Johnson v. Gray

• Decision Date: 07 February 1966
• Docket Number: No. 7742,7742
• Citation: 1966 NMSC 20,75 N.M. 726,410 P.2d 948
• Parties: Katie Mae JOHNSON, Plaintiff-Appellee, v. David A. GRAY, Hester C. Gray, Luther Cooper and Robert C. Dow, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 948

410 P.2d 948

75 N.M. 726

Katie Mae JOHNSON, Plaintiff-Appellee, v. David A. GRAY, Hester C. Gray, Luther Cooper and Robert C Dow, Defendants-Appellants.

No. 7742.

Supreme Court of New Mexico.

Feb. 7, 1966.

James L. Dow, Carlsbad, for appellants.

E. Ray Phelps, Roswell, for appellee.

NOBLE, Justice.

David A. Gray, his wife Hester, and Robert C. Dow, defendants and cross-complainants, and Luther C. Cooper, defendant, have appealed from an adverse judgment in a suit to quiet title brought by Katie Mae Johnson.

The trial court found that the Grays acquired fee simple title to the land involved in this action in 1920 and thereafter conveyed a 3/4 royalty interest and an undivided 1/2 of the minerals, retaining the surface and the remainder of the minerals. Plaintiff's husband, now deceased, thereafter obtained a money judgment against the Grays and attached the 320 acres of land in aid of satisfaction of the judgment. Plaintiff's claim of title is based upon a sheriff's deed issued pursuant to the attachment sale conveying to her husband all of the right, title and interest of the Grays in and to the described 320 acres. Title to the surface and all of the minerals not conveyed by the Grays was quieted in the plaintiff.

This appeal presents the questions (1) whether a conveyance of a fractional undivided interest in the minerals operated to sever the entire mineral estate from the surface so as to prevent the unconveyed mineral interest from passing under the sheriff's deed which described the 320 acres by legal subdivision but without specific reference to minerals and (2) whether the attachment proceeding upon which plaintiff's title rests was void because of the failure of the principal to sign the attachment bond.

Appellants rely strongly on Kaye v. Cooper Grocery Company, 63 N.M. 36, 312 P.2d 798, in support of their assertion that a conveyance of a portion of the minerals effectively severs them in their entirety from the surface estate so that thereafter a description of the real estate by legal subdivision did not include the unconveyed portion of the mineral estate. To state it another way, they argue that after such conveyance of a portion of the minerals, the attachment of 'all right, title and interest' of the Grays in the 320 acres described only the surface estate but did not include the minerals that had not been previously conveyed by them. We do not construe Kaye to extend so far. While that decision said that our statutory provisions and the public policy of this state require the entire mineral estate to be separately assessed and taxed after the conveyance of a fractional undivided interest in the minerals, Kaye was expressly limited to the assessment and taxing situation there involved. But it expressly recognized that for purposes other than taxation there may undoubtedly be only a partial severance of the mineral estate from the remainder of the fee. Appellants, therefore, can find no solace in Kaye v Cooper Grocery Company, supra, nor does Noble v. Kahn, 206 Okl. 13, 240 P.2d 757, 35 A.L.R.2d 119, support their position. No Now Mexico decision has been called to our attention directly dealing with a patial severance of minerals except the tax title cases based upon particular statutory provisions.

We are then brought to the question of how a severance of the surface and mineral estates for purposes other than assessment and taxation is accomplished and the effect of a conveyance of only a part of the minerals. It is well settled in this jurisdiction that a grant or reservation of the underlying oil and gas, or royalty rights therein, is a grant or reservation of real property, Duvall v. Stone, 54 N.M. 27, 213 P.2d 212; Terry v. Humphreys, 27 N.M. 564, 203 P. 539, that may be severed from the surface. Such severance may be effected by a conveyance of the mineral estate, Jilek v. Chicago, Wilmington & Franklin Coal Co., 382 Ill. 241, 47 N.E.2d 96, 146 A.L.R. 871; Anno. 146 A.L.R. 880, 881, or by a reservation or exception of the mineral estate, Harris v. Currie, 142 Tex. 93, 176 S.W.2d 302, or by a conveyance, reservation or exception of the surface estate, Shell Oil Co. v. Manley Oil Corp., 124 F.2d 714 (7th Cir. 1941), or it may be accomplished by judgment. Henderson v. Chesley, 229 S.W. 573 (Tex.Civ.App.).

We think it is clear that a...