XTO ENERGY, INC., AND GILBERT W. TARVER and BARBARA COOK, APPELLANTS
MARSHALL RAY THACKER and ELENA MARIE THACKER, AS TRUSTEES OF THE THACKER FAMILY REVOCABLE LIVING TRUST, DATED APRIL 25, 1992, ET AL., APPELLEES
APPEAL FROM THE VAN BUREN COUNTY CIRCUIT COURT. NO. CV-2010-068. HONORABLE MICHAEL A. MAGGIO, JUDGE.
Hardin, Jesson & Terry, PLC, by: Robert M. Honea; and Halstead Law Firm, by: Kelly Halstead, for appellants.
Morgan Law Firm, P.A., by: M. Edward Morgan, for appellees Marshall Ray Thacker and Elena Marie Thacker, as Trustees of the Thacker Family Revocable Living Trust Dated April 25, 1992.
Danielson Law Firm, PLLC, by: Erik P. Danielson, for appellee 4JW, LTD.
Daily & Woods, PLLC, by: C. Michael Daily, for appellees Chesapeake Exploration, LLC; Chesapeake Investments; BP American Production Company; Weiser-Brown Operating Company; Charles N. Wohlford; Wolf Exploration, Inc.; Glen D. Fritsche; Kenneth L. Fritsche; Ursula Royalty, LLC, and TMR Exploration.
RAYMOND R. ABRAMSON, Judge. VAUGHT and HIXSON, JJ., agree.
RAYMOND R. ABRAMSON, Judge
This appeal concerns the validity of a 1984 decree that quieted title to certain
mineral interests in appellees Marshall Ray Thacker and Elena Marie Thacker. Appellants Gilbert Tarver and Barbara Cook (collectively, " Tarver" ) filed suit challenging the 1984 decree. On cross-motions for summary judgment, the Van Buren County Circuit Court concluded that the earlier decree was valid based on its finding that there had been proper service by publication in the 1984 case. The circuit court further concluded that a handwritten notation in the legal description of the deed conveying part of the mineral interest was surplusage and should not be given effect. Based on those conclusions, the court granted the motions for summary judgment filed by the Thackers and those claiming through them and denied the motions for summary judgment filed by Tarver and his oil and gas lessee, appellant XTO Energy Inc. XTO and Tarver appeal, contending that the prior decree quieting title was invalid but that the handwritten notation should be given effect. We reverse on the first point, but affirm on the second point.
The parties trace their titles back to J.T. Riffey and his wife, Mary Riffey. On November 16, 1929, the Riffeys executed a mineral deed conveying an undivided one-half interest in oil, gas, and other minerals to N.H. Tarver and I.R. Timmons. The deed also includes a handwritten notation as part of the legal description, stating " also the South quarter of the Northeast quarter, 40 acres." The Timmons interest is not an issue in this appeal.
By three deeds, dated August 29, October 6, and November 1, 1930, the Riffeys conveyed the surface and remaining one-half interest in minerals to V.P. Bumpers. Gilbert Tarver and Cook are the heirs of N.H. Tarver, who died intestate in 1978. The Thackers are the successors in title to V.P. Bumpers, having acquired their interest in 1961.
On April 6, 1984, the Thackers filed a petition to quiet title in the chancery court of Van Buren County. N.H. Tarver was named as one of several defendants. In their petition, the Thackers asserted that they had been in " open[,] notorious and adverse possession of the subject property for a period in excess of Seven years and have paid taxes on all surface interests in such property." They further alleged that they owned all of the mineral interests
previously conveyed, including the one-half interest in minerals conveyed to Tarver and Timmons. They asserted that the grantor of the various mineral interests listed in the complaint was not the record owner of the property and had no right to convey such property.
On the same day, the Thackers' attorney executed and filed an affidavit in which he stated that " after diligent inquiry the identity or whereabouts of the following named defendants is unknown: . . . N.H. Tarver." The affidavit listed all of the named defendants, but was otherwise silent with respect to detailing the efforts to locate the named defendants. The warning order was issued the same day. According to the affidavit of ...