Magnolia Petroleum Co. v. Moyle , 162 Kan. 133 ( 1946 )

The opinion of the court was delivered by

Thiele, J.:

After the original submission of this cause an opinion was filed January 26,1946, which appears in 160 Kan. 722,165 P. 2d 419. A rehearing was granted, the appeal has been reargued and upon consideration the court has concluded that a correct decision was not made in its first opinion. To avoid references to the first opinion for a statement of the facts, tbe case will be restated.

The action out of which the appeal arose was one to quiet title to real estate, under circumstances more fully set out later. The trial court rendered judgment in favor of the plaintiff and the defendant appeals. The parties will be referred to hereafter as Magnolia and Moyle.

In its petition filed in March, 1944, Magnolia alleged it was a corporation under the laws of Texas and qualified to transact business in Kansas; that it was the owner in fee simple of an undivided one-half interest in and to all of the oil, gas and other minerals in and under and that may be produced from the northwest quarter of section 23, township 31, range 38 west, in Stevens county, Kansas, and that Moyle claimed an adverse interest, but that Magnolia claimed he had no interest and should have its title quieted against him, and it prayed for judgment accordingly.

Moyle filed his answer and cross petition. Insofar as it is necessary to notice, the answer contained a qualified general denial and an allegation that Moyle was the owner and in possession of the above described real estate under a sheriff’s deed recorded October 15, 1942, and under the proceedings leading up to its execution and delivery, in the action of Board of County Commissioners of Stevens County v. Andrews et al., and hereafter referred to as the tax foreclosure action, and that Magnolia’s rights were adjudicated in that action and such adjudication had become final. Under his cross petition Moyle sought to quiet his title against the Magnolia.

In its reply the Magnolia pleaded that it had acquired title to the mineral rights by a deed from J. C. Gerrond, dated November 2, 1927, and recorded January 2, 1928, in Book F Misc., at page 370, and that since the filing of the deed Stevens county duly assessed and levied taxes on its mineral interest and it had paid the taxes, and that since October 31,1927, it had been in peaceable possession. A copy of the deed was attached as an exhibit and is referred to later. It admitted the proceedings under which the sheriff’s deed to Moyle was issued but denied that-the deed affected its title. It also pleaded that it was duly authorized to do business in Kansas on October 31, 1927, and at all times since and had appointed a registered agent on whom process might be served; that no process had ■been served upon it in the tax foreclosure suit; that no process or service of summons had been made upon it except by publication although actual service of summons could at all times have been obtained upon it and that it had no knowledge of the tax foreclosure proceedings or the issuance of the sheriffs deed until during the month of October, 1943. Magnolia’s answer to Moyle’s cross petition need not be noticed.

The deed from J. C. Gerrond to Magnolia conveyed—

“An undivided one-hglj interest in all minerals, including oil, gas, coal, and all other minerals, whether solid, fluid, or volatile, lying in or under or that may be produced or reduced to its possession and saved upon the following described real estate situated in the county of Stevens in the state of Kansas, to-wit:

“The North One-half of Section 23, Township 31 South, Range 38 West.

“Together with the perpetual and irrevocable right, privilege and easement of ingress and egress in, upon, and from said lands at all times for the purpose of mining, drilling, and exploring said land for oil, gas and all other minerals and removing the same therefrom together with the use of such amount of the surface of said land as is necessaiy or useful to produce, save, store, refine, mill and remove said minerals, including salt water, or any of them if found, and to extract or manufacture any produce therefrom and to conduct all operations and erect or use thereon all such buildings, derricks, tanks, structures, machinery, and equipment as may be necessary or proper for any or all such purposes, and to have the right of way on said land for, and the right to lay and operate thereon pipelines, erect and operate telephone and telegraph lines for the use of grantee in the business conducted thereon, to repair and remove from said lands any of grantee’s properties thereon, including the right to draw and remove casing therefrom, and to have and to use, free of charge, water from said land, except water from grantor’s well, for operations thereon, and to have and enjoy all other rights, easements and privileges necessary, incident to, or convenient for the economical operation of said land for the production of said mineral or minerals, or as are reasonably required for conducting and carrying on all things herein granted, provided, however, that grantor upon payment to grantee of one-half of all expenses and costs of producing such minerals, shall thereupon be entitled to one-half (%) of the net profits arising from the sale and disposition of said minerals in their natural state and as produced from and sold on said realty.”

