Volker v. Crumpacker

• Decision Date: 08 November 1941
• Docket Number: 35288.
• Citation: 154 Kan. 403,118 P.2d 540
• Parties: VOLKER v. CRUMPACKER et al.
• Court: Kansas Supreme Court

118 P.2d 540

154 Kan. 403

VOLKER v. CRUMPACKER et al.

No. 35288.

Supreme Court of Kansas

November 8, 1941

Syllabus by the Court.

The statute providing that where fee to realty is in any person and right or title to any minerals therein is in another right to such minerals shall be valued and listed separately from the fee and the land itself and right to minerals should be separately taxed to the owners thereof respectively and that when such leases are not recorded within 90 days after execution, they shall become void if not listed for taxation does not apply unless the instrument conveys some right or title to the minerals in place, or, in other words, unless it is a conveyance of realty.

A mineral deed deposited in escrow and to be delivered only on performance of a condition stated in the escrow agreement passed no title to minerals in place prior to the fulfillment of the condition.

Where instrument purporting to convey title to minerals became void under statute because not recorded or listed for taxation within 90 days after its execution, subsequent delivery did not revive the instrument as of original date of its execution. Gen.St. 1935, 79-420.

Where mineral deed which was deposited under escrow agreement became void because not recorded or listed for taxation within 90 days after execution as required by statute, but thereafter grantor endorsed on agreement that escrow agent should deliver deed to the grantee, the grantor's action amounted to the execution and delivery of a new instrument which was not void under the statute. Gen.St.1935, 79-420.

1. A mineral deed deposited in escrow, to be delivered only upon performance of a condition stated in the escrow agreement passes no title to minerals in place prior to fulfillment of the condition.

2. If an instrument purporting to convey right or title to minerals in place has become void under the provisions of G.S.1935, 79-420, because not recorded or listed for taxation within ninety days after its execution, its subsequent delivery does not revive it as of the original date of its execution.

3. Where the grantor in an instrument which had become void for reasons stated in syllabus 2 authorizes a new delivery and such delivery is made to the grantee, his action in doing so may amount to the execution and delivery of a new instrument.

4. The record is examined in an action to quiet title as against an instrument denominated "Sale of Oil and Gas Royalty" on the ground that it had become void under the provisions of G.S.1935, 79-420, and it is held that under the principles of law stated above in this syllabus the court erred in giving judgment for the plaintiff.

Appeal from District Court, Stafford County; Robert Garvin, Judge.

Action by Maggie Volker against Jay Crumpacker to quiet title to realty. From an adverse judgment, the defendants appeal.

Judgment reversed with directions to enter judgment for defendants.

James A. Cassler and L. H. Ruppenthal, both of McPherson, for appellants.

D. H. Donnelly, of Stafford, for appellee.

HOCH Justice.

This was an action to quiet title to real estate as against a certain instrument denominated "Sale of Oil and Gas Royalty." Plaintiff prevailed and defendant appeals.

The question presented is whether the instrument is void under the provisions of G. S.1935, 79-420, because not recorded within ninety days after execution or listed for taxation.

The instrument, signed and acknowledged on December 3, 1937, by the appellee, Maggie Volker, purported to convey certain title or interest in certain land in Stafford county to the grantee, C. E. Knight. It was deposited, on the same day, under an escrow agreement with the firm of Hartnett and Evans as escrow agents. The condition of delivery to the grantee was that a test well be commenced on the land and a depth of 500 feet reached "by the 1st of February, 1938" and if such condition were not met the instrument was to be returned to Maggie Volker and all rights of the grantee thereunder would terminate. The well was not drilled to a depth of 500 feet by February 1, 1938. However, on April 5, 1938, appellee called at the office of the escrow agent and in the presence of Knight endorsed on the escrow agreement: "O. K. to deliver to C. E. Knight said royalty deed. Maggie Volker. April 5, 1938." The instrument was thereupon delivered to Knight and was duly recorded on April 6, 1938. The instrument had not at that time been listed for taxation. On April 12, 1938, Knight assigned the instrument to appellants Crumpacker and Barngrover who subsequently paid the taxes assessed thereon for the year 1939.

On a date not disclosed by the record Maggie Volker brought this action to quiet title and the case was heard by the court without a jury on October 1, 1940. On May 6, 1941, findings of fact and conclusions of law were made and judgment entered for the plaintiff. While holding that the instrument was void under the statute, the trial court held, with evident reluctance, that Maggie Volker was not estopped from the relief sought, saying: "The fact that Maggie Volker on or about the 5th day of April, 1938, appeared personally before Hartnett & Evans and in writing authorized a delivery of the instrument in question to C. E. Knight, the grantee therein, and thereby created the very encumbrance to the title which she now seeks to have the court quiet, has caused the court to look somewhat with disfavor upon her action."

The court also held that estoppel was not available to the defendants because not pleaded...