Walker v. Hoffman

• Decision Date: 16 February 1965
• Docket Number: No. 40422,40422
• Citation: 405 P.2d 57
• Parties: May M. WALKER, Elise P. Chapman, and Earl Q. Gray and John M. Poindexter, Trustees under the Will of H. C. Potterf, Deceased, Plaintiffs in Error, v. Estelle HOFFMAN, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 57

405 P.2d 57

1965 OK 36

May M. WALKER, Elise P. Chapman, and Earl Q. Gray and John M. Poindexter, Trustees under the Will of H. C Potterf, Deceased, Plaintiffs in Error, v. Estelle HOFFMAN, Defendant in Error.

No. 40422.

Supreme Court of Oklahoma.

Feb. 16, 1965.

As Amended July 20, 1965.

Rehearing Denied July 20, 1965.

Syllabus by the Court

Where an applicant for a county treasurer's certificate tax deed fails to give notice of his application to the owner of a severed mineral interest, and thereafter goes into possession of the land under his recorded treasurer's deed, but engages in no mining operations upon the land, such as drilling for and producing oil, gas, or other minerals, so as to constitute implied or constructive notice of an adverse claim to the minerals, the owner of the severed minerals will not, because of the occupancy of the surface for five years be precluded by 12 O.S.1961, Sec. 93, subparagraphs 3 and 6, from attacking the validity of the treasurer's deed. Gooding v. Edwards, Okl., 290 P.2d 408, explained, and overruled.

Appeal from the District Court of Johnston County; W. J. Monroe, Judge.

Action by plaintiff, Estelle Hoffman, for a judgment quieting in her a fee simple title to a described parcel of land, in which the defendants, Walker, et al., filed cross petitions asking that title to an undivided one-half interest in the minerals be quieted in them. From judgment for plaintiff, as prayed, defendants appeal. Reversed and remanded with directions.

John M. Poindexter, Earl Q. Gray, Ardmore, Max M. Fagin, Oklahoma City, for plaintiffs in error.

Miller & Peters, Shawnee, for defendant in error.

JACKSON, Vice Chief Justice:

The plaintiff in the trial court, Estelle Hoffman, brought this action to quiet her title to approximately eighty acres of land in Johnston County, Oklahoma. Her title to said property is deraigned from and based upon a County Treasurer's Certificate Deed issued and recorded in 1931, plus constant and continuous possession of said property from the execution and recording of the deed by the plaintiff and her predecessor.

The defendants in the trial court, Walker, Chapman, and Gray and Poindexter, as trustees, claim an undivided one-half interest in the oil, gas and mineral rights, which interest was severed by the reservation in a deed executed in 1920, at which time no taxes were allegedly unpaid. In cross-petitions, they prayed that their title to one-half of the minerals be quieted as against plaintiff's certificate deed.

The parties stipulated that plaintiff's predecessor obtained a Treasurer's Deed to the property in question in 1931, and took immediate possession of the property; and that her predecessor and the plaintiff have held continuous and open possession of the property since said date. It was further stipulated, however, that neither the plaintiff nor her predecessor (the certificate deed purchaser) ever engaged in any mining, drilling or other operation for the production of oil, gas or any other minerals.

It was further stipulated that no notice of the application for the certificate deed was issued to the owners of the severed one-half interest in the minerals, or to any person or heir having any interest in the severed minerals.

The trial court held in favor of plaintiff, quieting her title, and denied relief to defendants upon their cross-petitions. Defendants appeal.

Plaintiff recognizes that 68 O.S.1961, § 451 (O.S.1931, Sec. 12759), requires the applicant for a Treasurer's Certificate Deed to cause written notice of such application to be served upon the 'owner' of the land if within the state, and if not, by publication; and is familiar with the first paragraph of the syllabus in Martin v. Atkinson, Warren & Henley Co., 195 Okl. 19, 154 P.2d 945, wherein we held:

'The owner of 'all the oil and gas, and oil and gas rights and other minerals' in and under land is the owner of an interest in the land on whom notice of an intention to demand a tax deed must be served, as required by 68 O.S.1941, [Sec.] § 451, before his rights can be extinguished by a certificate tax deed.'

Plaintiff claims a 'virgin title in fee simple' (68 O.S.1961, §§ 451, 452) based upon the Treasurer's Deed and especially the five year statute of limitations, 12 O.S.1961, § 93(3) and (6), as amended in 1949, and our decisions reported in Jenkins v. Frederick, 208 Okl. 583, 257 P.2d 1058; Colonial Royalties Co. v. Stitler, Okl., 298 P.2d 1060; Williams v. Bailey, Okl., 268 P.2d 868; and Gooding v. Edwards, Okl., 290 P.2d 408.

