Kernkamp v. Wellsville Fire Brick Co.

• Decision Date: 04 May 1943
• Citation: Kernkamp v. Wellsville Fire Brick Co., 170 S.W.2d 692, 237 Mo.App. 457 (Mo. App. 1943)
• Parties: Walter Kernkamp and Mary Kernkamp, Respondents, v. Wellsville Fire Brick Company, a Corporation, (Defendant) Appellant. Leo Abele and Les Baur, Defendants
• Court: Missouri Court of Appeals

170 S.W.2d 692

237 Mo.App. 457

Walter Kernkamp and Mary Kernkamp, Respondents, v. Wellsville Fire Brick Company, a Corporation, (Defendant) Appellant. Leo Abele and Les Baur, Defendants

Court of Appeals of Missouri, St. Louis District

May 4, 1943

Respondent's Motion for a Rehearing Denied May 21, 1943.

Appeal from the Circuit Court of Montgomery County; Hon. Frank Hollingsworth, Judge.

Reversed.

S S. Nowlin and Glover E. Dowell for appellant.

(1) Minerals in place are land and may be conveyed as such, and when thus conveyed constitute a separate and distinct estate of inheritance for all purposes.Wardel v. Watson,93 Mo. 107, 111;Gordon v. Park,219 Mo. 600, 613;Young v. Young,270 S.W. 653, 654;Kirk v Mattier,140 Mo. 23, 32;Fowler v. Marion & Pittsburgh Mining Co.,315 Ill. 312, 146 N.E. 318;Washburn v. Gregory,125 Minn. 491, 147 N.W. 706, L. R. A. 1916D, 304;Big Creek Coal Co. v. Tanner,303 Ill. 297, 135 N.E. 433, 434;Gordon v. Million,248 Mo. 155, 165.(2) When the mineral estate in land is owned separate and apart from the surface estate, such mineral interest is land, taxable as such, and must be taxed separate from the surface estate.Washburn v. Gregory Co.,125 Minn. 491, 147 N.W. 706;In re Maplewood Coal Co.,213 Ill. 283;Big Creek Coal Co. v. Tanner,303 Ill. 297, 135 N.E. 433, 434;Central Coal & Coke Co. v. Carseloway,45 F.2d 744;Mound City Brick Co. v. Goodspeed,83 Kan. 136, 109 P. 1002;Sec. 10981, R. S. Mo. 1939.(3) A delinquent tax has its foundation in the assessment of such tax.A tax deed based upon tax proceedings in which there has been no assessment, does not convey title to the land.Schlafley v. Baumann(Mo.),108 S.W.2d 363, 368;State v. Lesser(Mo.),141 S.W. 888;Washburn v. Gregory Co.,125 Minn. 491, 147 N.W. 706, L. R. A. 1916D 304;Kohln v. West Cabanne Imp. Co.,278 Mo. 310, 213 S.W. 25, 27;Sec. 10981, R. S. Mo. 1939.(4) The fact that the fire clay rights were never assessed does not affect the validity of the tax deed founded upon and describing the surface rights by its government description only.There is a way provided for assessing and collecting taxes omitted from the assessment list.Sec. 10978, R. S. Mo. 1939;State v. Fullerton,143 Mo. 682;State v. Vogelsang,183 Mo. 17.(5) Where fire clay is separated by grant, from the surface rights, as in this case, such an estate carries with it the right to use so much of the surface estate as may be reasonably necessary for the proper use of said mineral estate.And, in such proper use, the owner of the mineral estate is not liable for damages to the surface owner.Wardell v. Watson,93 Mo. 107, 111;Gordon v. Park,219 Mo. 600, 614;Gordon v. Million,248 Mo. 155, 165;Young v. Young, 270 S.W. 653, 654.

Barnes & Barnes and Robert V. Niedner for respondents.

(1) A tax against real estate in Missouri is a tax against the property and not against the owner thereof.Meriwether v. Averly,228 Mo. 218, 250;Construction Co. v. Ice Rink Co.,242 Mo. 241;Dunlap v. Gallatin Co.,15 Ill. 7;Sec. 10984, R. S. Mo. 1939.(2) The sale of land for delinquent taxes in Missouri conveys title in fee simple and certificates of purchase and collector's deeds carry all interests of every nature and description to the purchaser.Secs. 11125, 11149, 11150, R. S. Mo. 1939;75 A. L. R. 434 et seq.;Peterson v. Hall,57 W.Va. 535;Willman v. Hoge,66 W.Va. 234;Dingess v. Huntington Devel. & Gas Co.,271 F. 864;Miller v. Estabrook,273 F. 143;Hutchison v. Kleine,199 Pa. 564;Eureka Lumber Company v. Terrell(Miss.),48 So. 628.(3) Assessment of land by government description is the assessment of every interest in such land.Sec. 10984, R. S. Mo. 1939;Nor. Coal & Iron Co. v. Burr,42 Pa. 638.(4) The interests of the owner of minerals and the owner of the surface in and of a tract of land are akin to the interests of tenants in common of a tract of land; each owner or tenant may tender and pay the taxes on his undivided share but if neither pays the taxes on any of the land, the land and every interest in it must be sold for taxes.Secs. 10984,11084, R. S. Mo. 1939;Young v. Young,270 S.W. 653;Kirk v. Mattier,140 Mo. 23;Fowler v. Marion & Pittsburgh Mining Co., 315 Ill. 312.

