Ferrell v. Ferrell, 57891

• Decision Date: 08 May 1986
• Docket Number: No. 57891,57891
• Parties: Garland Peter FERRELL, III, Executor of the Estate of Garland P. Ferrell, Jr., Plaintiff-Appellee, v. Iris B. FERRELL, Jane Ferrell Fassett, Nancy Ferrell Frazier and Elsie H. Ferrell, Defendants-Appellants.
• Court: Kansas Court of Appeals

Page 1

719 P.2d 1

11 Kan.App.2d 228

Garland Peter FERRELL, III, Executor of the Estate of Garland P. Ferrell, Jr., Plaintiff-Appellee, v. Iris B. FERRELL, Jane Ferrell Fassett, Nancy Ferrell Frazier and Elsie H. Ferrell, Defendants-Appellants.

No. 57891.

Court of Appeals of Kansas.

May 8, 1986.

Review Denied July 8, 1986.

Syllabus by the Court

1. In an action to quiet title, in which reformation of a deed is also sought, the action will be treated as one to reform a deed and thus subject to the five-year statute of limitations period provided in K.S.A. 60-511(5).

2. The mere fact of remaining silent when possessing material knowledge not held by another is sufficient to toll the statute of limitations in a reformation of deed action where that silence causes another to fail to take timely action which he would have taken had he possessed such knowledge.

3. Where an attorney is erroneously compelled to testify as to matters covered by the attorney-client privilege, the admission of such testimony does not require reversal if there is substantial competent evidence to support the decision of the trial court without reference to such privileged communications.

Charles W. Harris and Steven J. Rupp of Curfman, Harris, Stallings & Snow, Wichita, and Gary W. Davis of Crowe & Dunlevy, Oklahoma City, Okl., for appellants.

O.J. Connell, Jr. and Tim Connell of Connell & Connell, El Dorado, for appellee.

Before MEYER, P.J., and CHARLES J. SELL and BARRY A. BENNINGTON, District Judges, Assigned.

MEYER, Judge:

This is an action brought by the executor of the estate of Garland P. Ferrell, Jr., to determine the rights and interests of various members of the Ferrell family to surface and mineral interests in a parcel of land located in Butler County, Kansas. The district court quieted title in favor of the Ferrell estate. This appeal follows.

The instant action arises out of a complicated series of facts. Briefly stated, Garland P. Ferrell, Sr., and his wife Helen originally owned 5,282.66 acres of land in Butler and Elk Counties. At issue in this case is certain real property in Butler County upon which oil was being produced known as the "Holly Lease" acreage.

Pursuant to a family settlement agreement entered into by the surviving children and grandchildren of the Ferrell family, the probate court ordered distribution of the Holly Lease acreage as follows: the surface rights were given to Lloyd Ferrell and the mineral interests were given to Garland Ferrell, Jr., for "as long as oil and gas continues to be produced therefrom. At and upon cessation of production, title to said minerals shall revert unto [Lloyd Ferrell]."

In December 1972, George Powers, attorney for Lloyd Ferrell, directed his partner, Phillip Frick, to prepare a number of deeds to carry out the terms of the settlement agreement. The deed governing the "Holly Lease" acreage was drawn up and sent to the attorney for Garland P. and Helen Ferrell's estate, with an accompanying letter stating the deed enclosed conveyed the "surface interests." Unfortunately, the actual deed as drawn up did not reserve the mineral interests to Garland Ferrell, Jr., and so conveyed both surface and mineral interests to Lloyd Ferrell, in clear contravention of the settlement agreement and the order of the probate court.

The deeds to the Ferrell acreage were filed in November 1973. From its origination in 1972 until 1976 no one connected with the transaction to the property noticed the deed to the "Holly Lease" acreage was in conflict with the settlement agreement. In 1976 a new well was drilled on the "Holly Lease" acreage and Lloyd Ferrell for the first time discovered the discrepancy in the deed. No reformation of the deed covering the property was made, however, and Lloyd Ferrell continued to allow Garland Ferrell, Jr., to receive all royalties connected with the "Holly Lease" acreage and to make payment of all taxes connected therewith.

On January 3, 1980, Garland Ferrell, Jr., died. His son, Garland P. Ferrell, III, was made executor of his father's estate. In April 1980 royalty payments under the "Holly Lease" ceased coming to the Garland P. Ferrell, Jr. family, and Garland Ferrell, III learned for the first time of the discrepancy in the "Holly Lease" acreage deed. On October 7, 1980, Garland Ferrell, III, as executor of his father's estate, brought suit seeking to reform the "Holly Lease" acreage deed, and to quiet title in the estate of Garland P. Ferrell, Jr., for the beneficiaries under the decedent's will. Defendants, children of the deceased Lloyd Ferrell, answered, asserting that the statute of limitations on reformation of deeds was five years under K.S.A. 60-511(5) and that plaintiff had failed therefore to state a proper cause of action since the deed in dispute had been filed in 1973. Defendants further counterclaimed, seeking to have title to the mineral interests quieted in them and seeking to recover all amounts of royalties which had, under the terms of the deeds of record, wrongfully been paid the Garland P. Ferrell, Jr., family.

