Fry v. Dewees
| Decision Date | 09 March 1940 |
| Docket Number | 34638. |
| Citation | 151 Kan. 488,99 P.2d 844 |
| Parties | FRY et al. v. DEWEES et al. |
| Court | Kansas Supreme Court |
Rehearing Denied April 12, 1940.
Syllabus by the Court.
Instruments headed "Sale of Oil and Gas Royalty," but conveying a one-half interest of grantor's royalty under oil and gas leases for 15 years and as long thereafter as oil and gas should be produced, constituted "mineral deeds" and effected a severance of minerals from remainder of realty and created separate and distinct estates.
"Tenancy in common" is the holding of an estate in land by different persons under different titles, but there must be unity of possession and each must have right to occupy the whole in common with his cotenants.
Where under will, six children are devised an entire estate in realty, and thereafter they or their successors convey to other persons for a limited term an undivided part of minerals, owners of surface and reversionary rights in the minerals are "tenants in common" as to such estate and they are also "tenants in common" with each other and their grantees as to the mineral estate, but although some of them are common to both classes, all of them are not "tenants in common" in the entire estate.
Generally a tenant in common of a fee-simple estate in realty is entitled to partition as matter of right subject to full power of court to make a just and equitable partition between parties and to secure their respective interests. Gen.St.1935, 60-2101, 60-2114.
While action in partition is a statutory action, the court has substantially the same powers in administering it as were exercised by chancery courts under equity practice, and statute gives court full power to settle all questions involved on just and equitable principles. Gen.St.1935, 60-2101, 60-2114.
The partition of personalty is not controlled by statute relating to partition, but is only to be had upon application of equitable principles and may be had only upon showing facts indicating sufficient reason for equitable interference. Gen.St.1935, 60-2101, 60-2114.
Where owners of entire estate convey to others for a limited term an interest in oil, gas and minerals in place, and in such as may be produced under oil and gas leases to which conveyances are subject, and there has been production of oil under such leases, rights in production are bound up with mineral rights, and one tenant in common may not compel partition of mineral interests as matter of right. Gen.St.1935, 60-2101, 60-2114.
1. Instruments headed "Sale of Oil and Gas Royalty" examined, and held not only to convey personal property but to be mineral deeds and to effect a severance of the minerals from the remainder of the real estate, and to create separate and distinct estates.
2. Tenancy in common is the holding of an estate in land by different persons under different titles, but there must be unity of possession and each must have the right to occupy the whole in common with his cotenants.
3. Where, under a will, six children are devised an entire estate in real estate, and thereafter they or their successors in interest convey to other persons for a limited term an undivided part of the minerals underlying the real estate, the owners of the surface and the reversionary rights in the minerals are tenants in common as to such estate, and they are also tenants in common with each other and their grantees as to the mineral estate, but although some of them are common to both classes, all of them are not tenants in common in the entire estate.
4. As a general rule, a tenant in common of a fee simple estate in real property is entitled to partition as a matter of right. Such right, however, is subject to the full power of the court to make a just and equitable partition between the parties and to secure their respective interests.
5. The right to compel partition of personal property is not controlled by the provisions of the code of civil procedure respecting partition, but is only to be had upon application of equitable principles, and may be had only upon showing facts indicating sufficient reason for equitable interference.
6. Where owners of an entire estate convey to others for a limited term an interest in oil, gas and minerals in place, and in such as may be produced under oil and gas leases to which the conveyances are subject and there has been exploration for and production of oil under such leases, the rights in and to production are inextricably bound up with the mineral rights, and one tenant in common may not compel partition of the mineral interests as a matter of right.
Appeal from District Court, Rice County; Robert Garvin, Judge.
Action by Dena Dewees Fry and others against Eva Louise Dewees and others for partition of land and adjudication of parties' claims, wherein the Southland Royalty Company and other defendants filed a demurrer. From a judgment for plaintiffs, defendants appeal.
Affirmed in part and reversed in part.
A. W. Hershberger, J. B. Patterson, Enos E. Hook, and P. J. Warnick, all of Wichita, Ben Jones, of Lyons, R. C. Davis and Warren H. White, both of Hutchinson, and George B. Collins, Wm. F. Pielsticker, and W. C. Attwater, all of Wichita, for appellants.
Harold Gibson, of Lyons, for appellees.
G. L. Light and Auburn G. Light, both of Liberal, amici curiae.
This was an action in partition, the general question being the right to force division and partition by owners of undivided interests in the fee to real estate and undisposed of oil, gas and mineral rights therein as against other similar owners as well as against others having rights in a part or portion of the oil, gas and minerals as grantees or assignees from both plaintiffs and other defendants.
The controversy grows out of facts none of which are in dispute. One George Dewees died October 4, 1905, leaving a will in which he gave his widow a life estate in the west half of the northwest quarter of section 32, township 20, range 7, and the northeast quarter of section 31, township 20, range 7 in Rice county, the remainder to his six children. There is some lack of uniformity in their names as disclosed in parts of the record. We shall refer to them as Frank Dewees, Dena Dewees Fry, Lily Reames, Mattie Fant, Effie D. Richards, and Georgia I. Brown. Frank Dewees died in 1933 leaving a will under which he gave his wife Eva Louise Dewcos a life estate and his daughters Virginia Dewees and Viola Haxton the remainder. In our statement of facts we shall ignore the spouses of those who were married at the various dates mentioned.
