Cuff v. Koslosky

Decision Date26 September 1933
Docket NumberCase Number: 20892
Citation165 Okla. 135,1933 OK 487,25 P.2d 290
PartiesCUFF v. KOSLOSKY
CourtOklahoma Supreme Court
Syllabus

¶0 1. Execution--Interest Under Mineral Deed Required to Be Appraised Before Sale Under Execution.

A mineral deed which purports to convey an interest in and to the oil and gas and minerals lying in and under a certain tract of land, and the unaccrued royalty therefrom, is such an interest in the land as to come within the provisions of section 703, C. O. S. 1921 [O. S. 1931, sec. 450], under the classifications of lands and tenements, and before a valid sale can be made of such an interest after judgment under an execution, said interest must be appraised.

2. Same--Sale Without Appraisement Held Void.

Where property conveyed by mineral deed as outlined in syllabus 1 was sold after judgment under an execution without appraisement, such sale is void.

3. Same--Execution Sale Held Properly Vacated.

Record examined. Judgment affirmed.

Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.

Action by J. J. Cuff against Abe Koslosky, now known as Charles A. Lasky. Motion of defendant to set aside judgment and order confirming execution sale and cancel sheriff's deed sustained, and plaintiff appeals. Affirmed.

Goode, Dierker & Goode, for plaintiff in error.

Morrie Kirschner and Disney, Wheeler & Alcorn, for defendant in error.

McNEILL, J.

¶1 This case involves the confirmation of the sale of mineral rights under a mineral deed. The parties will be referred to as they appeared in the trial. The plaintiff in error, plaintiff below, J. J. Cuff, commenced an action against defendant in the district court of Pottawatomie county on March 19, 1924, to recover personal judgment on some notes. An attachment order was issued against the defendant, and an undivided one-half interest in the oil, gas, and mineral rights in a certain tract of land situated in said county was attached and appraised. Service was obtained upon said defendant by publication, and on June 2, 1924, the trial court rendered a default judgment against said defendant, sustaining the attachment and ordering said property attached and sold. The property was thereafter sold after said judgment, without appraisement, at a sheriff's sale to plaintiff, and on July 14, 1924, upon motion of plaintiff, the court entered an order confirming said sale, and ordered that the sheriff of said county make and execute to said purchaser at said sale a good and sufficient deed for said property sold.

¶2 On February 28, 1927, said defendant filed his amended motion to vacate and set aside said judgment and order confirming said sale. The plaintiff filed a motion to strike the amended motion. The same was overruled. A demurrer was then interposed to said amended motion on May 17, 1929. The same was overruled. On admission in open court by the defendant that the principal judgment sustaining the attachment was valid, the plaintiff elected to stand upon said demurrer, and the court rendered judgment vacating the sale, order of confirmation, and canceling the sheriff's deed. The plaintiff in his petition in error presents the following specifications in error, to wit:

"(1) That said court erred in overruling the motion of plaintiff in error to strike from the files the amended motion to vacate judgment and order of confirmation of sale of the defendant in error.
"(2) That said court erred in overruling the demurrer of plaintiff in error to the motion and amended motion of defendant in error to vacate judgment, sale and order of confirmation.
"(3) The court erred in vacating the sale and order of confirmation thereunder and canceling the sheriff's deed.
"(4) The court erred in not rendering judgment for the plaintiff in error herein, denying the motion and amended motion of defendant in error to set aside the sale."

¶3 In support of these specifications in error, plaintiff urges the following propositions, to wit:

"First: No appraisement of the mineral rights attached was necessary, the same not being 'lands or tenements' within the meaning of section 703, C. O. S. 1921.
"Second: The want of appraisement of the attached property, even if required by the statute on executions, is not jurisdictional, and the judgment sought to be vacated was not void.
"Third: The court erred in setting aside the sale and canceling the sheriff's deed herein for the reason that only a court of equity has jurisdiction to set aside a judicial sale after a sheriff's deed has been executed and recorded."

¶4 The defendant urges the following contentions:

"(1) That the grant of a mineral estate is both interest in real estate and a tenement, which comes within the land and tenement clause of section 703 of the Compiled Oklahoma Statutes of 1921, requiring an appraisement of tenements before a valid deed can be made.
"(2) The judgment of the court in confirming sheriff's sale was void for the want of an appraisement under execution after judgment.
"(3) Motion is proper remedy under our statutes."

