Medford v. Board of Trustees of Park College

• Decision Date: 07 December 1946
• Docket Number: 36608.
• Citation: 175 P.2d 95,162 Kan. 169
• Parties: MEDFORD v. BOARD OF TRUSTEES OF PARK COLLEGE.
• Court: Kansas Supreme Court

175 P.2d 95

162 Kan. 169

MEDFORD v. BOARD OF TRUSTEES OF PARK COLLEGE.

No. 36608.

Supreme Court of Kansas

December 7, 1946

Appeal from District Court, Thomas County; W. K. Skinner, Judge.

Action to quiet title by Sam Medford against the Board of Trustees of Park College. From a judgment for plaintiff, the defendant appeals.

Judgment reversed with instructions.

HARVEY C. J., dissenting.

Syllabus by the Court

1. Dicta is not binding upon the court of its origin or upon any other court and does not control the conclusion in a subsequent case when the precise point is presented for decision.

2. Under G.S.1935, 79-420, which pertains to the separate listing for taxation of mineral interests, a grantor retaining by, or excepting from, a conveyance a vested record title to any minerals is not required to record the instrument executed by him within ninety days from its execution or list separately for taxation such mineral interests.

Frank E. Tyler, of Kansas City (E. H. Benson, of Colby, Kan., and R. E. Draper, of Kansas City, on the brief; Edgar C. Ellis and Roy K. Dietrich, both of Kansas City, of counsel), for appellant.

E. F Beckner and Leon N. Roulier, both of Colby, for appellee.

BURCH, Justice.

This appeal necessitates a construction of our statute requiring that when the title to minerals is severed from the fee to the surface, the mineral rights shall be valued and listed separately from the fee of such land and that the land itself and the right to the minerals shall be separately taxed to the respective owners thereof. The involved statute (G.S.1935, 79-420) will be set forth subsequently herein. The precise question to be considered is whether a grantor must list the mineral rights separately for taxation in the event the grantee fails to record a deed, in which the grantor excepted and reserved the mineral interests, within ninety days after its execution. The trial court held that it was incumbent upon the grantor to record or list for taxation the reserved or excepted oil, gas and mineral rights and that the failure to do so within the statutory period resulted in the grantor having conveyed full fee title to the grantee and that his successor in interest obtained such title. The stipulated and otherwise admitted facts follow.

During the month of July, 1944, the trustees of Park College executed a warranty deed to Charlie J. Kallman covering the land in controversy. For some reason, not now material, the deed was placed in escrow on July 31, 1944. The escrow holder delivered the deed to Kallman on or about August 21, 1944. It contained the following provision:

'Party of the first part excepts and reserves all oil, gas and all other minerals for the benefit of itself, its successors and assigns, with the right at all times to prospect for mine, extract and remove same from the land by any and all methods; * * *'

