Dorman v. Minnich

• Decision Date: 13 June 1960
• Docket Number: No. 47198,47198
• Citation: 336 S.W.2d 500
• Parties: Docia DORMAN et al., Respondents, v. Mary MINNICH et al., Defendants, J. W. Maples et al., Appellants.
• Court: Missouri Supreme Court

Page 500

336 S.W.2d 500

Docia DORMAN et al., Respondents, v. Mary MINNICH et al., Defendants, J. W. Maples et al., Appellants.

No. 47198.

Supreme Court of Missouri, En Banc.

June 13, 1960.

Rehearing Denied July 11, 1960.

Geo. F. Addison, L. Clark McNeill, Salem, for defendants-appellants.

Lay & Ichord, Houston, for respondents.

C. Powell Fordyce, Harold A. Thomas, Jr., Fordyce, Mayne, Martman, Renard & Stribling, St. Louis, for amicus curiae.

DALTON, Judge.

This cause comes to the writer on reassignment. It is an action to quiet and determine title to 80 acres of described real estate in Texas County; however, title to only 20 acres is involved in this appeal. Some fifty plaintiffs claimed to own the mineral rights in this particularly described 20 acres, some of them claiming as little as a 12/3584 undivided fractional interest therein. While the petition named a number of defendants, only J. W. Maples and his wife Minnie D. Maples and Marcus Flatt appeared and defendant the action. They claimed the fee simple ownership of both surface and sub-surface rights in the mentioned 20 acres as the subsequent grantees of the grantee in a tax deed dated September 3, 1952. They have appealed from the judgment which quieted the title to the mineral rights in this 20 acres in the plaintiffs.

Court One of the petition, which described this 20 acres and other real estate, stated no facts to invoke the jurisdiction of a court of equity and the cause was tried to the court without the aid of a jury. We shall review the record in accordance with the provisions of Sec. 510.310 RSMo 1949, V.A.M.S. Much of the evidence is documentary or is a matter of record and there is little dispute, if any, as to the facts developed in oral testimony. The principal issue concerns the legal effect of substantially admitted facts. The controversy is solely with reference to the title to the mineral interests or estate in the mentioned 20 acres, since it is conceded that appellants own the surface fee.

John D. Pharris is the common source of title. His heirs and the heirs of Frederic Dorman, his grantee, and the grantees of certain heirs were plaintiffs below and are respondents here. For convenience we shall adopt with some modification portions of an opinion prepared by one of our Commissioners.

On December 14, 1880, John D. Pharris and his wife conveyed to Frederic Dorman the S 1/2 of SE 1/4 of Sec. 18 in Twp. 33N, R8W, containing 80 acres more or less, by a deed containing this clause:

'Hereby reserving to ourselves the said first parties our heirs executors administrators and assigns the undivided one half interest in and to all minerals of any kind whatsoever in and upon said lands with the absolute right and privilege to go in and upon said land and engage in mining for any such minerals at any and all times that to us may seem property.'

That deed was recorded on February 16, 1885. The date of Mr. Pharris' subsequent death does not appear in the record, but he was survived by eight children, and one of his grandsons appeared as a witness in the case. Frederic Dorman died intestate on November 27, 1887. On October 7, 1932, the heirs of Frederic Dorman, in order to effect a 'family settlement' of certain of their interests and to reserve their mineral rights in the 80 acres, conveyed it to one Barnes, a straw party, by a warranty deed containing this reservation:

'Hereby reserving to ourselves, the said First Parties, our heirs, executors, administrators and assigns, all the Monerals of any kind whatsoever in and upon said land; with the absolute right and privilege to go in an upon said land engage in mining for any such minerals at any and all times that to us may seem proper.'

That deed was recorded on June 5, 1933. On March 11, 1933, Barnes and his wife executed their four separate quitclaim deeds, each of which conveyed back to named Dorman heirs 20 acres of the original 80 acres. As stated, appellants claim ownership of only one 20-acre tract, to-wit: the W 1/2 of the SW 1/4 of the SE 1/4 of Sec. 18. Barnes conveyed this tract to Lucy May Mobley and Theodore Mobley, her husband. That deed was recorded on March 14, 1934. There was no mention in that or any of the other three quitclaim deeds of the mineral estate. The Mobleys resided in Big Horn Basin, Wyoming. Mrs. Mobley, who was one of the four Dorman heirs, died intestate September 15, 1943, survived by her eight children, each of whom apparently would have inherited a 1/64 interest in the mineral rights in this 20-acre tract, the remaining fractional interests in the mineral rights being owned by the Pharris heirs and the other Dorman heirs.

