Ohio Oil Co. v. Wyoming Agency

• Decision Date: 15 April 1947
• Docket Number: 2339
• Citation: 63 Wyo. 187,179 P.2d 773
• Parties: THE OHIO OIL COMPANY, Plaintiff and Respondent, v. THE WYOMING AGENCY, a Corporation, L. S. Strahan, Individually and as Trustee, et al., Defendants, L. S. STRAHAN, Defendant and Appellant
• Court: Wyoming Supreme Court

179 P.2d 773

63 Wyo. 187

THE OHIO OIL COMPANY, Plaintiff and Respondent, v. THE WYOMING AGENCY, a Corporation, L. S. Strahan, Individually and as Trustee, et al., Defendants, L. S. STRAHAN, Defendant and Appellant

No. 2339

Supreme Court of Wyoming

April 15, 1947

APPEAL from District Court, Big Horn County; H. R. CHRISTMAS, Judge.

Action to quiet title by The Ohio Oil Company against The Wyoming Agency and L. S. Strahan, individually and as trustee, and another. From a judgment for plaintiff, L. S. Strahan appeals.

Judgment Affirmed.

For the Defendant and Appellant, the cause was submitted upon the brief of L. S. Strahan of Lovell, Wyoming, appearing, pro se.

POINTS OF COUNSEL FOR APPELLANT

A deed must have one witness to be legal. It is a well settled principle of law that title to real property must be acquired agreeably to the law of the place where situated. Conradt vs. Lepper, 13 Wyo. 473; Frank v. Hicks, 4 Wyo 502; Nash v. Cowhick, 9 Wyo. 93.

A deed lacking sufficient witnesses may be validated by curative statute, subject to intervening vested rights (88 Am. Dec 95) but not so as to affect persons who may subsequently have acquired title to the property. 80 Am. Dec. 441; 9 Wyo. 93.

One who is a party to a deed is generally held to be incompetent as an attesting witness thereto. 8 R. C. L. 942 § 18; 87 A S. R. 536; 73 A. S. R. 779; 96 A. S. R. 663.

The trust deed in question was defectively executed and was not entitled to record. Although recorded the record was not constructive notice to any of its contents. It was not a legal instrument. It was not witnessed. Frank v Hicks, 4 Wyo. 502, 513.

A stockholder of a private pecuniary corporation has been held incompetent to act as an attesting witness to a deed of the corporation. Winstead Savings Bank v. Spencer, 26 Conn. 195; 26 C. J. S. 229, 318.

A grant in fee or of a freehold estate does not take effect as against a subsequent purchaser, even though a purchaser with notice (Nellis vs. Munson, 108 N.Y. 453, 15 N.E 739; Chamberlain vs. Spargur, 86 N.Y. 603), unless the grant is acknowledged, or unless its execution and delivery are attested by at least one witness (Real Property Law, 243, Consol. Laws Chapter 50). The grant of this easement was neither acknowledged or attested. The secretaries of the two corporations signed their names as part of the execution of the instrument, each for his own principal, and not to attest an execution already completed. Deffel vs. White L. R. 2 C. P. 144.

Land titles should not be thrown into confusion and uncertainty by a construction of the statutes that will have the effect to disturb the security of titles, unless such construction should be clearly required. Adams vs. Smith, 11 Wyo. 200.

A defendant who, by answer or cross bill, asserts his own title and seeks to have it quieted thereby gives the court jurisdiction of the whole controversy, although the plaintiff is not in possession. But it is otherwise where defendant sets up his own title and possession only by way of defense, and does not ask for affirmative relief. 51 C. J. 187.

The common law prevails in Wyoming where not set aside by statute. Secs. 26-101 and 89-4829 W. R. S. 1931. Johnson v. Union Pacific Coal Co. 76 P. 1089.

The authorities agree that a deed void only for matters dehors the instrument may constitute color of title, but are in conflict as to the effect of a deed void on its face. 2 C. J. S. 592.

A tax deed regular on its face is sufficient evidence of hostile intent upon which to base adverse possession, and constitutes color of title to the lands described therein, although it may be insufficient to convey title because of defects dehors the instrument. 2 C. J. S. 606.

Color of title and title by limitation may be based upon a deed executed pursuant to a void or voidable judgment or sale. 2 C. J. S. 603. The rule is well established that even where the title to the surface and title to the minerals have been separated, a sale of land for taxes may carry title to the minerals beneath the surface unless the surface and minerals are separately assessed. 61 C. J. 1301.

