XTO Energy, Inc. v. Thacker
2015 Ark. App. 203
| Ark. Ct. App. | 2015Background
- 1929 mineral deed from J.T. and Mary Riffey granted an undivided 1/2 mineral interest to N.H. Tarver and I.R. Timmons; the deed contains a handwritten interlineation reading “also the South quarter of the Northeast quarter, 40 acres.”
- Riffeys conveyed remaining interests to V.P. Bumpers in 1930; Thackers are successors to Bumpers; Tarver (and heirs) descend from N.H. Tarver.
- In April 1984 the Thackers filed a quiet-title action naming N.H. Tarver among defendants; an affidavit for warning order recited that the attorney made a "diligent inquiry" but gave no details; publication occurred and a decree quieting title was entered in June 1984.
- In 2010 Tarver (heirs) and XTO sued to set aside the 1984 decree for lack of proper service and sought reformation/give effect to the 1929 handwritten notation; the trial court upheld the 1984 decree and ruled the handwriting was surplusage.
- On appeal the court reviewed de novo whether the 1984 decree was void for lack of service and de novo (with clear-error review) reformation issues; it reversed the judgment upholding the 1984 decree and remanded to set it aside, but affirmed that the handwritten interlineation is given no effect.
Issues
| Issue | Plaintiff's Argument (Tarver/XTO) | Defendant's Argument (Thackers) | Held |
|---|---|---|---|
| Validity of 1984 constructive service by warning order and statutory notice | Affidavit was conclusory; Rules/ statute not strictly followed—no proof of diligent inquiry, no restricted-delivery mailing, statutory quiet-title notice published only two weeks | 1984 decree recited proper service; court should presume chancery court complied with rules and statutes | 1984 service was improper: affidavit lacked details of diligent inquiry; restricted-delivery mailing not shown; statutory quiet-title notice published only two weeks instead of four — decree void for lack of jurisdiction |
| Timeliness/statute of limitations attack on 1984 decree | Action to set aside decree is timely because lack of notice defeats the three-year limitation | The 3-year limitation and prior decree should bar relief | Limitation did not bar this direct attack: where bona fide notice was not given, limitation does not apply; this is a direct attack on a void judgment |
| Whether the handwritten interlineation in 1929 deed should be given effect | The interlineation should be enforced or deed reformed to reflect the intended tract (argue it supplies omitted quarter) | Interlineation is ambiguous, uncertified, recorded long after execution, and parties/recorder are deceased; should be disregarded as surplusage | Interlineation is of doubtful import, incomplete, and cannot contradict clear deed language; give no effect to the handwritten notation |
| Request to reform description to "Southwest quarter" of NE/NE (alternate reformation argument) | Reform to correct clerical error to Southwest quarter of NE quarter | Trial court did not rule below | Issue not preserved on appeal; court will not review because no lower-court ruling |
Key Cases Cited
- Wright v. Viele, 429 S.W.3d 314 (Ark. App. 2013) (default-judgment service defects render judgments void and strict compliance with service rules is required)
- Smith v. Edwards, 648 S.W.2d 482 (Ark. 1983) (affidavit for service by publication must show specific steps of diligent inquiry, not mere conclusory statement)
- Davis v. Schimmel, 482 S.W.2d 785 (Ark. 1972) (constructive service requires compliance with procedural safeguards)
- Ingram v. Luther, 424 S.W.2d 546 (Ark. 1968) (statutory notice requirements for quiet-title actions are distinct and mandatory)
- Eason v. Flannigan, 75 S.W.3d 702 (Ark. 2002) (lack of compliance with statutory notice defeats subject-matter jurisdiction in quiet-title actions)
- Bennett v. Henderson, 663 S.W.2d 180 (Ark. 1984) (subsequent ambiguous handwritten additions to deeds of doubtful import cannot alter clear preceding language)