¶5 The real question presented in this case is whether or not the mineral grant in question is such an interest in real estate and a tenement as to come within the classification of lands and tenements provided for in section 703, C. O. S. 1921 [O. S. 1931, sec. 450], so as to require an appraisement thereof before a valid sale of the same can be made after judgment under an execution.

¶6 Said section 703 provides that if execution be levied upon lands and tenements, the officers levying the execution shall cause the same to be appraised.

¶7 Plaintiff admits that the ownership of oil and gas rights creates an estate in land, but asserts that the Legislature has not seen fit to require an appraisement of any and all estates of land of whatsoever kind and character when sold on execution; that the mineral rights conveyed by the instrument in question are not lands within the meaning of section 703, C. O. S. 1921 [O. S. 1931, sec. 450]; that the mineral interest cannot be classified as tenements, and that section 703 has no application to mineral interests.

¶8 On the other hand, the defendant contends that the mineral deed which purports to convey unaccrued royalty is an interest in real estate, and that such interest in land comes within the applicable clause of said section 703; that, before a valid sale can be made of a mineral estate covering oil, gas, and mineral after judgment under an execution, said estate must be appraised; that this mineral grant conveyed an interest in the land so as to require an appraisement under section 703, and that it comes within the tenement class.

¶9 Plaintiff cites in reliance of his contention the case of First National Bank of Healdton v. Dunlap et al., 122 Okla. 288, 254 P. 729, which involved a construction of section 690, C. O. S. 1921, as to whether or not an oil and gas lease was real estate within the meaning of said section 690, C. O. S. 1921, so as to give a judgment creditor a lien upon the oil and gas lease belonging to the judgment debtor. We need not be concerned in this case in the soundness of the views announced in that case, which is accompanied with strong contending views in a dissenting opinion. In this case we are considering the conveyance of an oil and gas mineral right under what is generally known as a mineral deed. The instrument in question does not appear in the record, but we think it is conceded by the briefs that this mineral deed includes all mineral rights, coal, zinc, lead, and other minerals. If this be construed as a conveyance of coal, zinc, or lead, an appraisement under the foregoing facts was necessary for a valid sale in the absence of waiver. See Hancock v. Youree, 25 Okla. 460, 106 P. 841. We are considering the instrument as dealing with oil and gas.

¶10 It is settled law that oil and gas in place are minerals, and that so long as they remain unsevered from the soil, they are a part of the realty. In this jurisdiction oil and gas, although they form a part of the corpus of the soil, the aggregate physical interest in the land, while in place, are not subject to absolute ownership separate and distinct from the soil of which they form a part. Garfield Oil Co. v. Champlin, 78 Okla. 91. 189 P. 514. Nor is the land divided horizontally as well as vertically for the purpose of separate ownership as in the case of some other jurisdictions, notably the state of California. See Graciosa Oil Co. v. Santa Barbara County (Cal.) 99 P. 483.

¶11 In the case of Priddy v. Thompson, 204 F. 955, cited with approval in the case of Dunlap v. Jackson, 92 Okla. 246, 219 P. 314, as authority for the rule that the owner of the land has no title to the oil and gas that might be beneath the surface, it was said:

"Oil and gas in the earth are, unlike ore and coal, fugacious and incapable of ownership distinct from the land, and a grant of the oil and gas in a tract of land is a grant of that part of the oil and gas therein which the grantee may find and capture. No title vests until the oil or gas is reduced to possession by extracting the same from the earth, and hence the lease is a grant of an incorporeal hereditament."

¶12 This court, in the case of Brennan v. Hunter, 68 Okla. 112, 172 P. 49, announced the following rule relative to oil and gas leases:

"The lessees thereby acquired a vested, though limited, estate in the lands for the purpose named in the lease, and are entitled to be protected in the exercise of their rights according to the terms and conditions of their contract. * * * The views above expressed are sustained by the great weight of authority, if not by the unanimous opinions of the courts. Petroleum Co. v. Coal Co., 89 Tenn. 381, 18 S.W. 65; Lowther Oil Co. v. Miller Sibley Oil Co., 53 W. Va. 501, 44 S.E. 433, 97 Am. St. Rep. 1027; Venture Oil Co. v. Fretts, 152 Pa. 451, 25 A. 732; Harris v. Ohio Oil Co., 57 Ohio St. 118, 48 N.E. 502; Carr v. Huntington Light & Fuel Co., 33 Ind. App. 1, 70 N.E. 552;
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