In the first part of this series, we reviewed a 2010 Licking County case, which held that Ohio’s Marketable Title Act (MTA) extinguished an adjoining landowner’s claim against former railroad property. This article discusses how the MTA was used to reconcile competing claims to a severed mineral interest before Ohio’s Dormant Minerals Act was passed.
The Marketable Title Act and severed minerals: coal excepted, but not oil and gas
When the MTA was first enacted in 1961, it expressly excepted all mineral interests . But in 1973 the Ohio Legislature amended the mineral interest exception so that only coal was excepted from the operation of the MTA. That amendment set the stage for Heifner v. Bradford, 5th Dist. Muskingum No. CA-81-10, 1982 Ohio App. LEXIS 14859 (Jan. 29, 1982), overruled by Heifner v. Bradford, 4 Ohio St. 3d 49; 446 N.E.2d 440 (1983).
Heifner v. Bradford; A severed oil and gas interest under the MTA
As in part 1, the operation and effect of the MTA on severed minerals is best understood in the context of facts, which are described below and outlined in the adjacent diagram.
In 1916, Elvira Sprague, who then owned property in Muskingum County in fee, conveyed the property to Fred Waters. The deed to the property excepted the oil and gas. Elvira passed away in 1931, but an authenticated copy of her will was not probated until 1957. In accordance with the terms of the will, an affidavit of transfer was filed and recorded in Muskingum County evidencing the transfer of the oil and gas rights by inheritance from Elvira Sprague to her daughters and their heirs — seven people including Charlotte Heifner.
Meanwhile, in 1936, Fred Waters also conveyed the property to his four children by a deed that makes no reference to the oil and gas exception. In 1980, Lane Bradford and the other defendants-appellants, obtained the property by a warranty deed that similarly did not refer to any oil and gas exception.
In the ensuing litigation between Heifner (whose title came from the Sprague interest), and and Bradford (whose title came from the Waters interest ) both claimed to own the oil and gas. Interestingly, Heifner and Bradford both claimed the MTA supported their respective claims against each other.
The disagreement extended beyond the parties. The Muskingum County Common Pleas Court granted summary judgment to the plaintiff, Heifner but when Bradford appealed, the Fifth District Court of Appeal reversed the trial court. Then, when Heifner appealed that decision, the Ohio Supreme Court reversed the Fifth District’s decision.
The appellate court’s framing of the issue is helpful to sort out the confusion. The Fifth District explained:
The issue is the validity of two conflicting claims of ownership in fee simple to the same estate in oil and gas in place. Absent the Marketable Title Act, the plaintiffs-appellees [the Sprague/Heifner interest] would prevail. A title examination of the tract, tracing ownership from the original patent grant, would have uncovered the reservation of oil and gas in the 1916 Sprague deed. All purchasers thereafter would have been on record notice that the grantee therein, Waters, did not own the oil and gas and could not, therefore, convey it.
But, to fully understand what happened in Heifner v. Bradford, and why, we need to understand the purpose and history of the MTA.
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History of MTA and the opinion of the Fifth District Court of Appeals
In Heifner v. Bradford the Fifth District summarized the history of the MTA as follows:
In 1961, the legislature adopted a modified version of the Model Marketable Title Act. This statute was designed, generally, to eliminate the necessity of tracing title from the ancient original source. In Ohio, this source was usually the patent grant from the United States government. By confining the title search to more recently recorded documents, the act enables examiners and purchasers to avoid the tedious task of reviewing the entire history of the land. Heifner v. Bradford, 1882 Ohio Appl LEXIS 14859, 1982 WL2902.
The court recounted the history of the mineral exception in the original MTA and its amendment, which limited the exception to coal in R.C. 5301.53(E). Saying, simply, “Oil and gas are minerals,” the court proceeded to analyze the parties’ respective claims under the MTA.
Arguments and analysis
The Sprague/Heifner parties claimed that the MTA does not apply when there are two competing record chains of title. But the Fifth District appellate court recounted the provisions of the MTA, much like the Evans court, before applying the MTA to the facts. The court said:
In this case, each of the competing chains of title has a ‘root of title.’ For the [Sprague/Heifner parties], the ‘conveyance … in the chain of title … upon which he relies … which was the most recent to be recorded as of a date 40 years prior to the time when marketability is being determined’ is the deed from Sprague to Waters in 1916. Their root of title, by definition, is the 1916 conveyance.
“For the [Waters/Bradford parties], the conveyance in the chain of title upon which they rely most recent to be recorded as of a date 40 years prior to the time when marketability is being determined is the deed from Fred Waters, et ux., to Charles Byron Waters, et al., in 1936. Their root of title, by definition, is the 1936 deed. Heifner v. Bradford, 1882 Ohio Appl LEXIS 14859, 1982 WL2902.
Sprague/Heifner contended the MTA does not apply in a case involving two competing record chains of title and that their senior interest was not extinguished. Finding support from Walter Barnett, the court disagreed, reasoning that such an interpretation would undermine the purpose of the MTA. Walter E. Barnett, in Marketable Title Acts — Panacea or Pandemonium?, 53 Cornell L. Rev. 45 at 54 (1967). The court found the MTA applicable and that it rendered the more recent Bradford/Waters interest, with its 1936 root of title, marketable. The Sprague/Heifner chain was extinguished by operation of the MTA.
Thus, the Fifth District appellate court found that a “wild” deed could be a root of title, and a subsequent deed in the chain that originated with that “wild” deed could become the legal title if the requisite 40-year period was met. Such was the case here — the 1936 Fred Waters deed survived even though it conveyed something Mr. Waters did not own at the time. The court pointed out: “from an equitable viewpoint this is a drawback of the Act, but a strict statutory constructionist would retort that this result helps fulfill the Act’s espoused purpose — simplifying and facilitating land title transfers.”
Ohio Supreme Court weighs in
The Sprague/Heifner parties, who had the 1916 root of title, appealed the Fifth District Appellat Court’s decision to the Ohio Supreme Court.
To guide its decision, the Supreme Court looked to the adoption of the Model MTA from which the Ohio MTA was created, and the Simes and Taylor Model Title Standards (1960) that accompanied it. The Court observed that the Model Standards acknowledge that there can be two or more independent chains of title. The court also noted that the Ohio Standards of Title Examination embraced this idea.
Consequently, for a moment, it appeared as though the Ohio Supreme Court would agree with the Fifth District that the junior Waters/Bradford interest – with its root of title arising from the 1936 wild deed – would prevail. However, in the end the Ohio Supreme Court found that the 1957 conveyance under the terms of Elvira Sprague’s will was a “title transaction” under the MTA which had the same effect as if the Sprague/Heifner parties had filed a preservation notice under the MTA. So, their root of title was preserved from termination under the MTA by the Waters/Bradford chain of title.
But, without the preserving 1957 transfer under the terms of Elvira Sprague’s will, it is apparent that the result in this case would have been different; the Waters/Bradford interest, which arose from a wild deed that transferred a mineral interest Mr. Waters never owned, would have prevailed.
The purpose of the MTA, to limit searches to a 40-year root of title, succumbed to the idea that there can be two roots and chains of title. The result is that mineral title examiners should look back farther than the MTA-required 40 years — if not to the patent, then at least to before the earliest date of production in the area.