Anderson, J. Hughes, P. J., and McCullen, J., concur.

OPINION

ANDERSON

This action was brought to recover for an alleged conversion of fire clay and for damage to land from which the fire clay was mined.A jury was waived and the case tried to the court, resulting in a finding and judgment for respondents and against appellant herein, the Wellsville Fire Brick Company, a corporation.

Respondents claim the land and fire clay in question by virtue of a tax deed; and appellant claims title to the fire clay on the land, and easement rights connected therewith, under a warranty deed executed prior to respondents' tax deed, and which warranty deed conveyed outright all of the fire clay on said land.

The record shows Mrs. Sophia E. Loe to be the common source of title to all of the real estate involved, and shows that on July 5, 1913, she conveyed to William J. Gilbert "all the fire clay and flint rock in and upon the following described . . . Land, lying, being and situate in the County of Montgomery and State of Missouri, "to-wit: The east three-quarters of the east half of the northwest quarter of section thirty-four (34), township forty-eight (48) north, range five (5) west, said tract of land being in the shape of a rectangular parallelogram, and containing sixty acres, more or less."The deed, filed and recorded in the office of the recorder of deeds of Montgomery County, Missouri, on August 9, 1913, in addition to conveying all the fire clay and flint rock on said land, conveyed the usual easement rights for the mining and removal of the fire clay.

On March 13, 1917, Sophia E. Loe, by a warranty deed, for a consideration of $ 50, conveyed to William J. Gilbert the said land by its government description, but erroneously describing the land as being in Township 47 instead of in Township 48.This warranty deed did not mention the fire clay or easement rights.

On May 1, 1922, William J. Gilbert and wife, by warranty deed, conveyed all of the fire clay and easement rights connected therewith upon the land in question to the New Florence Fire Brick Company, a corporation.This deed, filed December 15, 1922, and recorded in the land records of Montgomery County, Missouri, conveyed the property described in the deed of July 5, 1913, from Sophia E. Loe to William J. Gilbert.

On October 22, 1919, William J. Gilbert and wife conveyed to William R. Keith, Jr., the sixty-acre tract of land, by its government description, but erroneously describing the land as being in Township 47 instead of Township 48, and expressly excepting from the conveyance all of the fire clay, flint rock, and easement rights described in the original deed from Loe to Gilbert.On September 27, 1920, William R. Keith, Jr., and wife conveyed this same sixty-acre tract of land by its government description to Noah Bethel.This warranty deed also erroneously described the land as being in Township 47, and also expressly excepted the fire clay, flint rock, and easements appurtenant thereto.On December 6, 1924, William R. Keith, Jr., and wife executed a deed of correction to Noah Bethel, correctly describing the sixty-acre Loe tract as being in Township 48, and also excepting the fire clay, flint rock, and easement rights connected therewith.

Briefly, the evidence discloses that the deed from Gilbert to the New Florence Fire Brick Company conveyed the fire clay and easement rights outright to the New Florence Fire Brick Company.The deeds from Gilbert to Keith and from Keith to Noah Bethel granted to Bethel the surface rights only, and those rights subject to the easement rights held by the New Florence Fire Brick Company.

The sixty acres of land in question were carried on the assessment books for the years 1934, 1935, 1936, and 1937, as follows:

"60 E PT E1/2 NW NOAH BETHEL, Sec. 34, Twp. 48, R 5."

Taxes as assessed for the years 1934, 1935, 1936, and 1937, became delinquent.The land was advertised for sale and sold under the provisions of the Jones-Munger Act on November 7, 1938.Stephen J. Oliver, at said sale, became the purchaser of said tract, for the price of $ 21.51, and on said date received a certificate of purchase under delinquent tax sale, executed by G. E. Rohrer, then collector of Montgomery County.

On October 14, 1940, said Stephen J. Oliver, by written assignment, sold, assigned, and transferred said certificate of purchase to respondents; and on November 6, 1940, said Stephen J. Oliver, by a separate written instrument, attempted to assign to respondents any and all claims for damages that he might have against the defendants.Thereafter, on November 9, 1940, a collector's deed was issued and delivered to respondents, conveying to them the land, under the following description:

"situate in the County of Montgomery and State of Missouri, and described as follows, namely:

"Sixty (60) Acres East Part, East One Half North West Quarter Section Thirty Four (34) Township Forty Eight (48) Range Five (5) in Montgomery County, Missouri."

The Wellsville Fire Brick Company, appellant herein, and the New Florence Fire Brick Company were separate corporations, but were managed and operated together for their mutual interests, and appellant seems to concede that if the tax deed conveyed title to the fire clay and flint rock, the Wellsville Fire Brick Company would be liable for conversion of all the fire clay removed by it from the premises after the tax sale.

The defendant, Leo Abele, was superintendent of the New Florence Fire Brick Company; and defendantLes Baur was...