It was further provided in the deed that:

“It is hereby expressly declared that it is intended by this, instrument to convey the fee simple title to an undivided one-half of all the minerals and mineral rights, including oil, gas, and all other minerals, whether solid, fluid, or volatile in, within, upon, or underlying or that may be produced from the above described lands, and all the grantor’s rights to operate for said minerals, and deal or contract with regard thereto, including the leasing thereof as fully to all intents and purposes as if the said grantee were the absolute owner of the entire title and estate in said lands and without any obligation whatsoever on the part of the grantee, either express or implied at any time to drill, mine, develop or otherwise explore for any oil, gas, or other minerals in or upon said lands, but in the event grantee, its successors or assigns, develops said minerals and produces oil, gas or other minerals from said described lands, then grantor shall have the right to repay grantee their proportionate share of all expenses for developing and saving said minerals and receive their proportionate share of the net profits arising from the sale of said minerals in their natural state as produced from and sold on said realty. In the event grantee o executes a mineral lease upon said premises, which it is hereunto duly authorized so to do, grantor shall be entitled to a one-half 'undivided interest in all of the royalties, rentals and bonuses provided for in such lease.”

The parties entered into a stipulation of facts covering the status of the parties, the execution and filing of the mineral deed; that the mineral interest of Magnolia was assessed for taxation and that it had paid the taxes thereon; that Moyle was the grantee named in a sheriff’s deed, a copy of which was made part of the stipulation, which deed was issued pursuant to the tax foreclosure proceeding, a copy of the proceedings being made a part of the stipulation; that in that action no service was attempted upon the Magnolia other than by publication. It was further stipulated that about May 25, 1937, the then owners in fee simple of the above described real estate executed and delivered to Magnolia an oil and gas lease on the described real estate and 'that there ha,d been no default by ■ Magnolia in the payment of rentals in lieu of drilling or otherwise at any time prior to the execution and delivery of the sheriff’s deed above noted, and further that the land had not been explored for oil or gas.

It is not necessary that we detail the various proceedings in the tax foreclosure action for there is no contention that the pleadings in and of themselves are faulty. We do npte, however, that these proceedings disclose that a sheriff’s sale of the real estate involved to Moyle, was confirmed on October 7, 1942. In disposing of contentions hereafter considered, we shall make such reference to the tax foreclosure action as is necessary.

The quiet-title action was submitted to the trial couj;t upon the stipulated facts, and it rendered judgment quieting Magnolia’s title to an undivided one-half interest in all of the oil, coal, gas and other minerals lying in and under the above described real estate, “together with all other propérty and contract rights vested in plaintiff (Magnolia) by reason of the mineral deed recorded in the office of the Register of Deeds of Stevens County, Kansas, in Book F, Misc., at page 370, . . .”

From the above judgment Moyle duly appealed to this court, upon consideration of which this court rendered its decision mentioned above.

It may here be noted that when Magnolia filed its motion for a rehearing additional briefs were filed, and amici curiae were also permitted to file briefs. From these briefs, and from the argument on rehearing, it appears there is no dispute as to the regularity of the tax foreclosure proceedings, except as hereafter noted, and that unless the proceedings and the judgment rendered thereunder may be attacked collaterally by Magnolia, it is not entitled to recover. Two main questions are presented: 1. Was Magnolia properly served with summons in the tax foreclosure action? 2. Did the district court have jurisdiction of that action insofar as Magnolia was concerned? These will be considered in order. In the discussion of both questions, it is noted that the tax foreclosure action was commenced April 8, 1942, and the sheriff’s sale held under it was confirmed October 7, 1942. References hereafter made are to the tax foreclosure statutes and other statutes then in effect.

1. Was Magnolia properly served with summons in the tax foreclosure action? If the service was fatally defective the judgment against it was open to collateral attack. The petition in that action alleged that with respect to the real estate presently involved, the company was an owner, supposed owner or a party having or claiming to have some interest therein or thereto. An affidavit for service by publication was made by the county attorney. No complaint is made as to its form or sufficiency and we note only that it was stated it was not known whether Magnolia Petroleum Company was legally existing or dissolved, and if not in existence, whether there were any officers or successors, trustees or assigns, etc., and that with due diligence plaintiff was unable to procure actual service of summons within the state of Kansas and desired to obtain service by publication of summons. No complaint is made of the publication of summons which followed, nor of proof thereof. The journal entry of judgment stated that the court had carefully examined the publication notice and proof thereof and approved them.

