Taurus Corp. v. Roman Yourk Equity Pure Trust

264 N.W.2d 688, 60 Oil & Gas Rep. 379, 1978 N.D. LEXIS 224
CourtNorth Dakota Supreme Court
DecidedMarch 30, 1978
DocketCiv. 9421
StatusPublished
Cited by7 cases

This text of 264 N.W.2d 688 (Taurus Corp. v. Roman Yourk Equity Pure Trust) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Taurus Corp. v. Roman Yourk Equity Pure Trust, 264 N.W.2d 688, 60 Oil & Gas Rep. 379, 1978 N.D. LEXIS 224 (N.D. 1978).

Opinions

ERICKSTAD, Chief Justice.

This is an appeal by The Taurus Corporation, a Wyoming corporation, plaintiff and appellant (hereinafter Taurus), from a summary judgment granted by the Billings County District Court, quieting title to certain land in Billings County in Roman Yourk, trustee of the Roman Yourk Equity Pure Trust, defendant and appellant (hereinafter Yourk).

This appeal concerns the proper construction of Section 47-16-36, N.D.C.C. That section basically establishes a procedure in which recorded oil, gas and other mineral leases can, in effect, be removed from the record by the lessor. Section 47-16-36, N.D.C.C., requires that the lessor serve the lessee with a notice substantially in the form set out in the statute. The lessee then has a period of time in which to give notice in writing to the register of deeds of the county where the real property is located that the lease has not been forfeited. If the lessee complies with the statute and gives the proper notice, the lessor is entitled to the remedies provided by law to cancel the disputed lease. If, on the other hand, the lessee does not give the notice within the required time, the lessor can file with the register of deeds an affidavit setting out the facts required by the statute. This affidavit is then recorded by the register of deeds and thereafter the record of the lease will not be notice to the public of the existence of the lease. The record of the lease then also cannot be received in evidence in any court of this state on behalf of the lessee, his successors or assigns against the lessor, his successors or assigns.1

[690]*690The facts relevant to this appeal are not in dispute.

On February 23,1977, Yourk executed an oil and gas lease in favor of Taurus which Taurus caused to be recorded in the office of the register of deeds of Billings County. On May 5, 1977, Yourk sent to Taurus by certified mail, notice in the manner and form prescribed by Section 47-16-36, N.D.C.C., claiming the oil and gas lease had been terminated and been forfeited by reason of the failure of Taurus to pay any consideration therefor. This notice was received by Taurus at its offices in Casper, Wyoming, on May 7, 1977. On May 26, 1977, Yourk caused an affidavit made in accordance with the provisions of Section 47-16-36, N.D.C.C., to be recorded in the office of the register of deeds of Billings County, North Dakota. On May 27,1977, Taurus mailed to the register of deeds of Billings County, notice declaring that the lease in question had not been forfeited and was in full force and effect. This notice was received by the register of deeds, but there is no evidence in the record as to the date it was received.

Taurus subsequently instituted an action in the Billings County District Court to quiet title to establish the validity of its oil and gas lease. In answer, among other things, Yourk asserted that Taurus had not complied with the time limitations of Section 47-16-36, N.D.C.C. Yourk then filed a motion for summary judgment which was heard by the Billings County District Court on October 7, 1977. The district court concluded from the facts that Yourk had complied with the provisions of Section 47-16-36, N.D.C.C., and that Taurus did not give notice to the register of deeds within the required time. On that basis, the district court, in a judgment dated October 13, 1977, granted summary judgment in favor of Yourk holding that Taurus had no interest, lien or encumbrance upon the real estate in question.

The first issue in this appeal is whether or not Taurus complied with Section 47-16-36, N.D.C.C., by giving its notice to the register of deeds within the required time. The time limit in which the lessee must give its notice to the register of deeds that it disputes the alleged forfeiture of the lease is spelled out in the statute itself.

“The owner of said real property may after twenty days from the date of service, registration, or first publication of said notice, file with the register of deeds of the county where said real property is situated an affidavit ... If the lessee, his successors or assigns, shall within such twenty days after service, give notice in writing to the register of deeds . . .” § 47-16-36, N.D.C.C.

This time limit is also contained in the statutory form of the notice the lessor must give the lessee. The relevant part of the notice reads:

“I hereby elect to declare and do declare the said lease forfeited and void and that, unless you do, within twenty days from this date, notify the register of deeds . . . ” § 47-16-36, N.D.C.C.

[691]*691Taurus contends that it complied with the time provisions contained in the statute by mailing its notice to the register of deeds on May 27, 1977. It contends that the 20-day-period did not begin to run until it actually received the notice from Yourk on May 7, and that therefore the mailing of the notice on the 27th of May was timely. Yourk, on the other hand, contends that the 20-day-period began on the date the certified letter was mailed. The date of mailing, Yourk contends, is the date of service.

We agree with Yourk that the date of mailing is the date of service. The language of the statute which causes the confusion reads: “The owner of said real property may after twenty days from the date of service, registration, or first publication of said notice, file with the register of deeds .”. We construe this language to mean that the lessee has 20 days from the date of personal service, 20 days from the date of mailing of certified or registered mail, or 20 days from the date of first publication of the notice to give its notice to the register of deeds. The word “registration” thus is construed to mean the date of mailing of certified or registered mail. This interpretation of the word registration is in accord with Section 1-02-36, N.D.C.C., which states:

“Wherever the term ‘registered mail’ appears in the laws of the state of North Dakota it shall mean ‘registered or certified mail’.”

The 20-day-period from the date of service is then computed in the manner prescribed by Section 1-02-15, N.D.C.C. The relevant part of that section reads:

“Computation of time. — The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last is a holiday, and then it also is excluded.”

In this case, since the certified letter containing the notice from Yourk to Taurus was mailed on May 5, 1977, excluding the first day as required by Section 1-02-15, N.D.C.C., the 20-day-period expired on May 25, 1977. Taurus’ mailing of its notice to the register of deeds on May 27, 1977, therefore, was not within the time required by Section 47-16-36. The district court’s holding that Taurus did not give its notice to the register of deeds within the time required by Section 47-16-36, N.D.C.C., is therefore correct.

It should be noted that the rules on computation of time contained in the North Dakota Rules of Civil Procedure do not apply to Section 47-16-36, N.D.C.C. That section does not deal with a proceeding in a district court (Rule 1, N.D.R.Civ.P.)2 or an appeal to a district court (Rule 81(b), N.D.R. Civ.P.).3 Likewise that section does not provide that the procedure “shall be done in the manner provided by law or as in a civil action” so as to come under Rule 81(c), N.D.R. Civ.P.4

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Taurus Corp. v. Roman Yourk Equity Pure Trust
264 N.W.2d 688 (North Dakota Supreme Court, 1978)

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Bluebook (online)
264 N.W.2d 688, 60 Oil & Gas Rep. 379, 1978 N.D. LEXIS 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/taurus-corp-v-roman-yourk-equity-pure-trust-nd-1978.