Luthi v. Evans

• Decision Date: 01 April 1978
• Docket Number: No. 48327,48327
• Citation: 223 Kan. 622,576 P.2d 1064
• Parties: Dale A. LUTHI and Marcia Luthi, Appellees, v. John R. EVANS and J. R. Burris, Appellees, and International Tours, Inc., a corporation, Appellant.
• Court: Kansas Supreme Court

Page 1064

576 P.2d 1064

223 Kan. 622

Dale A. LUTHI and Marcia Luthi, Appellees, v. John R. EVANS and J. R. Burris, Appellees, and International Tours, Inc., a corporation, Appellant.

No. 48327.

Supreme Court of Kansas.

April 1, 1978.

Syllabus by the Court

1. Under K.S.A. 58-2221 and 58-2222, recorded instruments of conveyance, to impart constructive notice to a subsequent purchaser or mortgagee, must describe the land conveyed with sufficient specificity so that the specific land conveyed can be identified.

2. A description of the real property conveyed should be considered sufficient if it identifies the property or affords the means of identification within the instrument itself or by specific reference to other instruments recorded in the office of the register of deeds.

3. An instrument of conveyance which describes the real property conveyed as "all of the grantor's property" in a certain county or other geographical area is valid, enforceable, and effectively transfers the entire interest as between the parties to the instrument. Such a transfer is not effective as to subsequent purchasers and mortgagees unless they have actual knowledge of the transfer.

Stanley E. Toland, of Toland & Thompson, Iola, argued the cause, and Clyde W. Toland, Iola, was with him on the brief for appellant.

Harold G. Forbes, of Forbes & Pohl, Eureka, argued the cause, and Dale L. Pohl, and Patrick T. Forbes, Eureka, were with him on the brief for appellees.

PRAGER, Justice:

This is a review of the judgment of the Court of Appeals entered in Luthi v. Evans, 1 Kan.App.2d 114, 562 P.2d 127. The factual circumstances and issues of law presented are discussed in depth in the majority opinion of Judge Spencer and in the dissenting opinion of Judge Abbott. We will set forth here only those facts necessary for the determination of the issue appealed to this court.

On February 1, 1971, Grace V. Owens was the owner of interests in a number of oil and gas leases located in Coffey county. On that date Owens, by a written instrument designated "Assignment of Interest in Oil and Gas Leases," assigned to defendant International Tours, Inc. (hereinafter Tours) all of such oil and gas interests. This assignment provided as follows:

"ASSIGNMENT OF INTEREST IN OIL AND GAS LEASES

"KNOW ALL MEN BY THESE PRESENTS:

"That the undersigned Grace Vannocker Owens, formerly Grace Vannocker, Connie Sue Vannocker, formerly Connie Sue Wilson, Larry R. Vannocker, sometimes known as Larry Vannocker, individually and also doing business as Glacier Petroleum Company and Vannocker Oil Company, hereinafter called Assignors, for and in consideration of $100.00 and other valuable consideration, the receipt whereof is hereby acknowledged, do hereby sell, assign, transfer and set over unto International Tours, Inc., a Delaware Corporation, hereinafter called Assignee, all their right, title, and interest (which includes all overriding royalty interest and working interest) in and to the following Oil and Gas Leases located in Coffey County, Kansas, more particularly specified as follows, to-wit:

"(Lease descriptions and recording data on 7 oil and gas leases not involved in this appeal are stated here.)

together with the rights incident thereto and the personal property thereon, appurtenant thereto or used or obtained in connection therewith.

"And for the same consideration the Assignors covenant with the Assignee, his heirs, successors or assigns: That the Assignors are the lawful owners of and has good title to the interest above assigned in and to said Lease, estate, rights and property, free and clear from all liens, encumbrances or adverse claims; That said Lease is valid and subsisting Lease on the land above described, and all rentals and royalties due thereunder have been paid and all conditions necessary to keep the same in full force have been duly performed, and that the Assignor will warrant and forever defend the same against all persons whomsoever, lawfully claiming or to claim the same. Assignors intend to convey, and by this instrument convey, to the Assignee all interest of whatsoever nature in all working interests and overriding royalty interest in all Oil and Gas Leases in Coffey County, Kansas, owned by them whether or not the same are specifically enumerated above with all oil field and oil and gas lease equipment owned by them in said County whether or not located on the leases above described, or elsewhere in storage in said County, but title is warranted only to the specific interests above specified, and assignors retain their title to all minerals in place and the corresponding royalty (commonly referred to as land owners royalty) attributable thereto.