12 O.S.1961, § 93(3) and (6), as amended in 1949, provides as follows:

'Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter;

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'(3) An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed.

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'(6) Numbered paragraphs, 1, 2, and 3, shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of one (1) year from and after its effective date.'

In Williams v. Bailey, supra, we held in the court's syllabus, as follows:

'When land has been sold for taxes and the tax deed purchaser seeks to rely on the statute 12 O.S.1951, § 93 to create a title by prescription or to bar an effort of the owner at time of tax sale to show the tax sale was void, such purchaser must show recordation of tax deed and occupancy of the premises, both for the period of five years provided by such statute.' (Emphasis supplied).

In the body of the opinion the significance and necessity of 'possession' was discussed at considerable length. See also in this connection Stark v. Akard, Okl., 313 P.2d 790; Kapp v. Vahlberg, Okl., 299 P.2d 159; Sarkeys v. Payte, Okl., 274 P.2d 539; Stewart v. Seigle, Okl., 274 P.2d 395; Sarkeys v. Scott, Okl., 269 P.2d 779; and Woods v. Phillips Petroleum Co., 207 Okl. 490, 251 P.2d 505.

In Jenkins v. Frederick, supra, the plaintiff therein, Jenkins, claimed ownership of the property by virtue of a void resale tax deed plus possession of the property for more than five years before filing suit to quiet his title. The defendant, Frederick, claimed one-half of the minerals by virtue of a mineral deed executed prior to the resale deed, and asserted that an adverse possession statute of limitations (12 O.S.1961, § 93, supra) was not available to the plaintiff for the reason that plaintiff had never been in possession of defendant's mineral interest and that no statute of limitations operates in favor of one not in possession, citing Deruy v. Noah, 199 Okl. 230, 185 P.2d 189, and Noble v. Kahn, 206 Okl. 13, 240 P.2d 757, 35 A.L.R.2d 119. See also Strickland v. Reeburgh, Okl., 362 P.2d 1110. We rejected Frederick's argument and observed that Jenkins' possession under his resale deed, although he produced no minerals from the land subsequent to acquiring possession under his resale deed, was possession of the entire property including the nonproducing minerals. This conclusion was reached because a 'resale tax deed vests in the grantee an absolute and perfect title in fee simple to said real estate as against the owners of the minerals.' 68 O.S.1961, § 432f, Sears v. Randolph, 195 Okl. 200, 156 P.2d 595.

In the Jenkins case, it was contended by the defendant, Frederick, that if she was to be deprived of her rights to the severed minerals that the statute, 12 O.S.1961, § 93, supra, in unconstitutional. We think this question, in the instant case, is important and reserve it for subsequent consideration herein.

In Gooding v. Edwards, Okl., 290 P.2d 408, supra, the plaintiff, Edwards, brought suit to quiet her title to an undivided 1/32nd interest in the severed minerals under a quarter section of land. The defendant, Gooding, claimed a fee simple title to ten acres of land within the quarter section by virtue of a 'tax deed' executed subsequent to the severance of plaintiff's 1/32nd interest in the minerals. The evidence showed that defendant, Gooding, had been in possession of the land, by a farm tenant, for more than five years after receiving his tax deed and more than five years before plaintiff brought the action. The trial court held that defendant's tax deed was void and quieted plaintiff's title. We cited our decisions in Woods v. Phillips Pet. Co., 207 Okl. 490, 251 P.2d 505, supra; Jenkins v. Frederick, 208 Okl. 583, 257 P.2d 1058, supra; McCasland v. Parrish, Okl., 266 P.2d 450; Fletcher v. Twyford, Okl., 267 P.2d 554; Boone v. Claxton, Okl., 269 P.2d 980; and Williams v. Bailey, 268 P.2d 868, supra; reversed the trial court, and held that defendant was vested with a prescriptive title to the ten acres in controversy including plaintiff's 1/32nd interest in the minerals. All of the cited cases, with the exception of Fletcher v. Twyford, involved resale deeds.

In Fletcher v. Twyford, the alleged owners of an undivided one-half interest in the minerals under a forty acre tract of land brought suit to quiet their title against the alleged owners of the remainder of the fee and a defendant Fletcher who claimed title by virtue of a certificate tax deed. The owners of the remainder of the fee filed their answer and cross petition and sought a decree quieting their title to the entire fee, except for the title of plaintiffs. The trial court determined that the tax deed was not admissible in evidence for the reason the holder thereof did not prove that he had served notice of the application for the tax deed and rendered judgment for ...