Jesberg v. Klinger

• Decision Date: 21 January 1961
• Docket Number: 42033,Nos. 42032,s. 42032
• Citation: 358 P.2d 770,187 Kan. 582
• Parties: Edith Allison JESBERG, Appellant, v. Dwight D. KLINGER, Appellee. Marianne Allison METCALF, Appellant, v. Dwight D. KLINGER, Appellee.
• Court: Kansas Supreme Court

Page 770

358 P.2d 770

187 Kan. 582

Edith Allison JESBERG, Appellant, v. Dwight D. KLINGER, Appellee.

Marianne Allison METCALF, Appellant, v. Dwight D. KLINGER, Appellee.

Nos. 42032, 42033.

Supreme Court of Kansas.

Jan. 21, 1961.

Syllabus by the Court

1. Ownership of an interest in and to oil and gas in place constitutes ownership of an interest in real property.

2. Owners of fractional mineral interests in place are tenants in common to the right or title of the stated portion of the minerals conveyed, notwithstanding one of them may also be the owner of 'the surface' of the land.

3. Where the owner of the surface of the land conveys fractional portions of the minerals in place to more than one person, each grantee becomes the proprietor or owner of a distinct item of property which is taxable to him pursuant to G.S.1949, 79-420, separate and apart from the interest which is taxable to the owner of the surface, and separate and apart from other fractional portions of the minerals conveyed.

4. Where fractional mineral interests in place have been severed and carved out of the land, and taxes are separately assessed against the mineral interest of one cotenant pursuant to G.S.1949, 79-420, which become delinquent and remain unredeemed and such interest is sold by the sheriff at a tax foreclosure sale, another cotenant is eligible to purchase such mineral interest to the same extent as any member of the general public and may acquire fee simple title as against his cotenant, provided, of course, he acts in good faith and is under no contractual obligation, express or implied, to pay the taxes separately assessed against his cotenant.

5. The question whether the plaintiff's mineral interest was over or under valued, or whether it had any value at all, is not present for appellate review.

6. The record in an action to cancel and set aside a sheriff's deed conveying to the defendant, the owner of the surface and a cotenant of the plaintiff in the minerals in place, the plaintiff's undivided one-seventh interest in such minerals, examined and it is held: The defendant was an eligible purchaser at the tax foreclosure sale and acquired fee simple title to the plaintiff's fractional mineral interest when he recorded the sheriff's deed issued to him on August 24, 1956 (G.S.1949, 79-2804).

Frank E. Dailey, Jr., Coldwater, and Maurice A. Wildgen, Glee S. Smith and Donald L. Burnett, Larned, were on the briefs for appellants.

J. V. Severe, Ashland, and E. C. Minner and Harry A. Waite, Dodge City, were on the briefs for appellee.

FATZER, Justice.

Two actions were commenced pursuant to G.S.1949, 79-2804b to cancel and set aside a sheriff's deed conveying to the defendant the undivided one-seventh interest of each of the plaintiffs in the minerals in place in 1120 acres of land in Clark County. The plaintiffs' evidence and the question of law involved being the same in both cases, the actions were consolidated for trial by the court below which made findings of fact and conclusions of law and rendered judgment in favor of the defendant. The plaintiffs appeal from the judgment, and pending the appeal the parties' stipulation that the decision in one case would bind and control the other was approved. Accordingly, the cases were consolidated for appellate review and case No. 42,032, being identical to case No. 42,033, is the appeal considered in this opinion.

In June 1939 Delle Allison owned the fee simple title to the land in question and in order to bring about a family partition conveyed all the surface and one-seventh interest in the minerals in place to her son John Allison, and simultaneously conveyed by separate deeds an undivided one-seventh interest in the minerals in place to each of her six daughters, the plaintiff being one of them. Those conveyances were duly recorded in Clark County. Prior to November 1945 John Allison purchased the mineral interests of four of his sisters (other than the plaintiffs) and reconveyed to two of them by separate written conveyances their respective undivided interests for a term of fifteen years from November 1, 1945, and as long thereafter as oil and gas are produced, thus merging the surface ownership and an undivided five-sevenths' interest in the minerals in place in him subject to the 'term' mineral interests of the two sisters.

In November 1945 John Allison sold and conveyed all of his right, title and interest in the land in question to the defendant Dwight D. Klinger. That conveyance was duly recorded and was a transaction in which the plaintiff was not involved.

