used mines and minerals could not cart in any other sense than as it is defined away all the sand,-practically the in the books. We think, then, that whole place,—what was he to leave unless there some qualifying behind? Unless he could take all the words in the instrument, showing a sand, there is no evidence that, if he contrary intent, the conveyance in this went down to any depth at any place case included the shale in question." on the defendant's holding, he would come upon anything except a continua

III. Rule in Pennsylvania. tion of the same sand which formed In Pennsylvania, in the absence of the surface, and which was five-sixths a clearly expressed intention to the of even the humus on the top. In

contrary, the term “minerals” is conshort, I find on the evidence that the strued in its ordinary popular sense sand on the defendant's land is ‘soil' as including metals and ores, but exor 'clay,' and is not 'mineral' in its

cluding oil and gas. Gibson v. Tyson character, either as soil or as clay." (1836) 5 Watts. 34, 13 Mor. Min. Rep. And see Hendler v. Lehigh Valley R. 72 (chromate of iron); Dunham v. Co. (1904) 209 Pa. 256, 103 Am. St. Kirkpatrick (1882) 101 Pa. 36, 47 Am. Rep. 1005, 58 Atl. 486, set out, infra, Rep. 696 (oil and gas); Silver v. Bush subd. III.

(1906) 213 Pa. 195, 62 Atl. 832

(same); Preston v. South Penn Oil k. Shale.

Co. (1913) 238 Pa. 301, 86 Atl. 203 In McCombs v. Stephenson (1907) (same). 154 Ala. 109, 44 So. 867, it appeared In accordance with the foregoing that the plaintiff had previously con rule it is held that the term “minerals” veyed to the defendant's grantor "all does not include oil or gas unless the the coal, ores, and other minerals and evidence is clear that the parties inmetals in, under, and upon" the land tended them to pass. Thus, in Dunham in question, and "all timber, water, v. Kirkpatrick (1882) 101 Pa. 36, 47 and stone upon the same necessary for Am. Rep. 696, wherein it appeared that the development, working, and mining there was no evidence that the parties of said coal and other minerals, and intended to include oil and gas, the the preparation of the same for the court said: “In popular estimation markets, and the removal of same.” petroleum is not regarded as a mineral It was admitted that “shale" is a kind

substance any more than is animal or of stone which is in layers, and that vegetable oil, and it can, indeed, only the defendant was utilizing it in the be so classified in the most general or manufacture of bricks. Denying the scientific sense. How, then, did the contention that the “shale" did not parties to the contract under conpass under the conveyance, the court sideration think and write? As sciensaid: "In view of the meaning of the tists; or as business men, using the word, and of the various decisions language and governed by the ideas bearing on its practical use, the Ameri of every day life? can and English Encyclopedia of Law To the same effect, see Silver V. gives what seems to be a workable Bush (1906) 213 Pa. 195, 62 Atl. 832, definition as follows: 'By the term wherein the court said: “ ‘Mineral' is "minerals” are meant all the sub not per se

term of art or of stances in the earth's crust which are trade, but of general language, and sought for and removed by man for presumably is intended in the ordithe substance itself. It is not limited nary popular sense which it bears to metallic substances, but includes among English-speaking people. It salt, coal, clay, stone of various sorts, may in any particular case have a etc., and even petroleum and natural different meaning, more extensive or


more restricted, but such different unqualified right to mine and take out meaning should clearly appear as in the whole of the same, without opentended by the parties."

ing for and transporting the same on On the ground that the decisions of and over the surface of said lot.” It the foregoing cases have become a rule was held that "stone" which was open, of property, the court, in Preston v. exposed to view, and readily removed South Penn Oil Co. supra, affirmed the by surface operations, was not dedoctrine.

signed to be excepted from the grant. However, where the evidence is Sand in the broadest sense, as beclear that the parties intended to in longing to one of the three great diviclude a particular mineral, due re sions of matter, animal, vegetable, and gard is given that intention. Thus, mineral, is a mineral. In its more rein Gibson v. Tyson, supra, it was stricted scientific sense, however, it held that a reservation of "all min may or may not be a mineral according erals" included chromate of iron, to its composition. A deposit of pure it appearing that the parties contem white quartz sand, suitable for the plated its presence and that the reser making of glass and other special use, vation was inserted in the deed for the would be within a reservation of "coal very purpose of embracing it.

