Clement v. R. L. Burns Corp., No. 50901

• Decision Date: 25 July 1979
• Docket Number: No. 50901
• Parties: Neal CLEMENT and Howard E. Stover et al. v. R. L. BURNS CORPORATION and F. William Foran et al.
• Court: Mississippi Supreme Court

Page 790

373 So.2d 790

Neal CLEMENT and Howard E. Stover et al. v. R. L. BURNS CORPORATION and F. William Foran et al.

No. 50901.

Supreme Court of Mississippi.

July 25, 1979.

Gerald, Brand, Watters, Cox & Hemleben, Martha W. Gerald, Jack W. Brand, Scott P. Hemleben, Jackson, Coleman & Coleman, West Point, Craig Castle, Jackson, for appellants.

Brunini, Everett, Beanland & Wheeless, Frank E. Everett, Jr., Vicksburg, Tubb, Stevens & Morrison, Murray Tubb, West Point, for appellees.

Before ROBERTSON, P. J., and LEE and COFER, JJ.

COFER, Justice, for the Court:

This is an appeal from the Chancery Court of Clay County in a cause wherein the appellants, Clement, Stover, et al., claiming ownership of, or a leasehold interest in, the oil, gas and other minerals on and under an area of land description of which is not in issue herein, brought suit entitled "Bill in the Nature of a Bill of Review and for Cancellation of Clouds." The defendants thereto, appellees herein, Roy N. Martin, et al., claiming the land and the oil, gas and minerals thereof, or a leasehold interest in the said oil, gas, and minerals, answered and, by cross bills, prayed that title to the land, surface, and oil, gas, and minerals thereof, be confirmed in certain of them, and that oil lease and other interests resulting from the oil lease be confirmed in others of cross complainants, and that all claims of complainants-appellants here be cancelled as clouds on their respective titles and interests.

After extensive hearing, the chancellor denied the complainants' prayers for relief, and largely granted the prayers of cross complainants. Concluding that the decree of the chancellor is amply supported by the evidence, we affirm the cause.

Appellants have assigned as errors the following:

(1) The chancellor's holding that the decree in an earlier confirmation cause was valid and Res judicata of the issues here, and that limitations and laches bar the present suit.

(2) The chancellor's holding that a tax sale (September 20, 1954), and tax deed issued thereon (February 2, 1957), were valid and effective to convey the secured mineral interest owned by the heirs of one Colonel (name and not title) Henry Hill in the lands.

(3) The chancellor's finding that the confirmation decree aforesaid was notice to the world of the claim of the tax sale purchaser, (Mrs. Roy N. Martin, predecessor in title of several of the defendants, her heirs, and through whom all defendants claim), of the mineral interest under the lands and that the claim was open, hostile, notorious, and possessed other attributes of adverse ownership.

(4) The chancellor's granting of cross-complainants' prayers with reference to removal of clouds and confirmation of title, and the chancellor's failure to grant the relief sought by complainants' amended bill of complaint.

On April 18, 1921, Colonel Henry Hill and his wife conveyed the lands to one T. B. Woolbright reserving "any oil, gas, or any minerals" in the land.

The said Hill had been married before, that wife becoming deceased in October 1913, and having first given birth to some ten children, many of whom had died before the hearing. He was married to his second wife in June, 1914. Five children were born unto this marriage, three of whom were deceased at the hearing. This wife died in October, 1966.

At some time before the conveyance mentioned above, Hill had lived in Kentucky, and had come to Mississippi, living first at Aberdeen, then moving to West Point, where the land conveyance took place. He lived there less than one year, then moved to Port Gibson. He left there and lived for a time at Salem, Virginia, and then returned to Port Gibson for three or four years, making his final departure from Mississippi in May, 1927.

He died in Virginia on December 19, 1934. Until events in the middle 1970's began happening, neither Colonel Hill nor any of his host of heirs and descendants had evidenced any interest in the minerals reservation, so far as shown by the record.

Through mesne conveyances, the land was acquired by Joseph L. Seitz, one of three brothers engaged in farming, sawmilling, and other businesses in and about West Point. Various lands were acquired in the name of one or another of these brothers, but treated as property of the Seitz partnership. In the early 1950's, another member was being taken into the partnership, and, preparatory thereto, the brothers made what appears to have been to them a satisfactory division of the real estate. The land here was assessed for taxes in the name of Joseph L. Seitz.

In the year 1953, this land was thus assessed, but the lady, wife of one of the Seitz brothers, who, for several years, attended to the payment of taxes for the brothers, was told by one of the brothers who could not be identified, to cause the land here not to be included in the payment, and that land was stricken from the Joseph L. Seitz receipt, and went unpaid.

