First National Bank of Healdton v. Dunlap

BRANSON. C. J. Herein is prosecuted error from the district court of Carter county. In 1921, the First National Bank of Healdton obtained a final judgment in the sum of $3,300 against E. Dunlaj». At the time it became final the said E. Dunlap was the owner of an undivided one-tenth interest in a producing oil and gas lease covering certain lands located in the said county of Carter, th’e description of which is unnecessary. Execution was not issued on the said judgment until the 27th day of November, 1922. Within a few days after execution was issued, the sheriff of said county levied upon, and had appraised for the purpose of sale, the said undivided interest in the said oil and gas lease, so owned by the said E. Dunlap at the time said judgment was rendered against him. Between the date of the finality of the judgment and the issuance and levy of the execution, the said E. Dunlap had sold, transferred, and assigned for 'value his said undivided interest in the said oil and gas lease to the Turman Oil Company, a corporation, and shortly after the levy of the said execution the Turman Oil Company filed a motion in the said cause, praying that the execution as to the said oil and gas lease estate b'e revoked, and that the levy thereof upon the same be quashed. This motion was by the court on the 30th day of December, 1922, sustained, upon the ground that the said judgment so rendered as aforesaid against the said' E. Dunlap did not constitute a lien upon the oil and gas lease interest owned by the defendant Dunlap, and not constituting a li'en thereon, same could not be made subject to execution against, after it had been sold and transferred for value. From the order recalling the execution and quashing the same as aforesaid, the plaintiff, the First National Bank .of Healdton, pe.fected this appeal. The sole question involved herein, irrespective of the phraseology of the assignments of error, is whether or not the judgment fastened a lien upon the interest owned by the judgment debtor in the sa'd oil and gas lease. If it did, the Turman Oil Company purchased the same' subject to such lien, and the order and judgment of the court quashing the levy was erroneous The oil and gas lease in question had been developed and was producing. It is the contention of th'e plaintiff in error that the said judgment was a lien upon the said oil and gas leasehold estate by reason of section 690, C. O. S. 1921. This section provides: •‘Judgments of courts of record of this state, except county courts, and of courts of the United States rendered within this state, shall be liens on the real estate of the debtor within the county in which the judgment is rendered' from and after the time the judgment is entered on the judgment docket. An attested copy of the journal entry of any such judgment, together with a statement of the costs taxed against the debtor in the case, may be filed in the office of the clerk of the district court of any county and such judgment shall be a lien on the real estate of the debtor within that county from and after the date of filing and' entering such judgment on the judgment docket. The clerk shall enter such judgment on the appearance and judgment dockets in the same mann’er and within the same time after such judgment is filed in *289 his office as if rendered in the court oí which he is clerk. Execution shall only be issued from the court in which the judgment is rendered, or in which a transcript of a county court judgment is first filed.” ' In its essence, the argument plaintiff; in error makes is based upon certain definitions of “real, property,” and of the words “land.” “real estate,” and “premises,” as found in the statutes oí this state. It cites and quotes section 2323, C. O. S. 1921, which provides: “The term ‘real property’ includes every estate, interest and right in lands, tenem’ents and hereditaments.” And then argues: “Section 2323 expressly states, not what real property includes, and not what the owner of real property owns, but that the term ‘real property’ includes every estate, interest and right in lands, tenements and hereditaments. If the term ‘real property’ does include every interest and right in land, then where the term ‘real property’ or ‘real estate’ is used in our statutes, surely we are justified in including in the terms of the statute 'every estate, interest, and rignt in lands and hereditaments; or, in other words, we are justified in substituting for the term ‘real property or real 'estate,’ the statutory definition, namely, every estate, interest and right in lands, tenements and hereditaments.” This quotation from the brief makes it apparent that the plaintiff in error wants this court to engraft section 2323, supra, upon and into section 690, supra, in order to determine the meaning of the said section 690, and thereby fix a lien in its favor upon the oil and gas leasehold estate at the time of the judgment. We are unable to understand how plaint-ff in error can pres’ent this argument to this court, for the said section 2323 is found in the statutes of this state under the head of “Crimes Against Property,” which is one of the subheads of the general provisions of the statute on “Crimes and Punishments,” and the said definition, argued by the plaintiff in error as if it were a general definition, is qualified by section 2312, which is only eleven sections preceding it, under the same head, “Crimes Against Property,” by this definition: ‘‘Whenever the terms mentioned in the following sections are employed in this chapter, they are deemed to be used in the senses hereafter affixed to them, except where a different sense plainly appears.” Following this last-named section are numerous definitions, including section 2323, but they are made applicable solely to the chapter on “Crimes Against Property,” and ..cannot under any condition be used to throw any light upon the meaning of the, term “real estate,” as found in said section 690, supra. Again, he asserts that section 3560, C. O. S. 1921, is persuasive. This section provides : “The words ‘real property’ are co-extensive with lands, tenements, and heredita-ments.” Again, he cites section 5250, C. O. S. 1921, which provides: “2. The words ‘land, real estate ..and premises.’ when-used herein or in any. instrument relating to real property, are, synonyms,”, etc. ' ..... Without engaging in an extensive discussion of these definitions, the attempt to apply the same fqr interpretation purposes bo the said section 690, C. O. S. 1921, is without logic or reason. There is no statute in this state which provides that an estate in real property, which ordinarily means any interest extending from absolute fee ownership or seisin down to naked possession, shall be considered “real estate.” Cases are cited from this court and other courts, in some of which expressions are found to the effect that an oil and gas lease creates an estate in real property, or an estate in the realty. Bentley v. Zelma, 76 Okla. 116, 184 Pac. 131; Rich v. Doneghey, 71 Okla. 204, 177 Pac. 86; Woodworth v. Franklin, 85 Okla. 27, 204 Pac. 452. We deem that reference to' these cases will enable the interested reader to discern the question in each particular opinion decided. and to undertake to amplify thereon serves no useful purpose herein. On the other hand, the Turma-n Oil Company, in support of the judgment of the trial court, contends that the rule announced by this court in the case of Dutt v. Keaton, 33 Okla. 91, 124 Pac. 291, and the cases from this and other -courts reasoning along the same line, should be applied to justify the action of the trial court in holding that the judgment did not fix a lien upon the interest of the defendant Dunlap in the oil and gas lease in question. As stated by this court in the case of Nicholson Corp. v. Ferguson, 114 Okla. 16, 243 Pac. 195, we will not undertake to iron out the apparent confusion in the eases cited, n'either shall ,we undertake to harmonize all of them. As held by this court in th'e said last-mentioned *290 ease, in dealing with tile character' of property created by an oil and gas lease in the form quoted in the said last-mentioned decision, we must recognize the distinction b'etween real property, or real estate, and an estate in real property. The plaintiff in error in a supplemental brief says that the record in the instant case does not contain the form of the lease in question, but does state: “It is to be regretted that the record in the case at bar does not disclose a copy of the oil and gas lease in question. We take the 'liberty of saying that the lease is, in so far as it is material to this discussion, almost identical with that part of the lease in the Nicholson Case, which is quoted in the opinion. With the lease in the case at bar before the court, there would bé no question but that it is to be covered by the same rule as the lease in the Nicholson Case.” Even if we accept this statement from the plaintiff in error as true, and treat the lease as one in form the same as in the Nicholson Case, supra, as the plaintiff in error suggests that we should, we fail to see that the judgment of th'e trial court was erroneous. This court in the Nicholson Case, supra, r'eached the conclusion that the oil and gas lease there in question granted an estate in the realty covered thereby. It followed in reasoning the case of Ewert v. Robinson, of the 8th Circuit Court of Appeals, 289 Fed. 740. 35 A. L. R. 219, and' the cases cited in support of the reasoning thereof and conclusion therein reached. Conceding that the lease sought to be subjected to the lien in favor of the plaintiff in error created an estate or interest in the realty, it does not fallow that any lien attached thereto under the said section 690, C. O. S. 1921. The plaintiff in error cites the case of First Nat. Bank of Davenport v. Bennett, 40 Iowa, 537. He quotes the syllabus in said case, to this effect: “A judgment is a lien on a leasehold interest in real 'estate; and such lien takes precedence lof subsequent conveyances or transfer of the lease by the judgment debtors.” In the body of th’e opinion in that case, the statute of the state of Iowa is set forth, and the same is modified by this phrase: “The phrase ‘real estate’ includes lands, tenements, hereditaments and all rights, thereto and interest therein, equitab-'e as well as legal.” If there were any such statute as this one just quoted in the state of Oklahoma, our conclusion that an oil and gas lease in the form conceded creates an interest or estate in real property, then we must logically deduce that the judgment was a lien thereon. But the statute provides that the judgment creditor shall have a lien upon “real estate” owned by the judgment debtor in the county. The plaintiff in error would have this court go to the extent of holding that all and every kind of estate recognized in th’e law, which one, individual or corporate, may have in real property is itself real estate within the meaning of said section. While unquestionably such an oil. and gas-lease creates an interest or an 'estate in the realty, that interest or estate is not “real estate” in the sense in which the said section 690, supra, uses this terminology. It would unquestionably be within the power of the legislative body to make a judgment a lien upon every conceivable estate recognized by the law as capable of being owned by natural as well as corporate persons. But the statute relied upon as fixing the lien upon the interest of the defendant Dunlap in the realty created by th'e oil and gas lease does not go to that extent. The judgment of the trial court quashing the levy on the oil and gas leasehold interest own'ed by the defendant at the time the judgment became a finality is without error, and is affirmed. LESTER. HUNT, CLARK, RILEY, and HEFNER, JJ., concur. MASON and PHELPS, JJ., dissent.