On the original submission the question of service of summons was not. stressed and received only brief attention in our first opinion.

The argument now presented that Magnolia was not properly served runs thus: Magnolia is a foreign corporation authorized to do business in Kansas and actual service of summons could have been had upon it. The corporation was doing business in Kansas and under G. S. 1935, 17-501, was required to file an irrevocable consent 'that service of summons for it might be served upon the secretary of state; that under G. S. 1941 Supp., ch. 17, art. 44, it was required to designate a registered agent; that notwithstanding any allegation in the affidavit for service by publication that it was a foreign corporation, the trial court judicially knew that it was legally and factually possible to procure actual service within the state and, therefore, that service of summons by publication was not permissible under the civil code (G. S. 1935, 60-2525 et seq.). The record does not sustain the premise for the argument. The tax foreclosure statute provided for service, either personally or by publication, as provided in other cases under the civil code. (See G. S. 1941 Supp., 79-2801.) The civil code provides for publication summons, where the “plaintiff upon diligent inquiry is unable to ascertain whether a corporation, domestic or foreign named as defendant, continues to have legal existence or not . . .” (G. S. 1935, 60-2525.) (Emphasis supplied.)

The affidavit for service by publication was in accordance with the above provision. There was no allegation Magnolia was or was not a foreign or domestic corporation. It makes no difference that in the quiet-title action it was agreed that Magnolia was a foreign corporation and authorized to do business in Kansas — that situation was not disclosed by the record in the tax foreclosure case.

No appeal was taken from the judgment in the tax foreclosure action, nor has that judgment, including approval of the service by publication, ever been directly attacked. Even though some statements of the affidavit were false, the service cannot be collaterally attacked. (See Davis v. Land Co., 76 Kan. 27, 90 Pac. 766.) The basis for Magnolia’s contention not being present in the situation now before us, we need not decide whether it is any longer possible to obtain service by publication on a foreign corporation authorized to do business in this state. Previous decisions of this court have ■ held, however, that statutes providing for service against foreign corporations by serving some designated person within the state are cumulative and supplementary to other methods of service and are not exclusive. See Betterment Co. v. Reeves, 73 Kan. 107, syl. ¶ 3, 84 Pac. 560; Jones v. Insurance Co., 83 Kan. 44, syl. ¶ 1, 109 Pac. 1077; Nowak v. Insurance Co., 103 Kan. 778, 176 Pac. 654. Notice, also, the language used in G. S. 1941 Supp., 60-2522.

2. Did the district court have jurisdiction of the action insofar as Magnolia was concerned?

The general contention of Moyle is that in the tax foreclosure action the trial court had jurisdiction of the subject matter of the action and of the parties; that the petition alleged the involved real estate had been bid in at a tax sale duly held as provided by law; that the court in due course had rendered a judgment; that by the judgment the rights of Magnolia in the real estate were adjudicated; that no appeal was taken from the judgment nor was there any timely attack thereon; that that judgment may not be attacked collaterally, and therefore the trial court erred in permitting a collateral attack and in rendering its judgment in the quiet title action. Magnolia contends that the district court, in a tax foreclosure action, although generally a court of general jurisdiction, is for the purposes of such an action a court of limited jurisdiction,, and that it is a condition that tax on its property be actually due and unpaid before the district court acquires any jurisdiction over the real estate sought to be sold. As we understand, Magnolia does not dispute the general principles relied on by the appellant and we shall not dwell thereon.

It may be observed first that it has been held repeatedly by this court that the whole matter of taxation, including the levy and collection of taxes, is statutory and does not exist apart from statute. (See, e. g., Equitable Life Assurance Society v. Hobbs, 155 Kan. 534, 127 P. 2d 477; and Sherman County Comm’rs v. Alden, 158 Kan. 487, 492, 148 P. 2d 509, and the cases cited therein.) The present case presents no situation where that principle should not be adhered to, and we therefore examine the tax foreclosure statute as it existed in 1942 when the foreclosure in question was had, and the -decisions of this court arising under former but like tax foreclosure statutes. Under such circumstances, it is not necessary that we discuss separately whether the jurisdiction of the district court - is limited rather than general.

