Durbin v. Carter Oil Co.
| Decision Date | 18 November 1941 |
| Docket Number | No. 26188.,26188. |
| Parties | DURBIN et al. v. CARTER OIL CO. et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Suit be George H. Durbin and Eliza M. Durbin against the Carter Oil Company, W. O. Allen, H. W. Davis, and others, to set aside, as a cloud on the plaintiffs' title, a mineral deed which purported to have been executed by the plaintiffs to H. W. Davis, and subsequent mineral deeds in the chain of title from H. W. Davis, wherein a counterclaim for specific performance was filed. George H. Durbin died testate before the hearing. His widow and sole devisee, Eliza M. Durbin, and their adopted son, Silas Durbin, to whom they had conveyed part of the realty, prosecuted the suit after the death of George H. Durbin. The chancellor entered a decree dismissing, for want of equity, the complaint, and granted specific performance as prayed in the counterclaim, except as to a homestead interest of $1,000 in part of the realty. From that of the decree dismissing the complaint and granting the counterclaim, the plaintiffs appeal, and from a portion of the decree holding that Eliza M. Durbin had a homestead, W. O. Allen, H. W. Davis, and his grantees by mesne conveyances cross-appeal.
Decree affirmed in part, reversed in part, and cause remanded, with directions to render decree in conformity with opinion.
Hugh V. Murray, Jr., of Centralia, and Murray & Miller, of Vandalia, for appellants.
W. F. Schuermeyer, of Tulsa, Okl., W. F. Sonnemann, of Vandalia, Green & Farmer, of Tulsa, Okl., Paul Taylor and W. S. Holmes, both of Effingham, and Craig & Craig, of Mattoon, for appellees.
George H. Durbin owned 210 acres of land in Fayette county, Illinois, on September 16, 1936. There is no dispute that he and his wife executed oil and gas leases which now belong to the Carter Oil Company, and which covered the 180 acres here in question. The Durbins filed this suit to set aside, as a cloud on their title, a mineral deed which purported to have been executed by the husband and wife, September 16, 1936, to ‘H. W. Davis of Tulsa, Oklahoma,’ and subsequent mineral deeds in the chain of title from Davis. The Durbin deed purported to convey an undivided one-half interest ‘in and to all of the oil, gas, in and under and that may be produced from the following described lands situated in Fayette County, State of Illinois, to-wit: [Here follows the description of the 180 acres in question.] (Grantor reserves the 10 cent lease rental on present lease.) * * * . This sale is made subject to any rights now existing to any lessee or assigns under any valid and subsisting oil and gas lease of record heretofore executed; it being understood and agreed that said Grantee shall have, receive and enjoy the herein granted undivided interest in and to all bonuses, rents, royalties and other benefits which may accrue under the terms of said lease insofar as it covers the above described land from and after the date hereof, precisely as if the Grantee herein had been at the date of the making of said lease the owner of a similar undivided interest in and to the lands described and Grantee one of the lessors therein.
‘Grantor agrees to execute such further assurances as may be requisite for the full and complete enjoyment of the rights herein granted and likewise agrees that Grantee herein shall have the right at any time to redeem for said Grantor’ etc.
George H. Durbin died testate before the hearing. His widow and sole devisee, Eliza M. Durbin, and their adopted son, Silas Durbin (to whom they had conveyed part of the 180 acres, August 9, 1938), prosecuted the suit after Durbin's death. The chancellor dismissed, for want of equity, the amended complaint as amended and granted specific performance as prayed in the counter-claim, except as to a homestead interest of $1,000 in the southeast quarter of the southeast quarter of section twenty-eight in township eight north, of range three east of the Third Principal Meridian, situate in Fayette county, Illinois, a part of the lands here involved, which homestead interest was decreed to belong to Eliza M. Durbin and was ordered set off to her by commissioners. Subject to this homestead, she was ordered to make a mineral deed to H. W. Davis conveying one-half of the oil and gas underlying the 180 acres, subject to the above mentioned oil and gas leases. This deed was to be made within thirty days after the homestead was set off to her. If she did not make the deed, the master in chancery was to execute it in her stead. Those cross-appellants who claimed by mesne conveyances under Davis, were to receive the benefits which flowed from the new deed.