The plaintiff is a resident of California where she had lived for several years prior to acquiring any interest in the land in controversy. Klinger is a resident of Clark County where he had lived for several years prior to November 1, 1945.

In 1946 and subsequent years the county officials of Clark County complied with G.S.1949, 79-420 and assessed and taxed the surface rights of all the land in that county separately from the mineral rights where the surface and mineral rights were owned by different parties, and assessed and taxed the plaintiff's undivided one-seventh mineral interest separately from mineral interests owned by other persons and separately from the surface of the land in question. Upon the plaintiff's failure to pay the taxes assessed against her mineral interest it was bid in by the county at the annual delinquent tax sale (G.S.1949, 79-2306) and remained unredeemed for more than three years (G.S.1949, 79-2401a).

In the spring of 1956 the board of county commissioners of Clark County instituted a tax foreclosure action in the district court entitled 'Board of County Commissioners of Clark County v. Altman, et al,' case No. 4376, to foreclose delinquent and unredeemed tax liens on real estate in the county (G.S.1949, 79-2801 et seq.), including the mineral interest of the plaintiff. Personal service of summons was not had upon the plaintiff, and upon the affidavit of the county attorney service of summons by publication was obtained which was approved by the district court.

On June 11, 1956, no appearance or pleadings having been made or filed by the plaintiff and she being in default, the district court rendered judgment in favor of the board of county commissioners foreclosing the tax liens upon the real estate described in the tax foreclosure petition, including the plaintiff's mineral interest here involved. On June 12, 1956, the district court issued an order for the sale of the real estate, notice of which was given, and at the sheriff's sale held on August 1, 1956, the plaintiff's mineral interest was sole to the defendant for the sum of $63.90, representing the judgment for unredeemed taxes and a proportionate share of costs. The sale was duly confirmed by the district court on August 23, 1956. The following day the sheriff of Clark County executed and delivered to the defendant his deed conveying the plaintiff's interest in and to the minerals in place, which was recorded on August 29, 1956.

On August 17, 1957, being within twelve months from the date of confirmation of the sheriff's sale (G.S.1949, 79-2804b), the action out of which this appeal arises was commenced by the plaintiff in which she alleged in substance that the defendant knew her undivided one-seventh interest in the minerals in place was taxed pursuant to G.S.1949, 79-420; that he knew for at least three years prior to the institution of the tax foreclosure action that the plaintiff had not paid the taxes assessed against her mineral interest; that he failed to notify plaintiff of her unpaid taxes; that at all times he knew the interest of plaintiff would be sold for unpaid taxes if the same were delinquent a sufficient length of time; that he knew if the plaintiff did not know of the commencement of the tax foreclosure action he would be able to purchase the mineral interest of the plaintiff at the sheriff's sale; that with his knowledge of the foregoing facts and law the defendant devised in his mind a plan to so acquire the interest of plaintiff in the minerals which plan she alleged the defendant carried out; that as a result of the bad faith on the part of the defendant, and an implied contract arising out of the fiduciary relationship the defendant bore the plaintiff as a tenant in common in the real estate in question, he was disqualified as a purchaser at the tax foreclosure sale and any sale made to the defendant pursuant to that proceeding inured to the benefit of the plaintiff and she tendered to him through the district court the amount of money, including interest, necessary to reimburse him for his purchase of her mineral interest.

This case was here in 1959 (Jesberg v. Klinger, 184 Kan. 519, 337 P.2d 660), and it was held that the defendant's demurrer to the plaintiff's petition was erroneously sustained and the case was remanded for further proceedings. In his answer the defendant denied all of the plaintiff's allegations except the prior ownership of the land and mineral interests; admitted the tax foreclosure sale and that he purchased the mineral interest of the plaintiff at the sale, and alleged that he acted in good faith in the purchase of the plaintiff's mineral interest and under the honest belief that he was an eligible purchaser and could purchase the same as a stranger might do.

Following trial the district court specifically found that at and prior to the date of the sheriff's sale the defendant was not acquainted with the plaintiff and did not know where she resided; that he never at any time had communication, conversation or transaction with anyone representing the plaintiff concerning her mineral interest; that he had not paid any taxes upon plaintiff's mineral interest nor had he been requested to pay any taxes thereon; that he did not know until after publication of the sheriff's notice of sale that the taxes on plaintiff's mineral interest had not been paid,...