Born v. Bentley

• Citation: 246 P.2d 738,207 Okla. 21
• Decision Date: 15 July 1952
• Docket Number: No. 34453,34453
• Parties: BORN v. BENTLEY et al.
• Court: Supreme Court of Oklahoma

Page 738

246 P.2d 738

207 Okla. 21

BORN v. BENTLEY et al.

No. 34453.

Supreme Court of Oklahoma.

July 15, 1952.

Rehearing Denied July 29, 1952.

Syllabus by the Court.

1. Estoppel by deed is distinct from the doctrine of equitable estoppel or estoppel in pais in that estoppel by deed may be invoked where there is a complete absence of false representations or concealment of material facts, or of the other four essential elements to create ordinary equitable estoppel or estoppel in pais, as announced by this court in Rosser v. Texas Company, 173 Okl. 309, 48 P.2d 327.

2. Where a mineral deed conveying one-half interest in the minerals contains covenants of warranty and the only reference to an outstanding mortgage to a third party is to except it from the covenants against encumbrances, such exception does not extend to or affect the covenants of warranty, and where the mortgage is subsequently foreclosed and the property sold and reacquired by the grantors from the purchaser at the foreclosure sale, the after-acquired title to one-half the minerals would inure to the grantee or to his benefit under the equitable doctrine of estoppel by deed.

Melton, McElroy & Vaughn, Chickasha, for plaintiff in error.

Arnote, Arnote & Bratton, McAlester, for defendants in error.

PER CURIAM.

We shall refer to the parties as they appeared in the trial court.

Plaintiff, Bettie B. Born, filed this action in the District Court of Grady County, Oklahoma, to quiet title to seventy acres of land in Grady County, together with an undivided three-fourths interest in the mineral rights, against the five children and heirs at law of one William Redpath. The evidence to which the demurrer was sustained below discloses the following facts:

That the seventy acres involved was patented by the Choctaw and Chickasaw nations to William Redpath in 1905; that the plaintiff Bettie B. Born and her husband went into possession of said premises as tenants in 1923; that plaintiff and her husband later made a deal to buy the farm from William Redpath for $2450, it being understood that William Redpath was to except and reserve one-half the mineral rights.

In order, however, to obtain a loan on said premises, a fee-simple title was conveyed by proper warranty deed by William Redpath and his wife, Sula L. Redpath, to plaintiff's husband, E. E. Born, on October 19, 1926. Thereafter on November 16, 1926, E. E. Born and his wife, the plaintiff, executed a mortgage to this land to the Exchange Trust Company for $1000, together with a commission mortgage for $140. On November 17, 1926, a third mortgage was made back to William Redpath for $750 and the commission mortgage of $140 released of record. Thereafter on November 18, 1926, E. E. Born and his wife, the plaintiff Bettie B. Born, executed and delivered to William Redpath a mineral deed in the usual form conveying an undivided one-half interest in the mineral rights in and under this seventy acres. The habendum and warranty clause in the mineral deed is quoted from the record as follows:

'To have and to hold the above described property, together with all and singular the rights and appurtenances thereunto and in anywise belonging, unto the said grantee, his heirs and assigns forever, free, clear and discharged of and from all former grants, taxes, mortgages and other liens and encumbrances of whatever nature and kind soever, except mortgages to Exchange Trust Company, and warrant the title to the same, and they do hereby bind their heirs, executors and administrators, to warrant and forever defend all and singular, the title to the same unto the said William Redpath, Sr., his heirs and assigns against every person whomsoever, lawfully claiming or to claim the same or any part thereof.'

The Exchange Trust Company mortgage of $1000 was later assigned to the University of Tulsa, which on May 2, 1932, foreclosed the mortgage, the plaintiff and her husband and William Redpath being made parties to the foreclosure suit. William Redpath filed an answer and cross-petition setting up his third mortgage and asked for foreclosure of same against the defendants Bettie Born and E. E. Born, but made no mention of his one-half interest in the mineral rights in said premises. The University of Tulsa bid in the property at sheriff's sale and a sheriff's deed was duly issued as provided by law. The proceedings appears to be regular in all respects. The plaintiff and her husband remained in possession of said premises as tenants of the University of Tulsa, and on March 15, 1936, plaintiff purchased in her own name the land and three-fourths of the mineral rights from the University of Tulsa. The University of Tulsa reserved and excepted one-fourth interest in the mineral rights.

Plaintiff thereafter, on June 17, 1947, filed her petition to quiet title to the land and an undivided three-fourths interest in the mineral rights therein, and made the five children, who were the sole and only heirs at law of William Redpath and his wife, Sula L. Redpath, both deceased, parties defendant. The defendants in their answer and cross-petition plead that under the doctrine of after-acquired title, the heirs at law of William Redpath were entitled to one-half of the mineral rights and that the plaintiff was estopped from setting up against the heirs of William Redpath, deceased, her subsequent deed from the University of Tulsa, since Bettie B. Born's power to contract made the covenants of warranty in her husband's deed to William Redpath to one-half the mineral rights binding on her, and that she was estopped to deny her warranty grantee's title to one-half the mineral rights. Plaintiff in her reply and answer to defendants' cross-petition alleged that the mineral deed referred to excepted from the warranty the mortgage under which the property was later foreclosed by the University of Tulsa, and that plaintiff accordingly was not estopped to assert her title as against said mineral deed, which plaintiff contended was extinguished in the foreclosure proceedings.

While this case was pending appeal, this court on April 1, 1952, handed down four decisions which apply the doctrine of estoppel by deed to the assertion of after-acquired title by grantor as against the grantee in a mineral deed containing unconditional covenants of warranty. We refer to Equitable Royalty Corporation v. Hullet, Okl.Sup., 243 P.2d 986; Hanlon v. McLain, Okl.Sup., 242 P.2d 732; Bliss v. Wilcox Oil Company, Okl.Sup., 242 P.2d 739; and Triangle Oil Corp. v. Graves, Okl.Sup., 242 P.2d 740.

The facts in Equitable Royalty Corporation v. Hullet, above cited, would be on all fours with the facts in the instant case, except that the habendum and warranty clause there made no mention of the outstanding mortgage of record, while in the instant case the mortgage to the Exchange Trust Company is expressly excepted from the covenants in the mineral deed against encumbrances. It is contended by the plaintiff that the estoppel by deed and after-acquired title doctrine are not applicable because of this exception.

The attorneys for defendants have cited cases from Minnesota and North Dakota holding that where the only reference in a general warranty deed (as in this case) to an outstanding mortgage is to except it from the covenants against encumbrances, the exception does not extend to or affect the covenants of warranty, and any title thereafter acquired by grantor through the foreclosure of a mortgage will inure to the...