"The effective date of this Assignment is February 1, 1971, at 7:00 o'clock a. m.

"/s/ Grace Vannocker Owens

" Grace Vannocker Owens

" Connie Sue Vannocker

" Larry R. Vannocker

"(Acknowledgment by Grace Vannocker Owens before notary public with seal impressed thereon dated Feb. 5, 1971, appears here.)" (Emphasis supplied.)

This assignment was filed for record in the office of the register of deeds of Coffey county on February 16, 1971.

It is important to note that in the first paragraph of the assignment, seven oil and gas leases were specifically described. Those leases are not involved on this appeal. In addition to the seven leases specifically described in the first paragraph, Owens was also the owner of a working interest in an oil and gas lease known as the Kufahl lease which was located on land in Coffey county. The Kufahl lease was not one of the leases specifically described in the assignment.

The second paragraph of the assignment states that the assignors intended to convey, and by this instrument conveyed to the assignee, "all interest of whatsoever nature in all working interests and overriding royalty interest in all Oil and Gas Leases in Coffey County, Kansas, owned by them whether or not the same are specifically enumerated above . . ." The interest of Grace V. Owens in the Kufahl lease, being located in Coffey county, would be included under this general description.

On January 30, 1975, the same Grace V. Owens executed and delivered a second assignment of her working interest in the Kufahl lease to the defendant, J. R. Burris. Prior to the date of that assignment, Burris personally checked the records in the office of the register of deeds and, following the date of the assignment to him, Burris secured an abstract and title to the real estate in question. Neither his personal inspection nor the abstract of title reflected the prior assignment to Tours.

The controversy on this appeal is between Tours and Burris over ownership of what had previously been Owens's interest in the Kufahl lease. It is the position of Tours that the assignment dated February 1, 1971, effectively conveyed from Owens to Tours, Owens's working interest in the Kufahl lease by virtue of the general description contained in paragraph two of that assignment. Tours then contends that the recording of that assignment in the office of the register of deeds of Coffey county gave constructive notice of such conveyance to subsequent purchasers, including Burris. Hence, Tours reasons, it is the owner of Owens's working interest in the Kufahl lease.

Burris admits that the general description and language used in the second paragraph of Owens's assignment to Tours was sufficient to effect a valid transfer of the Owens interest in the Kufahl lease to Tours as between the parties to that instrument. Burris contends, however, that the general language contained in the second paragraph of the assignment to Tours, as recorded, which failed to state with specificity the names of the lessor and lessee, the date of the lease, any legal description, and the recording data, was not sufficient to give constructive notice to a subsequent innocent purchaser for value without actual notice of the prior assignment. Burris argues that as a result of those omissions in the assignment to Tours, it was impossible for the register of deeds of Coffey county to identify the real estate involved and to make the proper entries in the numerical index. Accordingly, even though he checked the records at the courthouse, Burris was unaware of the assignment of the Kufahl lease to Tours and he did not learn of the prior conveyance until after he had purchased the rights from Grace V. Owens. The abstract of title also failed to reflect the prior assignment to Tours. Burris maintains that as a result of the omissions and the inadequate description of the interest in real estate to be assigned under the second paragraph of the assignment to Tours, the Tours assignment, as recorded, was not sufficient to give constructive notice to a subsequent innocent purchaser for value. It is upon this point that Burris prevailed before the district court. On appeal, the Court of Appeals held the general description contained in the assignment to Tours to be sufficient, when recorded, to give constructive notice to a subsequent purchaser for value, including Burris.

At the outset, it should be noted that a deed or other instrument in writing which is intended to convey an interest in real estate and which describes the property to be conveyed as "all of the grantor's property in a certain county," is commonly referred to as a "Mother Hubbard" instrument. The language used in the second paragraph of the assignment from Owens to Tours in which the assignor conveyed to the assignee "all interest of whatsoever nature in all working interests . . . in all Oil and Gas Leases in Coffey County, Kansas," is an example of a "Mother Hubbard" clause. The so-called "Mother Hubbard" clauses or descriptions are seldom used in this state, but in the past have been found to be convenient for death bed transfers and in situations where time is of the essence and specific information concerning the legal description of property to be conveyed is not...