Quiet Title Action, Dormant Mineral Acts
Dormant and Lapsed Mineral Rights statutes in both North Dakota and South Dakota allow for a non-judicial method for a surface landowner to recover abandoned mineral rights. The law of both states also allows for a second judicial remedy for cleaning up abandoned or lapsed mineral rights claims. This second step is a lawsuit called a Quiet Title Action. This action has all the benefits and costs of a lawsuit and arguably offer a better, clearer or what may be called a ‘perfected’ title in the recovered mineral rights. There is very little available case law discussing abandoned and lapsed mineral rights and even less discussing a quiet title lawsuit to recover those rights. The below is a recent case discussing some of the issues one encounters when addressing a default judgment quiet title lawsuit.
Defendant, (hereafter “Defendant”), filed with
this Court a motion to vacate the Judgment entered by this Court on February 29, 2012. Plaintiff resisted this motion. The Court has considered all the papers and pleadings on file. This Court being fully informed regarding the matter makes the following decision. The decision of the Court is to GRANT Defendant’s motion to vacate Judgment as it pertains to Defendant, Anna Fay Bush.
[2] On January 13, 2012, Plaintiff filed a quiet title action based on procedures set forth under N.D.C.C. 538-18.1 along with an affidavit to allow service by publication. On February 24, 2012, Plaintiff filed an affidavit of publication and affidavit of default. A Judgment by Default quieting title in and to the minerals under the subject property was entered in this action on February 29, 2012.
(31 Defendant now moves to vacate the Judgment under N.D.R.Civ.P. 60(b), arguing the service by publication was defective and the Judgment was therefore void. Defendant also seeks relief under N.D.R.Civ.P 4(e)(7), asserting she did not receive actual notice of the proceedings and she has a good and meritorious defense to the quiet title action.
[4] Personal jurisdiction in a subsequent quiet title action is governed solely by compliance with N.D.R.Civ.P. 4. Peterson v. Jasmanka ex rel. Clark, 2014 ND 40, 118, 842 N.W.2d 920. N.D.R.Civ.P. 4(e)(7), provides in part:
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Except in an action for divorce, the defendant upon whom service by publication is made, or the defendant’s representative, upon making it appear to the satisfaction of the court by affidavit, state the facts, that the defendant has a good and meritorious defense to the action, and that the defendant had no actual notice or knowledge of the pendency of the action so as to enable the defendant to make application to defend before the entry of judgment therein, and upon filing an affidavit of merits, may be allowed to defend at any time within 3 years after entry oE judgment on such terms as may be just.
Oee First Bank v. Neset, 1997 ND 4, j14, 559 N.W.3d 211.
(5] Here, Defendant claims in her affidavit in support of her motion to vacate judgment:, that she owns mineral interest in the subject property in this action. Defendant attached to her
affidavit, a copy of the mineral deed under which she obtained the mineral interests in this action (Defendant’s Exhibit A). Defendant also claims in her affidavit that she had never been personally served with the Summons and Complaint in this matter nor did she receive a copy of the Summons and Complaint in this matter by mail. Defendant further claims in her affidavit that she did not receive papers or notices concerning the quiet title action nor did she receive the newspaper in which the notice of lapse of
mineral interests was published. Defendant claims that she
discovered the Judgment against her when she and her daughter were researching and securing her mineral interests.
[6] Defendant filed her motion to vacate Judgment on October 7, 2014, which is within three years after the entry of Judgment, Therefore, Defendant’s motion to vacate is timely. Furthermore,
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Defendant has submitted an affidavit in which she claims that has a good and meritorious defense to the action as she is an owner of the mineral interests subject to this action. finally, based on the Defendant’s affidavit, the Court is persuaded that the Defendant had no actual notice or knowledge of the quiet title action to enable the Defendant to appear and defend. Therefore, the Defendant is entitled to relief under N.D.R.Civ.P 4(e)(7),
[7] Therefore, for the reasons provided above, it is the ORDER of this Court that the judgment entered by this Court, as it pertains only to Defendant, , is hereby vacated. Defendant,
is granted leave to and must file an Answer to Plaintiff’s Complaint within 14 days of the date of this Order if she intends to appear and defend in this action.
Dated this 14th day of January, 2015.