The Durbins have appealed from the portions of the decree which dismissed their complaint for want of equity and which granted specific performance. W. O. Allen, Davis, and his grantees by mesne conveyances, have appealed from the portion of the decree which held Eliza M. Durbin had a homestead in the forty-acre tract above described. A freehold is involved and this court has jurisdiction.
September 16, 1936, a notary public and real estate broker named Charles L. Kanatzar of St. Elmo, Illinois, went to the home of George H. and Eliza M. Durbin. Kanatzar had been active in securing mineral deeds and oil leases from landowners in Fayette county. He told the Durbins what other people had been getting for mineral deeds and oil and gas leases; that seventy-five cents an acre was a good offer; that it ‘would be like finding money in the road’ and that if a well were drilled on their land, salt water would be found instead of oil. The Durbins were upwards of eighty years of age and George's sight was so poor he could not see to sign his own name. They finally accepted Kanatzar's seventy-five cent offer for a mineral deed to convey an undivided one-half interest in the oil and gas underlying and to be produced from the 180 acres. In this same transaction, Kanatzar bought at $22.50 each, a paid-up ten-year oil and gas lease to 20 acres and a mineral deed to a one-half interest in the oil and gas under 30 acres of land. These two instruments were dated September 15, 1936, the day before, and were taken in the name of his cousin, A. B. Chance, as lessee and grantee, respectively, who was Kanatzar's straw-man. That deed and lease are not involved in this suit.
Kanatzar was the real party in interest although Davis was named as grantee in the mineral deed here involved. He owed the Durbins seventy-five cents an acre for 180 acres covered by that deed and $45 for the lease and deed to his straw-man and cousin, Chance, or a total or $180.
Mrs. Durbin signed her husband's and her own name to the mineral deed but the manifest weight of the evidence shows that there was no description in the deed, that there was no seal, scroll or word ‘seal’ on the deed after the grantors' signatures or either of them, and that the certificate of acknowledgment which Kanatzar signed as notary public, contained no waiver and release of homestead. When Eliza M. Durbin asked Kanatzar for a copy of the mineral deed, he gave her a similar form to that he had used and marked it ‘Copy.’ It had in it the names of the grantors, and the grantee, ‘H. W. Davis, Tulsa, Oklahoma’ but no description of any land. Mrs. Durbin objected that there was no land described and Kanatzar told her she ‘knew the numbers of the land’ and that ‘he always finished the papers at his office.’ The record is barren of any evidence to show that Kanatzar had either a written power of attorney or any authority, under seal, to fill in the missing description in the paper signed by Mrs. Durbin and her husband as above described.
It is also shown by the manifest weight of the evidence that the 40 acres above described in section 28, where the Durbins lived, September 16, 1936, was worth not to exceed $960. All the appellants' witnesses knew of sales of similar land which had been made within a reasonable time before September 16, 1936. They lived in the neighborhood and had known this land for years. Their testimony as to value was based on this knowledge. On the other hand, appellees' witnesses knew of no such sales. Many of them had never lived in the neighborhood and, for these reasons, their testimony as to value was mere personal opinion and was lacking in probative force. An application for fire insurance that George H. Durbin had made was admitted in evidence over objection. It contained figures as to the house, outbuildings and land that would total more than $1,000. The proof shows the buildings were at least thirty-eight years old and were not in a very high state of repair. What amount of fire insurance Durbin applied for or carried, if admissible at all, would only be a circumstance and it, coupled with the empty opinions of appellees' witnesses as to value, did not overcome the testimony of appellants' witnesses. Hence, it did not sustain the finding in the decree that the Durbins' home place was worth more than $1,000 on September 16, 1936.
After Kanatzar left the Durbin home, he sent the mineral deed to an undivided one-half interest in the oil and gas under the 180 acres with a sight draft to another defendant, W. O. Allen, Tulsa, Oklahoma. Allen sent Kanatzar $225 instead of $135 which would be seventy-five cents per acre for 180 acres. Out of the $225 Kanatzar deposited to the credit of George H. and Eliza M. Durbin, $180 in a bank in St. Elmo. Thus he paid them the $135 he owed for the mineral deed he had taken in the name of Davis and the $45 for the deed and lease he had taken in the name of his cousin, Chance, as straw-man. Kanatzar contradicted himself. For example he said $180 was all he got for the mineral deed taken in the name of Davis but he claimed later the additional $45 out of the total sum of $225 was a ‘c...
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