Feagin v. Davidson

• Decision Date: 06 January 1967
• Docket Number: No. 40900,40900
• Citation: 1967 OK 14,431 P.2d 396
• Parties: Barney FEAGIN, Jr. and Donald R. Feagin, as individuals and in their Trust Capacities, Plaintiffs in Error, v. Raymond DAVIDSON and Beryl Rosemary Davidson and Frankfort Oil Company, a Division of Joseph E. Seagram & Sons, Inc., an Indiana Corporation, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 396

431 P.2d 396

1967 OK 14

Barney FEAGIN, Jr. and Donald R. Feagin, as individuals and in their Trust Capacities, Plaintiffs in Error, v. Raymond DAVIDSON and Beryl Rosemary Davidson and Frankfort Oil Company, a Division of Joseph E. Seagram &amp Sons, Inc., an Indiana Corporation Defendants in Error.

No. 40900.

Supreme Court of Oklahoma.

Jan. 6, 1967.

Supplemental Opinion on Rehearing June 20, 1967.

Syllabus by the Court

1. Where the affidavit for publication service upon defendants in quiet title action showed action to be of a class of cases in which statute permits publication service, and that plaintiff with due diligence forty-one (41) days from date of first publication.' within the state otherwise than by publication, and the journal entry discloses trial court's examination of files and finding that publication service was proper, the judgment rendered against defendants in such case was not void on its face.

2. When the affidavit and publication service thereon are unchallenged other than by matters dehors the record they are sufficient to satisfy requirements of 12 O.S. 1961, § 170, and when approved by the trial court a judgment based thereon is valid on the face of the judgment roll.

3. 12 O.S.1961, § 173, provides that notice by publication shall be published for three consecutive weeks and must notify the defendants that they have been sued and must answer on or before a date to be stated, 'which shall not be less than forth-one (41) days from date of first publication.' Where answer date is more than forty-one days from date of first publication of notice, the service is valid and the judgment based thereon is not void on the face of the judgment roll.

Appeal from District Court of Latimer County; George Windham, Judge.

Action denominated suit to quiet title wherein relief sought was to vacate prior judgment alleged to be void on face of judgment roll. The trial court found all issues in favor of defendants and quieted title as against appealing plaintiffs. Affirmed.

W. F. Semple, Tulsa, for plaintiffs in error.

Russell & Russell, Wilburton, for Raymond Davidson and Beryl Rosemary Davidson.

Eldon E. Scott, Dallas, Tex., Fischl, Culp & McMillin, Ardmore, for Texas Pacific Oil Co., formerly Frankfort Oil Co., a division of Joseph E. Seagram & Sons, Inc., an Indiana Corp., defendants in error.

BERRY, Justice:

Plaintiffs in error brought this action seeking to quiet title to the mineral interest in a certain described 40 acres in Latimer County. The trial court found the issues in favor of the defendants.

To bring the problem into better perspective requires amplification of the factual background which provided ground for this appeal.

The land involved originally was allotted to Selaney Stallaby, Choctaw Roll No. 8756, who died July 31, 1914, survived by her husband, Edward Hicker, and three minor children. The husband died intestate later in 1914, and one minor child died in 1916. All interest in the land thereby devolved to the surviving minor sister and brother, Daisy and Grover Hicker, who were placed under guardianship of one Cutler by the County Court of Latimer County. On March 23, 1922, her eighteenth birthday, Daisy executed a deed purportedly conveying her half interest to one Zula Graham. Contemporaneously the guardian instituted a partition action in Murray County, Oklahoma, and on September 28, 1922, a sheriff's deed was executed, in accordance with such partition proceeding, purportedly conveying Grover's half interest to Zula Graham. This grantee, joined by her husband who had acted in concert with the guardian in these transactions, executed a quit claim deed conveying the property to Grover Hicker, which was recorded December 16, 1922. This same date the Grahams executed a deed conveying the minerals to N. B. Feagin, father and predecessor in title of plaintiffs in the present appeal.

On July 12, 1928, both Daisy and Grover executed warranty deeds to this property to Stephens and McKissack, and on July 13th these deeds were approved in a proceeding before the county court, both grantors testifying in support of the petition for approval of the conveyances. These grantees executed an oil and gas lease covering the property in 1936, and on March 20, 1948, were joined by their wives in executing full warranty deeds conveying the property to Q.T. and Edith Sirpless.