and other minerals,” but common In Snowden v. Cavenaugh (1899) mixed sand, merely valuable as 10 Kulp, 1, it appeared that a grantor material for grading, would not be. excepted and reserved "all the coal Hendler v. Lehigh Valley R. Co. and other minerals and metals in and (1904) 209 Pa. 256, 103 Am. St. Rep. under the said lot, together with the 1005, 58 Atl. 486.

A. S. M.


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 mit the creditors to reach the excess return to owner.

over the homestead value, if no such 2. Property transferred by parent excess is shown, whether the conveyto child will not be directed to be re ance was fraudulent or not. turned to the parent in order to per [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 of the court.
Mr. G. E. Lovell, for appellant: 104 Wash. 589, 177 Pac. 682; Union

The transaction between George W. Securities Co. v. Smith, 93 Wash. 115, Butts and his daughter, Dollie E. 160 Pac. 304, Ann. Cas. 1918E, 710. Butts, was fraudulent.

Messrs. Samuel P. Weaver and S. H. 20 Cyc. 449, 451; Fisher v. Ward, Boyles, for respondents:

(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

Re Feas, 30 Wash. 51, 70 Pac. 270; of real property, being all of the Philbrick v. Andrews, 8 Wash. 7, 35 property standing in his name, to Pac. 358; Wiss v. Stewart, 16 Wash.

his daughter, Dollie E. Fish, a girl 376, 47 Pac. 736; Anderson v. Stadl

then of the age of about twenty man, 17 Wash. 433, 49 Pac. 1070; Whitworth v. McKee, 32 Wash. 98, 72

years, and who lived at home with Pac. 1046; Smith v. Ferry, 43 Wash.

her parents. On March 2, 1918, 460, 86 Pac. 658; Hookway v. Thomp- judgment was taken against him on son, 56 Wash. 57, 105 Pac. 153; Snell the note; execution was issued, and ing v. Butler, 66 Wash. 165, 119 Pac. a return made of “no property 3; Weaver v. First Nat. Bank, 76 Kan. found." Thereupon the appellant 540, 16 L.R.A.(N.S.) 110, 123 Am. St. began this action to have set aside, Rep. 155, 94 Pac. 273; Stephen-Putney

as fraudulent, the transfer from Shoe Co. v. White, Ann. Cas. 1913C,

Butts and wife to their daughter. 1283, no The real estate, being a homestead,

The property transferred constitutcannot be subject to the lien of plain- ed the homestead of Butts and wife, tiff's judgment.

the appellant saying in his brief, Traders' Nat. Bank v. Schorr, 20 "We are willing to admit that this Wash. 1, 72 Am. St. Rep. 17, 54 Pac. is a homestead." 543; Kenyon v. Erskine, 69 Wash. 110, The appellant's suit, then, 124 Pac. 393, 13 R. C. L. 613; White v. amounts to this: That it is asking Spencer, 16 Ann. Cas. 603, note; Lub

to have the homestead returned to bock v. McMann, 82 Cal. 226, 16 Am.

Butts and wife for the reason that St. Rep. 108, 22 Pac. 1145; Sanders v.

the transfer to their daughter was Russell, 86 Cal. 119, 21 Am. St. Rep. 26, 24 Pac. 852; Meikle v. Cloquet, 44

fraudulent, so that the lien of its Wash. 513, 87 Pac. 841; Mielke v.

judgment may attach to that resMiller, 100 Wash. 119, 170 Pac. 143.

idue which would remain after the George W. Butts had a right to sell deduction of the homestead exemphis homestead, even though he re tion, the statute providing for the ceived an inadequate consideration reaching of the excess in value of for it, or in fact no consideration at

real estate claimed as a homestead all.

over the amount exempted from exeMcKillip v. Farmers' State Bank,

cution. Traders' Nat. Bank V. Ann. Cas. 1917C, 1006, note; 21 Cyc.