. The opening sentence of the statute under which the tax foreclosure action was brought (G. S. 1941 Supp., 79-2801) reads:

“That in all cases in which real estate has been or shall be sold and bid in by the county at any delinquent tax sale and shall remain or shall have remained unredeemed for the period of three years . . . the board of county commissioners shall order the county attornejr ... to institute an action . . .”

Although the situation disclosed by the pleadings in the tax foreclosure action, and the agreed facts at the trial of the quiet-title action have been heretofore set forth, we here direct attention to the fact that the mineral deed to Magnolia was duly recorded (see G. S. 1935, 79-420), that its mineral interest was listed for taxation and that it paid all of the taxes assessed against that interest. The only conclusion that can be reached is that no tax ever having been in default, no tax lien could exist, the mineral interest could not have been lawfully sold and bid in by the county at any delinquent tax sale, and therefore the statutory condition to bringing the tax foreclosure action did not exist.

We are not concerned with differences as-to specific procedures of the two acts, but the legislature by Laws 1877, ch. 39, provided for the sale of lands sold and bid in by the county for unpaid taxes. ■The opening sentence of that act read:

“That in all cases in which,real estate has been or shall be sold and bid in by any city or county at any delinquent tax sale, and shall remain or shall have remained unredeemed and the certificate of sale untransferred for the period of three years after such sale, it shall be the duty of the attorney of such city or county to file a petition ...”

No comment as to similarity of language is necessary.

Magnolia directs our attention to the four following cases:

In Doty v. Bassett, 44 Kan. 754, 26 Pac. 51, it appears that certain taxes were assessed against land in 1871 while it was still government land, and that it was sold to the county for the tax unlawfully assessed against it. The grantors of Doty acquired title and paid the taxes for 1872 and subsequent years. In 1877, an action was brought under the provisions of the statute last above mentioned and a judgment was subsequently rendered. The land was bid in by the county and yms sold to parties who conveyed to Bassett. Doty brought his action to quiet his title. From a judgment for Bassett, Doty appealed. This court held the proceeding was one in rem; that a tax, when duly levied, became a lien which might be enforced as the legislature prescribed; that the real estate was government or public land and not subject to assessment or taxation in 1871; that as the land was not taxable in 1871 and had not been sold or bid in by the county for any delinquent taxes, the statute had no application and the district court had no jurisdiction to condemn or sell the land, and that where lands are not taxable there are no taxes due and unpaid. It was further stated the alleged tax of 1871 was not merely voidable, but absolutely void, and there being no delinquent tax, the district court had no jurisdiction.

In Spicer v. Wheeler, 53 Kan. 424, 36 Pac. 736, which arose out of a sale held under the statute of 1877, the rule of the Doty case, supra, is referred to but the decisipn of the court is not based on that rule, but on a rule first made in the Doty case, and later withdrawn. The case was decided on the question of the sufficiency of the pleadings in the tax foreclosure action, and is not helpful on the question now before us.

In Wyandotte County v. Kerr, 112 Kan. 463, 211 Pac. 128, the question was the sufficiency of pleading to open a judgment rendered on publication service in a tax foreclosure action. We are not now interested in that particular question, but in that case it was said:

“Probably the only defenses that can be set up in an action to foreclose tax liens held by a county are that the property was not subject to taxation; that the taxes, or some part of them, were illegal; or that the taxes had been paid.” (1. c. 464.)

In Montgomery County v. Wilmot, 114 Kan. 819,221 Pac. 276, the court considered an appeal from an order setting aside a judgment and a sheriff’s deed based thereon in a tax foreclosure suit. In that case the action was commenced and service by publication was had upon Arra Ballard, who owned real estate on which the tax had not been paid. A judgment was rendered and subsequently the property was sold and a sheriff’s deed issued and recorded. After the judgment, but before the sale, the mother' of Arra Ballard paid the county treasurer a certain amount and received a redemption but we need not review that. In about fifteen months, and within time under the then applicable statute, Arra Ballard, a minor, by her next friend, filed her application in the original action to open the judgment. The attack being in time the court had no occasion to discuss the specific question of whether the trial court was without jurisdiction, but in affirming a judgment of the trial court allowing relief, it was said:

“Perhaps it is not stating it too broadly to say that one of the fundamental prerequisites to a valid sale of real property for taxes is that there is a tax due and unpaid at the time of the sale. Not only is this prerequisite essential to fair dealing between a sovereign and its citizens, but it is either specifically or necessarily by implication embodied in every provision for the sale of real property for taxes. In this case, whether we treat the evidence as showing a substantial compliance with the statute relating to redemption in a suit to foreclose a tax lien, which we do, or a proper redemption by a minor, which seems clear, though this question has not been argued, the fact remains that the sovereign had its tax in full twenty days before it attempted to sell the property. At the time of the sale the sovereign had no charge or claim against the property for taxes and therefore had nothing to sell. Though it went through the form of a sale it sold nothing and hence conveyed nothing.” (1. c. 824.)