Where the surface of land is owned by one person and the oil in place by another, a sale for taxes in the name of the owner of the surface will pass also the oil owned by the other person, where his estate has not been charged on the tax books. Peterson v. Hall, 57 W.Va. 5-35, 50 S.E. 603.

To establish adverse possession of realty, claimant need not actually reside upon or have it inclosed with a fence, but it is sufficient if claimant is doing such acts thereon that indicate in an open, public and visible manner that he has exclusive control over the land, under a claim of right to such exclusive possession. Fessler v. Thompson (Okla.) 130 P. 2d. 513.

One may be in the possession of minerals, including oil and gas, independently of the surface, or when some one else claims such minerals by segregation from the surface by conveyance. 13 A. L. R. 380.

For the Plaintiff and Respondent, the cause was submitted upon the brief and also oral argument of W. H. Everett and M. L. Bishop, both of Casper, Wyoming.

POINTS OF COUNSEL FOR RESPONDENT

A new corporation created by consolidation or merger succeeds to all the rights, powers, and privileges of the original corporations, and is vested with title to their choses in action and other property or assets. 13 A. J. 1099.

Tested by the statutes that prescribe acknowledgment merely for the purpose of furnishing proof for record--that is, the usual form of legislation upon this subject--an unacknowledged instrument when executed by a person sui juris is not void in the sense that it is a nullity conferring no rights and not subject to confirmation or ratification. Statutes of this character have reference merely to the proof of execution; they do not affect the force of the instrument. Under these acts the acknowledgment of a deed executed by a person who is under no disability is not essential to the validity of the instrument; its execution and delivery will pass the title just as effectually without as with an acknowledgment. 1 R. C. L. p. 257.

Persons having actual knowledge of a deed or other instrument of conveyance may not acquire by a subsequent conveyance any title or interest superior to that of the former grantee. As to them the instrument is valid and effectual, as has been stated heretofore. The question here is whether a person who has inspected the books of public records and has read therein a copy of an unacknowledged instrument is in the same position as one who has knowledge of the instrument itself. While authorities to the contrary are not lacking, the sounder reasoning declares that one who actually reads the record of an instrument concerning property in which he is about to become interested will become charged thereby with notice of the existence of the instrument, which should put him on inquiry, notwithstanding the fact that the instrument in question may not have been entitled in strictness to be recorded. 1 R. C. L. 263.

When by appropriate conveyance the mineral estate in lands is severed from the surface, separate and distinct estates are thereby created which are held by separate and distinct titles, and each is a freehold estate of inheritance, subject to the laws of descent, devise, and conveyance. The owners of the two estates do not become tenants in common although, of course, the conveyance may be so worded as to constitute the purchasers of either estate such tenants. Possession of the surface ordinarily carries with it possession of all the underlying mineral. But this rule has no application where there has been a severance of the surface from the mineral estate. By severance, separate estates are created, and each estate is incapable of possession by mere occupancy of the other. The presumption that one having possession of the surface has also possession of the subsoil does not exist where the surface and subsoil right have been severed. 36 A. J. 307.

Minerals underlying a tract of land are not lost by failure to pay taxes thereon unless there is a separate assessment of taxes against them. Bodcaw Lumber Co. v. Goode, 160 Ark. 48, 29 A. L. R. 578, 254 S.W. 349.

A default judgment does not adjudicate matters not covered by the complaint, since it is an admission only of the material allegations. Such a judgment can include only the relief demanded in the complaint and is not an adjudication of other matters that might have been litigated had an answer been filed. Rights or interests acquired pendente lite are not merged in or concluded by a consent judgment.

The defendant in a real action or an action to recover possession of or to determine conflicting claims to real property may, instead of permitting judgment to be entered against him by default, file a disclaimer. Such disclaimer does not operate as a conveyance from him to the plaintiff so as to transfer his title to the latter and to enable him thereupon to recover of another defendant upon the title of the defendant who has disclaimed. 2 Freeman on Judgments, Par. 664, p. 1398.

The rule that plaintiff must recover on the strength of his own title, is inapplicable where the parties trace their respective titles to a common source. In such case plaintiff need not show a title good, as against the whole world, but only as against defendant, and the one who has the superior title or equity must prevail. 51 C. J. 174.

Ordinarily in a land case, the plaintiff must make out a complete title and must recover upon the strength of that title, and not upon the weakness of the title of his adversary, and there is no onus whatever upon the defendant. He may fold his arms, and await the complete title of the plaintiff...