Schorr, 20 Wash. 1, 72 Am. St. Rep. 528; Sieg v. Greene, 141 C. C. A. 79, 225 Fed. 955, Ann. Cas. 1917C, 1006;

17, 54 Pac. 543. It is self-evident First Nat. Bank v. Browne, 128 Ala.

that if the transfer to the daughter 557, 86 Am. St. Rep. 156, 29 So. 552; was of property which did not ex20 Cyc. 381-386; Kennedy v. First Nat. ceed in value the $2,000 exemption, Bank, 107 Ala. 170, 36 L.R.A. 308, 18 the question of whether the transfer So. 396.

was made in good faith or not is imThe court will always presume that material. Our first search, therea transaction has been honestly made

fore, will be into the evidence to and carried out, and the evidence of

determine whether there was any fraud must be clear and satisfactory. Rohrer v. Snyder, 29 Wash. 205, 69

proof establishing the value of the Pac. 748; Roberts v. Washington Nat.

homestead at the time of the transBank, 11 Wash. 555, 40 Pac. 225; Smith fer, and, if that search reveals no v. Doty, 91 Wash. 323, 157 Pac. 881; testimony showing that the value National Surety Co. v. Udd, 65 Wash. was in excess of $2,000, we are not 474, 118 Pac. 347.

called upon to look farther into the Mackintosh, J., delivered the transaction. opinion of the court:

The testimony of the respondents The appellant recovered a judge and their witnesses was that the ment against George W. Butts and homestead, in January, 1918, did wife on a promissory note, dated not exceed $2,000 in value, and that July 1, 1917. In January, 1918, the that was the sum which the daughnote was overdue, and payment had ter paid. The testimony of the ap

sessment rolls.

pellant is remarkably free from any ican Steel & Copper Plate Co. v. evidence as to the value, being con Bilter, 200 Ill. App. 175; Marine fined entirely to the testimony of a Coal Co. v. Pittsburgh, M. & Y. R. deputy county assessor, who testified Co. 246 Pa. 478, 92 Atl. 688; Girard that the assessment rolls, presuma Trust Co. v. Philadelphia, 248 Pa. bly for the year. 1918, showed that 179, 93 Atl. 947. the property had been assessed for The assessing officer who had ac$1,700, and that the ratio fixed by tually made an assessment might be the state board of equalization for qualified to testify as to market valassessment was 381% per cent of the ue, but the production of the books real value. This was not evidence at of the assessor's office and the tes

all of the fair mar timony of some employee of that ofEvidence-value of property-as

ket value. The pro fice as to their contents is not com

duction of assess petent evidence to establish the disment rolls showing the assessed puted matter of this case. value has often been held not to be There being, therefore, no eviany evidence of market value as be dence in the case showing that the tween parties other than the owner property transferred to the respondand the assessing municipality. Re ent Dollie E. Fish was in excess of Northlake Ave. 96 Wash. 344, 165 the value of $2,000, Pac. 113; Savannah, A. & M. R. Co.


it would be an idle v. Buford, 106 Ala. 303, 17 So. 395; and useless thing to homesteadMartin v. New York & N. E. R. Co. order the property 62 Conn. 331, 25 Atl. 239; Kenerson reconveyed to her parents, even if v. Henry, 101 Mass. 152; Ridley v. the testimony should be clear and Seaboard & R. R. Co. 124 N. C. 37, convincing that the transfer to her 32 S. E. 379; Anthony v. New York, was fraudulent. P. & R. Co. 162 Mass. 60, 37 N. E.

For the reasons stated, the trial 780; Pratt Consol. Coal Co. v. Mor

court properly found for respondton, 14 Ala. App. 194, 68 So. 1015;

ent. Judgment affirmed. Baltimore v. Carroll, 128 Md. 68, 96, Atl. 1076; Kelley v. People's Nat. F. Holcomb, Ch. J., and Parker, Ins. Co. 181 Ill. App. 1442; Amer- Main, and Mitchell, JJ., concur.


return to owner.


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


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