This case dealt with ownership of the oil and gas royalty, rental, and bonus interests in the property at issue. More specifically, the case dealt with what was conveyed and reserved in a 1943 deed and whether estoppel by deed should apply. The court applied the Texas Duhig rule to determine that, regardless of the plain language of the deed, the grantor conveyed and did not reserve a 1/2 interest to the oil and gas royalties, rentals, and bonuses.
The property at issue in the case is 70.25 acres located in Monroe County, Ohio, subject to the following chain of title:
1. In 1931, E.M. Ward and Glena Ward conveyed the property to Walter Ady. This deed contained two reservations and exceptions: (1) 3/4 of the oil and gas royalty, rental, and bonus interests and (2) the entire coal estate that was sold prior to the conveyance to Samuel W. Harper.93
2. In 1934, Walter Ady re-conveyed all his right, title, and interest in the land back to E.M. Ward, who once again owned the entire oil and gas estate.
3. In 1936, E.M. Ward conveyed the property to Dow Mellott, reserving 1/2 of the oil and gas royalty, rental, and bonus interests and again indicated that Samuel Harper owned the coal estate.94
4. In 1943, Dow Mellot conveyed the property to Minnie Tomolonis, “[e]xcepting and reserving the coal known as the Pittsburgh or No. 8 vein, the same having been sold to Samuel Harper … Also excepting 1/2 of the oil and gas royalty and 1/2 of all rentals and bonuses from the above grant.”95
5. In 1945, E.M. Ward conveyed his 1/2 interest in the oil and gas royalty, rental, and bonus to Nova A. Christman, the Appellants’ predecessor in title.
6. In 1949, Minnie Tomolonis was conveyed the property to Martha Conway and five other Grantees. This deed stated:
The grantors reserve and except unto themselves, their heirs and assigns, the one half of oil and gas, with the right to enter upon said premises for the purpose of producing the same. Also excepting and reserving the coal and mining rights and the oil and gas rights as heretofore reserved, excepted and conveyed by former owners of said premises.96
7. Finally, in 1967, Minnie Tomolonis sold Nova A. Christman and Dollie Christman, her purported 1/2 interest in the oil and gas royalties, rentals, and bonus.
The surface estate to the property was conveyed several times before it reached Ronald and Candace Talbot, Appellees. In 2013, the Appellees sought to have the minerals reunited with the surface through the ODMA, and this suit commenced.
The Appellants were not original parties to the suit, as the original suit was filed against Dow Mellott, E.M. Ward, and their unknown successors and assigns, but the Appellants, being the successors of Nova A. Christman and Dollie Christman, filed a motion to intervene, claiming they owned the entire oil and gas royalty, rental, and bonus interests. At trial, each party filed a motion for summary judgment claiming ownership. The trial court granted the Appellees’ motion that the minerals were reunited with the surface pursuant to the 1989 ODMA. The Appellants filed a timely appeal.
Several issues were raised by the Appellants on appeal; however, the most significant assignment of error was that the trial court erred when it determined the 1943 deed from Mellott to Tomolonis did not convey any oil and gas interest, but rather Mellot retained the remaining 1/2 interest in oil and gas royalty, rental, and bonus.97
The crux of the Appellants’ argument was that, despite the plain language in the 1943 deed, the 1/2 interest in the oil and gas rental, royalty, and bonus was conveyed pursuant to estoppel by deed or what is known in Texas as the Duhig98 rule. The court goes on to explain that under the Duhig rule “a grantor and his successors are estopped from claiming title in a reserved fractional mineral interest when to do so would, in effect, breach the grantor’s warranty as to the title and interest purportedly conveyed to the grantee.”99 Noting that the Duhig rule has been accepted in at least seven other states, the court applied the Duhig logic to the case at hand.
In the 1943 deed from Mellott to Tomolonis, the surface was conveyed, and the court noted it was possible that there was a reservation of a 1/2 interest in the oil and gas royalty, rental, and bonuses. However, the 1943 deed made no mention of the outstanding 1/2 interest in oil and gas royalty, rental, and bonus owned by E.M. Ward. Therefore, Tomolonis expected to receive a 1/2 interest regardless of whether Mellott actually reserved an interest in the deed. Because Mellott only owned a 1/2 interest to begin with, said interest was conveyed to Tomolonis, resulting in a valid reservation of the same 1/2 interest in the 1949 deed from Tomolonis to Conway, et al.100
The court concluded by holding that, in applying estoppel by deed principles and the Texas Duhig rule, the Appellants were the rightful owners of the entire oil and gas royalty, rental, and bonus interest in the property. There has been no appeal to the Ohio Supreme Court. This case is important because, for the first time, an Ohio court has applied the reasoning of the Texas Duhig rule to establish title through estoppel by deed.
92 Talbot v. Ward, 7th Dist. Monroe No. 15 MO 0001, 2017-Ohio-9213.
93 Id. at ¶ 5.
94 Id. at ¶ 7.
95 Id. at ¶ 8.
96 Id. at ¶ 9.
97 Id. at ¶ 2.
98 Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d 878 (Tex. 1940).
99 Talbot v. Ward, at ¶ 52. (Citing Duhig v. Peavy-Moore Lumber Co., 144 S.W.2d 878 (Tex. 1940)).
100 Id. at ¶ 73.