In March, 1936 the above named owners executed two oil and gas leases to D. R. Lauck. One covered the above described northeast quarter and was subsequently assigned to the defendant, C. L. Carlock. The other covered the west half of the northwest quarter described and was subsequently assigned to the defendants, C. L. Carlock and the Republic Natural Gas Company.
In November, 1936, the various owners of the fee, by a series of instruments entitled "Sale of OH and Gas Royalty", conveyed to the various grantees therein named a one-half interest of the grantor's royalty under the oil and gas leases and as more particularly set out later. Each of these instruments covered the entire 240 acres. There was development under the lease on the eighty acres and two producing wells were drilled. In December, 1937 all of the persons having an interest in the proceeds arising from operations under that lease signed and delivered to the Skelly Oil Company a so-called division order providing for the division among themselves of moneys payable for oil produced from the eighty acres.
On January 3, 1939, Dena Dewees Fry, Lily Reames and Georgia I. Brown commenced this action in which all of the other owners of the fee or of any interest in the oil, gas and minerals were made defendants, seeking an adjudication of the respective claims of all parties; that they be adjudged tenants in common, and that the real estate be partitioned, etc. The demurrer of defendants, the Southland Royalty Company, R. L. Dutton and F. G. Stodder, on the ground of misjoinder of causes of action and failure to state sufficient facts was overruled. All of the defendants answered. While all of the answers are not identical, the general effect of each was to raise the question whether partition could legally be had, whether it was equitable, etc., which matters are discussed.
At the trial, the court found that plaintiffs Dena Dewees Fry, Lily Reames and Georgia I. Brown, were each owners of the undivided one-sixth of the surface and the reversionary interest after the expiration of the determinable fees and that each retained and was the owner of 40/480 of the oil gas and minerals in and under and that might be produced from the real estate. That defendants Effie D. Richards and Mattie Fant had like interests; that defendant Eva Louise Dewees had a like interest except that her share in the surface was 1/12 and in the reserved minerals was 20/480; that the defendants Viola Haxton and Virginia Dewees had like interests except that their shares were each 1/24 in the surface and 10/480 in the reserved minerals, and that each of the following defendants was the owner of determinable fee titles to the oil, gas and other minerals in and under and that may be produced from the real estate, each extending for fifteen years from November 5, 1936, except the Southland Royalty Company which extended fifteen years from November 7, 1936, viz., Roxa Carlock and N.C. Sevin, each 10/240; F. G. Stodder, R. L. Dutton, Southland Royalty Company, and H. T. Ritchie, each 20/240, H. T. Ritchie 40/480 and C. L. Carlock 100/480. It may here be observed there is no dispute that the shares were otherwise...
To continue reading
Request your trial
-
Cosgrove v. Young
...intent as reflected by the terms, the contents thereof. A few of such cases are Serena v. Rubin, 146 Kan. 603, 72 P.2d 995; Fry v. Dewees, 151 Kan. 488, 99 P.2d 844; Rutland Savings Bank v. Steele, 155 Kan. 667, 127 P.2d 471; Dennett v. Meredith, 168 Kan. 58, 64, 211 P.2d 117. See, also, an......
-
D.W. v. Bliss
...Richard, as a cotenant of the Bliss home, had an undivided right to possession and control of the property. See Fry v. Dewees, 151 Kan. 488, 493, 99 P.2d 844 (1940). Carol had no right to restrict Richard, as co-owner, from inviting D.W. on to the property. Extension of her ownership intere......
-
Cole v. Coons
... ... Casey, 156 Kan. 590, 598, 134 P.2d 665 ... [162 ... Kan. 638] Second, the right to maintain partition ... 'As ... a general rule, a tenant in common of a fee simple estate in ... real property is entitled to partition as a matter of ... right.' Fry v. Dewees, 151 Kan. 488, 99 P.2d ... 844, 845, syl. 4 ... The ... legislature may determine when a homestead may be ... partitioned. In 1868 our legislature enacted a statute which ... 'If ... the intestate left a widow and children, and the widow again ... marry, or when all of ... ...
-
Mobil Oil Corp. v. State Corp. Commission, 50551
...474, 479, 178 P.2d 235 (1947). As tenants in common each must have the right to occupy the whole in common with the cotenants. Fry v. Dewees, 151 Kan. 488, Syl. P 2, 99 P.2d 844 The common law rule of waste prohibited a cotenant from removing minerals from the land without the concurrent la......
-
CHAPTER 9 TAKING GAS IN KIND ABSENT A BALANCING AGREEMENT
...See Okla. Stat. tit. 52, § 542 D. (Supp. 1989). [6] See, e.g., Cox v. Davidson, 397 S.W.2d 200 (Tex. 1965). [7] See, e.g., Fry v. Dewees, 151 Kan. 488, 493, 99 P.2d 844, 847 (1940). [8] E.g., Prairie Oil & Gas Co. v. Allen, 2 F.2d 566 (8th Cir. 1924). The court, applying Oklahoma law, holds......