The state and county taxes for the years 1947, 1948 and 1949, appeared on the assessment books of Sherrill Township, Texas County, as taxes against the W 1/2 of the SW 1/4 of the SE 1/4 of Sec. 18, Twp. 33, R 8. The assessment was in the name of Theodore Mobley. No other assessment was shown as to the 20 acres. Theodore Mobley had not returned any assessment list for 1947, 1948 or 1949, nor had any assessment list been returned by any Pharris or Dorman heir claiming any interest or estate in this tract. The township assessor made the assessments himself and fixed the valuation of the tract for each year at $50. The assessor did not purport to separately assess the surface fee and the mineral estate. He had not received any claim respecting a separate mineral estate for assessment. The tract, assessed as indicated, was returned delinquent for the said years and, subsequently, it was advertised and sold, on August 28, 1950, to R. B. Wilson for $20. On September 3, 1952, Wilson received a tax deed which described the land as the 'West one half of Southwest Quarter of Southeast quarter, Section 18, Township 33, Range 8, containing twenty acres, more or less.' There was no specific reference to either the surface or the mineral estate in this deed, which was in the usual form. On December 9, 1953, Wilson and his wife conveyed the same 20 acres under the same description to J. W. Maples and his wife Minnie for a recited consideration of $75. Maples and wife conveyed an undivided one-half interest to Marcus Flatt on December 2, 1955, for a recited consideration of $50.

Before proceeding farther, we shall briefly review the foregoing facts and draw certain conclusions. In the instant case the 1880 deed from Pharris to Dorman and the 1932 deed from the Dorman heirs to Barnes were the deeds which reserved the separate mineral estate and both of those deeds were on record. The 1880 deed reserved in Pharris one-half the mineral estate in the 80 acres so that his grantee, Dorman, received title to the entire surface estate and title to one-half the mineral estate. The Dorman heirs conveyed the 80 acres to Barnes but reserved the mineral estate so that Barnes received title to the surface only. By reason of the mentioned reservations in the 1880 and 1932 deeds there was of course a severance of ownership of the surface fee from the mineral estate and the owners of the respective estates were not cotenants. See Wardell v. Watson, 93 Mo. 107, 5 S.W. 605; Snoddy v. Bolen, 122 Mo. 479, 24 S.W. 142, 25 S.W. 932, 24 L.R.A. 507; Young v. Young, 307 Mo. 218, 270 S.W. 653, 654(1), 39 A.L.R. 734; Tiffany on Real Property, 3d Ed., Sec. 1158, p. 469; American Law of Property, Vol. II, p. 100, Sec. 6.22; 84 C.J.S. Taxation Sec. 68, p. 173. Thereafter, one-half of the mineral estate was in the Pharris heirs and one-half in the Dorman heirs. Barnes conveyed 20 acres back to each group of the Dorman heirs by quitclaim deed and, of course, conveyed only the right, title, and interest which he had. That title or interest did not include any interest in or title to any part of the mineral estate. The fact that the quitclaim deeds from Barnes did not state that he was not conveying a mineral estate to which he had no title and which he could not have lawfully conveyed should not have concealed the true status of the mineral estate insofar as the land records of the county are concerned. The deeds creating the mineral estate had been recorded prior to the Barnes quitclaim deeds and thus the quitclaim deeds did not have any effect on the separate mineral estate which was then in existence. We therefore conclude that, at the times the 1947, 1948 and 1949 assessments for taxes were made, the title in fee simple to the 20 acres here in question, except for the minerals, stood in the name of Lucy May Mobley and Theodore Mobley, her husband, but, as noted, Lucy May Mobley had died in 1943 owning a 1/8 interest in the mineral rights. While the title to the mineral estate in 1947, 1948 and 1949 was in the Pharris and Dorman heirs, including the heirs of Lucy May Mobley, the names of the numerous Pharris and Dorman heirs, who owned the undivided fractional interests in the mineral estate, could not have been ascertained from the land records of Texas County.

The first question presented is whether the mentioned tax deed conveyed the minerals and the right to mine them as reserved in the Pharris and Dorman deeds, as well as the surface rights in the 20 acres. The answer to that question depends upon the construction to be placed upon the applicable statutes of this state. No question is presented concerning the validity of the tax deed. Its validity is admitted. The question is, what interest did it convey? The trial court did not hold that the tax title was void, but held that the appellants had no title, estate or interest to the minerals in the described 20 acres.

Appellants contend that the court erred because 'under the law the tax deed in this case must stand as conveying the fee simple title because a tax deed creates and constitutes a new title, an independent grant from a sovereign authority and is not derivative.' Appellants cite State ex rel. Buder v. Hughes, 350 Mo. 547, 166 S.W.2d 516, 518, and other cases.

Respondents say the only question is, ...