The district court found that plaintiff's action was one to quiet title and not simply one for reformation of a deed and thus was timely under K.S.A. 60-507, which provides a fifteen-year statute of limitations period for quieting title. The district court further found that defendants were estopped from denying the family settlement agreement which awarded the mineral interests of the subject property to Garland Ferrell, Jr. The court thus quieted title in favor of plaintiff and defendants appeal.

Defendants contend that because plaintiffs' suit sought reformation of the quitclaim deeds governing the Holly Lease acreage, the action was one for reformation and thus untimely filed under K.S.A. 60-511(5), which provides only a five-year statute of limitations for reforming deeds.

Plaintiff contends, and the district court agreed, that the action was one to quiet title. Thus, plaintiff contends the trial court correctly applied the K.S.A. 60-507 fifteen-year statute of limitations.

Clearly if plaintiff's action is determined to be one for reformation of a deed and not one to quiet title, the cause of action would be barred under K.S.A. 60-511(5). Beams v. Werth, 200 Kan. 532, 438 P.2d 957 (1968); Palmer v. The Land & Power Co., 180 Kan. 492, 306 P.2d 152 (1957); Travis v. Glick, 150 Kan. 132, 91 P.2d 41, aff'd on rehearing 150 Kan. 718, 96 P.2d 624 (1939). Although plaintiff attempts at length to distinguish each of the above cases, plaintiff's arguments are misplaced. The five-year statute of limitations period for reformation of a deed is not a matter for case-by-case interpretation, but is a settled rule of law. As stated by the court in Beams:

"Prior decisions confirm that an action to reform a deed on the ground of mutual mistake of the parties must be brought within the five-year period of the statute of limitations. (G.S.1949, 60-306, Sixth; Travis v. Glick, 150 Kan. 718, 96 P.2d 624; and Regier v. Amerada Petroleum Corp., 139 Kan. 177, 30 P.2d 136.) There is no indication in any of the commentaries on K.S.A.1967 Supp. 60-511(5) that any change was intended regarding this section of the statute of limitations in the new code of civil procedure." 200 Kan. at 544, 438 P.2d 957.

Thus, in order for plaintiff's action in this case to be timely, it must either have been one to quiet title (without the inclusion of a reformation of deed request), or one to reform a deed only. If the latter, the statute of limitations would have to have been tolled in order for the present action to be timely.

An action to quiet title is an action "brought by any person claiming title or interest in personal or real property, including oil and gas leases, mineral or royalty interests, against any person who claims an estate or interest therein adverse to him or her, for the purpose of determining such adverse claim." K.S.A. 60-1002. In the present case, defendants claim the right, title, and interest in and to the mineral rights of the "Holly Lease" acreage, and have as proof of that claim two quitclaim deeds properly filed containing no reservation of mineral interests. This is a position adverse to plaintiff who claims that, by virtue of the 1972 family settlement agreement and the order of the probate court, the Garland Ferrell, Jr., estate is entitled to all mineral interests stemming from the "Holly Lease" acreage. We thus have a factual situation which appears to meet the definition of a quiet title action: two parties asserting adverse interests with regard to certain mineral rights. It is undisputed, however, that plaintiff seeks not only to quiet title, but to reform the quitclaim deeds governing the property. As discussed below, this, to us, renders plaintiff's action one to reform a deed for statute of limitation purposes.

In Palmer v. The Land & Power Co., 180 Kan. 492, 306 P.2d 152, Syl. p 3, it is stated:

"While the statute of limitations does not bar an action to quiet title, where in order for the title to be quieted a deed must be reformed, the action will be treated as one to reform a deed and the statute [of limitations for reforming a deed] will operate."

In Palmer, the plaintiff and her husband entered into a written contract to buy a piece of land over a period of time. Upon full payment being made, they were to get a deed, subject to a reservation of one-half the minerals in the defendant seller. Later, the plaintiff claimed an oral agreement was entered into that, if the contract was paid off early, they would get the land without reservation. They paid the purchase price prior to the due date and such a deed was given. Later, a mistake was found in the legal description and the plaintiff asked the defendant for a new deed, which was then given, but which contained a reservation of all the minerals to the defendant.

Suit was then filed by the plaintiff to quiet title. The defendant, more than...