On April 7, 1948, the Sirpless's filed suit to quiet title, alleging open, exclusive and continuous possession, naming as defendants Graham, N. B. Feagin, the Oklahoma Tax Commission, S. J. Cochran, whose interest arose under early oil and gas leases, and George S. Cochran, Trustee, under such interest, and Mid-Western Oil and Gas Company, a corporation, which had taken oil and gas leases from both the Cochran's and N. B. Feagin. This petition to quiet title alleged lack of judicial determination of heirs at law of the original allottee (Stallaby), that the various instruments mentioned above created a cloud upon their title, and prayed judgment determining the heirs of individuals in such chain of title who were found to be deceased, and quieting and confirming their (Sirpless) title and possession of the property as against the named defendants, their heirs, assigns or successors, or any persons claiming interest in this property by or under any of those named. The petition was verified by the Sirpless's attorney.

The attorney filed an affidavit to obtain publication service, stating the action to quiet title was of the class of cases in which publication service could be had, and then alleged: (quoting in pertinent part)

'Affiant further states that with due diligence upon the part of himself and the Plaintiffs, that he has been unable to ascertain whether or not the Defendants, Zula Graham and N. B. Feagin are living or are deceased, and if deceased, the names, identities, places of residence, or whereabouts of any of their heirs, executors, administrators, devisees, trustees, receivers, or assigns, immediate or remote, * * * and by reason of these facts the Plaintiffs are unable to obtain service by summons upon any of the above named Defendants within the State of Oklahoma.'

The case was heard June 9, 1948, at which time the trial court found all named defendants to be in default, except the State of Oklahoma and George Cochran, only known heir of S. J. Cochran, both of whom filed general appearance and disclaimer of any interest in this property. The court further found:

'* * * this cause is one in which service by publication is authorized by the statute * * *; this court * * * finds that service by publication has been had * * * upon said defendants, Zula Graham, N. B. Feagin, the unknown heirs, executors, administrators, devisees, trustees and assigns, immediate and remote, of either or both parties who are or may be deceased, * * *.'

The court then found the notice for publication and proof thereof regular and legally sufficient and approved service by publication upon the defendants, found same sufficient to vest the court with jurisdiction to render judgment and found each defendant in default, and adjudged the allegations of the petition to be taken as confessed against each defendant.

The trial court then adjudged and decreed that the different deeds and instruments under which the various defendants asserted interest in the property were null and void, and enjoined defendants from claiming any right, title or interest in the property adverse to plaintiffs' title and possession.

In April 1955, Sirpless et ux. executed a 10 year oil and gas lease to one Hamilton, which interest passed to Frankfort Oil Company by mesne assignments. The following October Sirpless et ux. conveyed the fee simple title to the Davidsons by warranty deed.

In February, 1962, the Feagins executed individual leases to each other, and in August, 1962, filed suit, in their individual and trust capacities seeking to quiet title to the minerals as against claims of the defendants. Their petition deraigned title from the allottee as set out above, and asserted that the title to the mineral rights passed to N. B. Feagin from Zula Graham, who had acquired valid deeds from Daisy Hicker, and the sheriff's deed in the partition proceedings of Grover Hicker's interest. The petition denied that defendants Davidson acquired any mineral interest under their deed, or that the corporate defendant secured any mineral interest under the Sirpless lease to Hamilton, eventually assigned to defendant.

The defendants filed separate answers and cross-petitions which alleged the same defenses and claims in that: (1) the mineral deed under which plaintiffs claim title was void because the deed from Daisy Hicker to Graham was a forgery, and the sheriff's deed in the purported partition proceeding was void for lack of jurisdiction in the Murray County District Court; neither the Grahams nor N. B. Feagin ever were in possession of the land; the deeds through which plaintiffs deraigned title all were executed as part of a fraudulent conspiracy appearing on the face of the record, and no consideration was paid therefor; (2) defendants and their predecessors in title had held actual, open, continuous, uninterrupted and hostile possession for more than thirty years, paid taxes and claimed ownership of both surface and minerals; (3) the judgment entered in 1948 quieting Sirpless's title was res judicata as to all issues asserted by plaintiffs, and estopped plaintiffs' right to bring this action; any claim of plaintiffs long since had been barred by laches and the statutes of limitation.

By cross-petition defendants alleged ownership of fee title, subject to a valid oil and gas lease which had vested in the corporate defendant by mesne assignments, and defendants' rights in the land and minerals were superior to any claim of plaintiffs, whereby defendants were entitled to judgment quieting their own title and the instruments upon...