First Nat. Bank v. Dunlap
| Decision Date | 22 March 1927 |
| Docket Number | 14101. |
| Parties | FIRST NAT. BANK OF HEALDTON v. DUNLAP et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
While an oil and gas lease which "grants, leases and lets" certain land for oil and gas mining purposes conveys to the lessee an estate in the realty described therein, such interest is not real estate, within the meaning of section 690, C. O. S. 1921, which gives a judgment creditor a lien upon the "real estate" belonging to the judgment debtor.
Appeal from District Court, Carter County; Thos. W. Champion, Judge.
Action by the First National Bank of Healdton against E. Dunlap, in which the Turman Oil Company moved to revoke a levy of execution on an interest in an oil and gas lease. From an order recalling the execution and quashing it, plaintiff appeals. Affirmed.
Potterf & Gray, of Ardmore, for plaintiff in error.
H. A Ledbetter and R. H. Ledbetter, both of Ardmore, and Ledbetter, Stuart, Bell & Ledbetter, of Oklahoma City, for defendant in error.
John F Goshorn, of Kansas City, Mo., amicus curiæ.
Herein is prosecuted error from the district court of Carter county. In 1921, the First National Bank of Healdton obtained a final judgment in the sum of $3,300 against E. Dunlap. At the time it became final, the said E. Dunlap was the owner of an undivided one-tenth interest in a producing oil and gas lease covering certain lands located in the said county of Carter, the description of which is unnecessary. Execution was not issued on the said judgment until the 27th day of November, 1922. Within a few days after execution was issued, the sheriff of said county levied upon, and had appraised for the purpose of sale, the said undivided interest in the said oil and gas lease, so owned by the said E. Dunlap at the time said judgment was rendered against him. Between the date of the finality of the judgment and the issuance and levy of the execution, the said E. Dunlap had sold, transferred, and assigned for value his said undivided interest in the said oil and gas lease to the Turman Oil company, a corporation, and shortly after the levy of the said execution the Turman Oil Company filed a motion in the said cause, praying that the execution as to the said oil and gas lease estate be revoked, and that the levy thereof upon the same be quashed. This motion was by the court on the 30th day of December, 1922, sustained, upon the ground that the said judgment so rendered as aforesaid against the said E. Dunlap did not constitute a lien upon the oil and gas lease interest owned by the defendant Dunlap, and, not constituting a lien thereon, same could not be made subject to execution against, after it had been sold and transferred for value. From the order recalling the execution and quashing the same as aforesaid, the plaintiff, the First National Bank of Healdton, perfected this appeal.
The sole question involved herein, irrespective of the phraseology of the assignments of error, is whether or not the judgment fastened a lien upon the interest owned by the judgment debtor in the said oil and gas lease. If it did, the Turman Oil Company purchased the same, subject to such lien, and the order and judgment of the court quashing the levy was erroneous. The oil and gas lease in question had been developed and was producing.
It is the contention of the plaintiff in error that the said judgment was a lien upon the said oil and gas leasehold estate by reason of section 690, C. O. S. 1921. This section provides:
In its essence, the argument plaintiff in error makes is based upon certain definitions of "real property," and of the words "land," "real estate," "and premises," as found in the statutes of this state. It cites and quotes section 2323, C. O. S. 1921, which provides:
-and then argues:
'
This quotation from the brief makes it apparent that the plaintiff in error wants this court to ingraft section 2323, supra, upon and into section 690, supra, in order to determine the meaning of the said section 690, and thereby fix a lien in its favor upon the oil and gas leasehold estate at the time of the judgment.
We are unable to understand how plaintiff in error can present this argument to this court, for the said section 2323 is found in the statutes of this state under the head of "Crimes Against Property," which is one of the subheads of the general provisions of the statute on "Crimes and Punishments," and the said definition, argued by the plaintiff in error as if it were a general definition, is qualified by section 2312, which is only 11 sections preceding it, under the same head "Crimes Against Property," by this definition:
"Whenever the terms mentioned in the following sections are employed in this chapter, they are deemed to be employed in the senses hereafter affixed to them, except where a different sense plainly appears."
Following this last-named section are numerous definitions, including section 2323, but they are made applicable solely to the chapter on "Crimes Against Property," and cannot under any condition be used to throw any light upon the meaning of the term "real estate," as found in said section 690, supra.
Again he asserts that section 3560, C. O. S. 1921, is persuasive. This section provides:
"The words 'real property' are coextensive with lands, tenements and hereditaments."
Again he cites section 5250, C. O. S. 1921, which provides:
"The words 'land,' 'real estate' and 'premises,' when used herein or in any instrument relating to real property, are synonyms," etc.
Without engaging in an extensive discussion of these definitions, the attempt to apply the same for interpretation purposes to the said section 690, C. O. S. 1921, is without logic or reason.
There is no statute in this state which provides that an estate in real property which ordinarily means any interest extending from absolute fee ownership or seisin down to naked possession shall be considered "real estate." Cases are cited from this court and other courts, in some of which expressions are found to the effect that an oil and gas lease creates an estate in real property, or an estate in the realty. Bentley v. Zelma, 76 Okl. 116, 184 P. 131; Rich v. Doneghey, 71 Okl. 204, 177 P. 86, 3 A. L. R. 352; Woodworth v. Franklin, 85 Okl. 27, 204 P. 452, 27 A. L. R. 590. We deem that reference to these cases will enable the interested reader to discern the question in each particular opinion decided, and to undertake to amplify thereon serves no useful purpose herein.
On the other hand, the Turman Oil Company, in support of the judgment of the trial court, contends that the rule announced by this court in the case of Duff v. Keaton, 33 Okl. 92, 124 P. 291, 42 L. R. A. (N. S.) 472, and the cases from this and other courts reasoning along the same line, should be applied to justify the action of the trial court in holding that the judgment did not fix a lien upon the interest of the defendant Dunlap in the oil and gas lease in question. As stated by this court in the case of Nicholson Corporation v. Ferguson, 114 Okl. 16, 243 P. 195, we will not undertake to iron out the apparent confusion in the cases cited; neither shall we undertake to harmonize all of them. As held by this court in the said lastmentioned case, in dealing with the character of property created by an oil and gas lease in the form quoted in the said lastmentioned decision, we must recognize the distinction between real property or real estate and an estate in real property. The plaintiff in error, in a supplemental brief, says that the record in the instant case does not contain the form of the lease in question, but does state:
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