Burgin v. Newman

• Decision Date: 08 December 1945
• Docket Number: 36437.
• Citation: 160 Kan. 592,164 P.2d 119
• Parties: BURGIN v. NEWMAN et al.
• Court: Kansas Supreme Court

164 P.2d 119

160 Kan. 592

BURGIN v. NEWMAN et al.

No. 36437.

Supreme Court of Kansas

December 8, 1945

Appeal from District Court, Pratt County; Clark A. Wallace, Judge.

Appeal from District Court, Pratt County; Clark A. Wallace, Judge.

Action by Mae Burgin against Olney D. Newman and others, to quiet title to land wherein defendants claimed title to fractional interests in and to the oil and gas and other minerals in place under such land. From a judgment for defendants plaintiff appeals.

Syllabus by the Court.

1. The provisions of G.S.1935, 79-420, a tax statute, construed and held: The purpose thereof was to provide for the separate listing, valuation and taxation of mineral interests in lands when severed from the fee to the surface of the land and owned by another or others.

2. Before a deed can operate as a valid transfer of title it must be delivered. Delivery is largely a matter of the grantor's intention to divest himself of title.

3. Possession by a grantee of a deed absolute in form is prima face evidence of delivery which can be overthrown only by clear and convincing evidence and the burden of showing nondelivery is upon the party who questions the delivery.

4. The failure of grantees in a mineral deed to record it within ninety days after execution, or to list the mineral interests conveyed for taxation, does not render the deed void where custody and control thereof are given to a bank and delivery is withheld for the benefit of the grantors, pursuant to agreement of the parties, until the occurrence of a designated event and not for the purpose of avoiding taxation.

5. The record in an action to quiet title to land and to minerals in place examined and held: (a) Plaintiff's demurrer to defendants' evidence was properly overruled; (b) defendants assumed and met all burden of proof by evidence clear and convincing to the trier of the facts; and (c) the mineral deed was recorded within ninety days after delivery.

A. D Weiskirch, of Wichita (George B. Collins, and C. L. Williams both of Wichita, on the briefs), for appellant.

R. F. Crick, of Pratt (B. V. Hampton, of Pratt, on the briefs), for appellees.

WEDELL Justice.

Plaintiff brought an action to quiet title to land against persons who claim title to fractional interests in and to the oil and gas and other minerals in place under the land. Defendants prevailed, and plaintiff appeals.

The principal question is whether a conveyance of a one-half interest in and to the oil and gas and other minerals in place from the plaintiff Mae Burgin and her husband, Gilbert Buegin, now deceased, to the defendants, Olney D. Newman and E. L. Trock, is void by reason of the grantees' failure to record the deed within ninety days after its execution or to list it for taxation pursuant to provisions of G.S.1935, 79-420. The grantees in that conveyance and their wives subsequently executed a one-fourth interest in and to the oil and gas and other minerals in place to the defendant Leland Scrogin. The latter instrument was recorded within ninety days after its execution. The question presented is whether the first mentioned deed is void. If it is void none of the defendants holds any title. If it is valid all defendants hold the title they claim.

In the joint answer of the defendants they alleged facts designed to show that plaintiff and her husband, grantors, did not deliver the deed to the grantees immediately upon its execution but placed it in a bank with the understanding and agreement it was to be held by the bank until the occurrence of a definite future contingency and that it was recorded within ninety days after the occurrence of such contingency. Pursuant to the issues thus joined by the pleadings defendants assumed the burden of proof. Plaintiff's general demurrer to defendants' evidence was overruled and plaintiff introduced her evidence. Plaintiff appeals from the adverse ruling on her demurrer and from the judgment rendered in favor of the defendants.

Before narrating essential portions of defendants' evidence it will be helpful to again state a few fundamental principles governing the ruling on a demurrer to evidence. In determining such a ruling courts do not compare the evidence of witnesses or evidence of the same witness on direct and cross-examination. Only the evidence favorable to the party adducing it is considered. All such evidence is admitted as true, and if it together with all inferences reasonably to be drawn therefrom in favor of the parties adducing it tends to establish a cause of action or defense the demurrer must be overruled. Zumbrun v. City of Osawatomie, 130 Kan. 719, 721, 288 P. 584; Robinson v. Short, 148 Kan. 134, 79 P.2d 903; Myers v. Shell Petroleum Corp., 153 Kan. 287, 110 P.2d 810; In re Estate of Bond, 158 Kan. 776, 781-782, 150 P.2d 343. Applying these principles, defendants' evidence in substance disclosed:

Plaintiff and her husband purchased the land involved from the defendant Newman with the understanding Newman was to retain an equal undivided one-half interest in and to the oil and gas and other minerals in place; in making the deed Newman however, did not reserve such interest to himself in the deed but executed and delivered a deed conveying his entire fee; pursuant to agreement plaintiff and her husband made a reconveyance of a one-half interest of the minerals in place to defendant Newman and to the defendant, E. L. Trock; the latter conveyance now in question was executed July 11, 1936; at the time of the transaction the land was subject to a mortgage which constituted a first lien on the entire fee; plaintiff and her husband assumed and agreed to pay the mortgage lien which was due in March, 1937; plaintiff and her husband were unable to pay the mortgage at that time and desired to obtain an extension thereof; they were obliged to arrange with the mortgagee for such extension and were in doubt concerning the manner in which the mortgagee would want the division of the mineral interests handled; Gilbert Burgin conferred personally with the representative of the mortgagee and was soon thereafter advised the mortgage extension agreement could be obtained; the mortgagee, however, insisted that the mortgage extension agreement be recorded prior to the recording of the mineral deed; the representative of the mortgagee discussed with Gilbert Burgin different methods which might be employed to handle the entire transaction; Gilbert Burgin concluded to adopt the particular method finally employed; that method was to place the mineral deed in escrow in the Coats State Bank where it was to be held until the mortgage extension agreement was consummated and recorded; Gilbert Burgin advised the representative of the mortgagee that was the method they had decided to employ; the deed was executed in the bank and was placed in an escrow box of the bank immediately upon its execution; it remained in the custody, dominion and control of the bank until June, 1937; the defendant Trock, one of the grantees, was an officer of the escrow bank; the Burgins were both present in the bank when the mineral deed was left with the bank; Gilbert Burgin died before the...