In addition to what was said in the above cases, attention is directed to cases holding that compliance with tax statutes is essential to the acquisition of jurisdiction. See Morris County Comm’rs v. Cunningham, 153 Kan. 340, 110 P. 2d 783; Bryner v. Fernetti, 141 Kan. 446, 41 P. 2d 712; Madigan v. Smith, 137 Kan. 269, 20 P. 2d 825; Crawford, County Comm’rs v. Radley, 134 Kan. 704, 8 P. 2d 386; and see, also, 61 C. J. 1120, 1121, and 51 Am. Jur. 896, as bearing on the question, last discussed.

We conclude that the tax on Magnolia’s mineral interest having been paid in due time, it could not have been sold for delinquent taxes and bid in by the county, and therefore in any tax foreclosure action that may have been filed, the court did not and could not acquire any jurisdiction of the particular real estate, and that any judgment respecting that real estate, including an order of sale, approval of sale or issuance of a sheriff’s deed was void.

Such a holding however does not warrant an unqualified affirmance of the trial court’s judgment in the quiet-title action. It not only quieted title of Magnolia to its mineral interest, but as shown above, included certain contract rights included in the mineral deed to Magnolia. As is shown more specifically by the quotation heretofore made, Magnolia acquired the undivided one-half interest in the minerals and, under the provisions of G. S. 1935, 79-420, that interest so conveyed was assessed for taxation, and it is that tax which Magnolia paid. For present purposes we may assume that a right of ingress and egress was so much an appurtenant to the estate conveyed that it may be said to be part thereof, and therefore included in the assessment for taxation of the real estate. But the right to use the surface for storage, refining and milling of minerals found, to manufacture any produce therefrom, to conduct operations, erect structures, lay pipe lines, and other things provided, were rights creating easements on the real estate not conveyed to Magnolia, and that they were not taxed is too clear for argument. It may be difficult to classify that portion of the mineral deed giving Magnolia the right to ' operate for minerals and deal or contract with respect thereto, including the leasing thereof as fully to all intents and purposes as if Magnolia were the absolute owner of the entire title and estate, but it cannot be said it did not create some interest of Magnolia in the real estate in addition to the undivided one-half of the minerals conveyed. None of these additional rights were separately returned for taxation and the tax paid by Magnolia. On the contrary, the tax assessed on the real estate, as distinguished from the tax on the mineral interest, included not only the iand itself but the tenements and hereditaments and all rights thereto and interest therein, legal as well’as equitable- (G. S. 1935, 77-201, Eighth). It is conceded that the taxes assessed against the real estate, excepting the . mineral interest, were not paid; that they were adjudged delinquent and unpaid; that the real estate was ordered sold, was sold, the sale confirmed and a sheriff’s deed issued to the purchaser, the appellant herein. The proceedings in the tax foreclosure action, except as to Magnolia’s mineral interest, are not attacked in any way.

It is not necessary that we treat the well-established rule that a judgment rendered in one action may not be collaterally attacked in another action, except on jurisdictional grounds. Such grounds do not exist as to the matter just discussed. The judgment of the trial court quieting Magnolia's title in "all other property and contract rights vested in plaintiff (Magnolia) by reason of the mineral deed . . .” was erroneous.

3. We note that in his brief Moyle makes some contention that . Magnolia is barred by reason of the statute of limitations contained in the tax foreclosure statute (G. S. 1941 Supp., 79-2804b). In his answer and cross petition Moyle did not plead any statute of limitations. The matter was not an iksue in the trial court. Although if it had been, no error was specified on any claimed ruling and the matter is not before us for consideration.

4. The judgment of the trial court .quieting Magnolia’s title to its mineral interest in the involved real estate is affirmed and its judgment quieting its title to the other property and contract rights by reason of the mineral deed recorded in Book F, Misc., page 370, in ' the office of the register of deeds of Stevens county, is reversed.