On April 30, 1954, Joseph L. Seitz conveyed the land to J. Edward Seitz.

The Sheriff and Tax Collector of Clay County sold this land for the delinquent 1953 taxes on September 20, 1954, and, on instructions from someone purporting to speak for her, struck the land off to Mrs. Roy N. Martin, one and the same person as Mrs. Harriet Seitz Martin, J. Edward Seitz' daughter.

On February 2, 1957, the Chancery Clerk of Clay County executed to Mrs. Martin a tax deed on the land, reciting that the land had not been redeemed.

A suit was begun to confirm title in Mrs. Martin (hereinbefore set out as the person through whom all appellees ultimately claim) with Mrs. Martin's father J. Edward Seitz, her uncle Joseph L. Seitz, Colonel Hill and his wife, and others as defendants. A decree was entered in that cause consistent with the prayer of the bill of complaint, the decree being dated May 13, 1958.

After the September 20, 1954, tax sale, the land was assessed to J. Edward Seitz, and the record sufficiently supports the conclusion that the taxes thereon were paid in some manner in his name and also that Mrs. Martin repaid the tax money as the taxes accrued and were paid, although documentary evidence was only brought forward that she paid the taxes for 1968 and 1969. The assessment was changed into her name in 1969.

On May 15, 1973, Mrs. Martin executed to F. William Foran an oil and gas lease on the land, which was assigned to R. L. Burns Corporation. After this assignment, various transfers and assignments were placed of record, and R. L. Burns Corporation (Burns) placed on the oil and gas of this and hundreds of other acres of land a large mortgage. It is undisputed that Burns spent millions of dollars in its development of the block of land, which included the drilling of a well on this land resulting in the production of natural gas and condensate.

There were those who gained information that Colonel Henry Hill had made the "oil, gas, or any minerals" reservation in the April 18, 1921, deed hereinabove noticed, and there was a monumental undertaking to locate those claiming under or through him, which resulted in phenomenal success, oil and gas leases being procured from Colonel Hill's heirs in favor of J. C. Searcy, Jr. and John L. Burwell, Jr., who, with those heirs, brought this suit. The record reflects that these heirs began to be made aware of what they called attempted fraud on them on or about December 10, 1974, when they were contacted by an individual who had discovered the facts, and they assert that, on finding this information, they proceeded to prepare this suit. (The suit was begun February 23, 1976).

In their suit, they attack the tax sale and purchase by Mrs. Martin as being the product of fraud on her part and of her father, J. Edward Seitz, and her uncle, Joseph L. Seitz; they also assert timely redemption of the land by Joseph L. Seitz, and charge that the confirmation suit, which they attack as void on several grounds, was a part of their fraudulent scheme to deprive complainants-appellants of their minerals ownership. They claim constructive possession of the minerals from April 18, 1921, to Burns' activity beginning in 1974.

They prayed that the decree in the confirmation case be set aside, "by reason of collusion, extrinsic fraud, and lack of jurisdiction" (because of insufficiency of process); that there be cancelled as clouds on their title to the oil, gas and minerals, the tax deed to Mrs. Martin, her oil lease to Foran dated May 15, 1973; various assignments growing out of, and made under, that oil lease, and the deed of trust by Burns to Continental Illinois Bank and Trust Company.

Defendants' cross bills were for the cancellation of oil leases and other claims beginning with Colonel Hill's heirs that amount to clouds on cross complainants' titles or rights to or in the oil, gas, and minerals.

Complainants-appellants claim that the tax sale and the transaction thereafter were fraudulent and part of a fraudulent scheme to procure into the Seitz family, or more particularly into J. Edward Seitz and Mrs. Martin, his daughter, the oil, gas, and minerals reserved by Colonel Hill in 1921 and evidently long since forgotten by him and his heirs.

Appellants claim privity of estate existed between them and the owners of the surface of the land, and apparently contend that the surface owner was under a fiduciary duty to protect their rights. Black's Law Dictionary, Third Edition (1933), defines "privity of estate" as:

Privity of estate is that which exists between lessor and lessee, tenant for life and remainderman or reversioner, etc., and their respective assignees, and between joint tenants and coparceners. . . .

In Lipscomb v. Postell, 38 Miss. 476 (1860), it is said:

By the term privies, is meant those who stand in mutual or successive relationship to the same Rights of property. And privies are distributed into several classes, according to the manner of this relationship. Thus, there are privies in estate as...