Nothing more was done by Park College or by Kallman which affected the title to any part of the property until on or about March 6, 1945, when Kallman executed a quit-claim deed covering the land to the appellee, Sam Medford. On March 15th Medford caused to be filed for record the warranty deed from Park College to Kallman and also the quit-claim deed from Kallman to Medford. On June 22, 1945, Medford filed an action to quiet title to the involved land. In his petition it was alleged that the exception or reservation hereinbefore set forth amounted to a severance of the minerals from the land and that because of the failure to record the severance within the ninety days or to list the same for taxation the exception or reservation became absolutely void and that Medford was, therefore, entitled to have his title quieted and be declared the sole and unconditional owner of the entire fee title in and to the land described in the deed. The amended answer filed by Park College set forth that the deed to Kallman conveyed to him only the surface rights; that Kallman had sole possession of the deed at all times subsequent to its delivery by the escrow holder and that, therefore, Kallman could have at any time thereafter filed the deed for record; that any delay in filing the same was chargeable exclusively to Kallman or his assigns; that Kallman and his successor in interest are not entitled to derive any benefit to the prejudice of Park College from the delay in filing the deed for record; that Kallman is estopped from asserting any interest in the oil, gas or minerals under the described real estate; that Medford did not acquire any interest in the same; that Park College owns all of the oil, gas or mineral rights; that if the involved statute purports to forfeit, invalidate or otherwise deprive Park College of its title to the oil, gas or minerals under the described real estate, the same is unconstitutional and void in that Park College would thereby be deprived of its property without just compensation and without due process of law and would be denied equal protection of the laws. In its answer Park College also alleged that the failure to record the deed to Kallman within the ninety-day period in compliance with the statute resulted in the entire deed being void and that Park College should be decreed to be the sole owner and entitled to the immediate possession of the real estate. Medford's reply consisted of a general denial. The case was tried to the court upon the issues joined by the pleadings and upon the stipulation of facts which, in addition to the foregoing, set forth that there had been no separate listing of or offer to list for taxation the mineral estate by Park College for the taxable years 1944 and 1945; that Park College acquired complete fee title to the real estate in 1939 and that the deed showing such title in Park College was recorded on June 13, 1939. It was further stipulated that there had been no production of oil, gas or other valuable minerals from land within a radius of twenty miles of the land in controversy and that it was the policy of Park College to insert in all of its deeds of farm land a similar reservation of the oil, gas and valuable mineral rights. The trial court found that the quoted exception or reservation in the deed was equivalent to a severance of the oil, gas and other minerals in place and that the reservation was null and void because it was not recorded within ninety days or listed for taxation in accordance with the statute, and adjudged that Medford was the owner in fee simple of the real estate and further that Park College, and all parties claiming as its successors in interest, should be barred from asserting any interest in the property. A motion for a new trial was overruled and appeal followed.

The orbit of the action is around our statute, G.S.1935, 79-420, supra, which reads: 'That where the fee to the surface of any tract, parcel or lot of land is in any person or persons, natural or artificial, and the right or title to any minerals therein is in another or in others, the right to such minerals shall be valued and listed separately from the fee of said land, in separate entries and descriptions, and such land itself and said right to the minerals therein shall be separately taxed to the owners thereof respectively. The register of deeds shall furnish to the county clerk, who shall furnish on the first day of March each year to each assessor where such mineral reserves exist and are a matter of record, a certified description of all such reserves: Provided, That when such reserves or leases are not recorded within ninety days after execution, they shall become void if not listed for taxation.'

Counsel for Park College contend that the statute should not apply where the mineral rights are excepted from or reserved in a deed conveying only the surface rights. Counsel for Medford assert that this court definitely has held to the contrary in the case of Johnson v. Johnson, 150 Kan. 541, 95 P.2d 329. In the cited case the record title owner of real estate conveyed the same by a deed which reserved all the oil, gas and other minerals in the land. The deed was recorded in a few days. Consequently, no controversy arose by reason of the failure to record the deed within the ninety days after its execution. The question for decision in the case was whether such a recording of the deed was a sufficient, separate listing for taxation of the mineral interests so that it was unnecessary for subsequent purchasers or holders of the mineral interests also to record the instruments conveying the mineral interests to them within ninety days or otherwise list them for separate taxation. The holding was to the effect that the subsequent conveyances of the mineral interests were of no importance since a severance of the mineral rights from the title to the surface was made by the original conveyance which had been recorded in compliance with the statute. In other words, we held that where a severance of the mineral interests has been made and recording thereof has followed in compliance with the statute that it is not necessary thereafter to record or list separately for taxation other conveyances of integral interests in and to the mineral rights. As before stated, since there had been a compliance in the cited case with the statute in connection with the recording of the original deed, no question actually arose in the case which necessitated a decision determining whether the failure to record or list for taxation a reservation or an exception by the grantor of mineral interests resulted in the reservation or exception becoming void. Therefore, the question before us in the instant case was not settled or determined by the decision in Johnson v. Johnson, supra. In justice to the trial court, however, it must...