1926 two parties present documents to be filed at an Oklahoma county courthouse.
Document #1 (warranty deed) is filed first and given the reference number of 55528
Document #2 (mineral deed) is filed second and given the reference number of 55530
Clerk enters document #2 (55530) in the index book first, giving it a smaller index number than document #1 (55528)
NOTE: In 1926 there are different books for different transactions: warranty deeds are filed in the warranty deed book and mineral deeds are filed in the mineral deed book. Different kinds of documents are not filed in the same book in sequence.
The clerk reverses the order in which the deeds were presented and referenced.
The clerk records the mineral deed (#55530) in the index book first. The clerk records the warranty deed (55528) in the index book second.
Which document is considered filed first?
I have heard opinions on both sides.
Thanks for any help.
J
I would look at the instrument and see if there are file stamps. If Doc. # 1 has a stamped reference no. of 55528 and an earlier file date on the instrument, I would consider that prima facie evidence of an earlier filing, notwithstanding the clerk's errors or incompetence.
First: There are hand written reference numbers on each document and beside the book and page number in the index.
Second Do I understand correctly that as the matter stands now 55530 is considered filed first and that the clerk probably made an error in indexing it first.
Third: Do you have any advice as to how I can go about using my prima facie evidence to convince the leasing company and later the title opinion attorney, who may be the easier of the two to convince, that document 1 is considered filed first.
J
In my opinion 55528 is a lower file no. than 55530. If those are written on the instruments, as one would expect them to be, along with a file date, I would show the instruments to them.
If you don't care for my replies, you can hire an Oklahoma attorney, and seek legal counsel.
Dave:
I love your replies and I appreciate them very much.
I expect to have trouble convincing the leasing company to accept that the lower numbered document was filed first, even tho I know that was the intent as evidenced by the numbers on the documents. Also, it is obvious by the language of the documents that the intent was to have 55528 filed first.
I will scrutinize the documents thoroughly to see if there is any detail I missed and have them ready to turn over as I present my prima facie evidence.
Thanks, J
Don't get confused. In Oklahoma below is true.
55528 First of record. Ya gotta beat me to the courthouse.
I was anticipating confronting the leasing company with the evidence. It occurs to me I should present it to the county clerk, trusting she will want to correct the error created when a 1926 clerk entered the documents incorrectly into the index book.
J
28 first to courthouse and tagged with a number!
Thanks John and Dave,
I really appreciate your validating my opinion.
I am waiting for the leasing company to tell me if they accept that 28 was filed first. If they won't, then I will talk to the clerk about correcting the index book or proceed with an attorney.
The documents with their respective numbers written on them should stand as proof of which document was filed first. However, a landman with "no dog in the hunt" says it is Book and Page that rules. I don't think she is correct but it causes me to anticipate a fight.
J
It makes no difference what the entry number is.
It makes no difference what the book and page number is.
It makes no difference as to when the document was actually recorded.
It makes no difference if the document is mis-indexed.
What does make a difference is the stamped file date on the document, not the recorded date. The reason is that the first document that has been raced to the courthouse wins the race and that is determined by the FILE date and time, as placed by the Recorder's Office of the County Clerk of the county in Oklahoma.
If I were you, do nothing. I have never seen a clerk alter records. I suspect some might think that res ipsa loquitur applies.
Buddy Cotten
Dear Buddy,
Thanks for validation of the fact that document 1 was filed first.
The leasing company wants to lease at 1/3 of what I actually own. It took many e-mails and phone calls finally to have one of their people agree to look at the situation. (By the way I think that other owners are affected and may not know.)
I am not planning on doing anything until I hear back from the leasing company. Hopefully, they will see the error of their ways. If they don't, I feel I must take action or get forced pooled.
In my county's books, I have seen errors corrected by the clerks. That doesn't mean my current clerk would be willing to do that now.
J
It looks like a consensus except for the bad advice that you got from the female land person. That is where her personal logic took her, except that she was wrong.
From what you describe in the facts of your case, I don't believe that there was any intent on the part of the clerk to alter the records. It sounds more like a mistake of inexperience or incompetence. I SEE THAT ALL OF THE TIME in the county clerk's office.
In case you don't understand the term res ipsa loquitur, it is a legal term that generally or almost always applies to a tort case. It is Latin for the thing speaks for itself. The classic example is when someone goes in for an operation where they need to be opened up, and a later X-ray indicates that the surgeon left one of his tools inside of the patient. This is prima facie evidence of negligence on the part of the doctor. Nothing else need be proven.
Without even getting to res ipsa, I probably put it best when I told you that the earlier file number is prima facie evidence that the particular instrument was filed first. How do you convince them of that? Send them a certified copy with a cover letter. If they are so dense that they can't see that or accept that, consult an Oklahoma attorney, and have them start a paper trail with a cover letter threatening legal action.
Judy Phillips said:
Dear Buddy,
Thanks for validation of the fact that document 1 was filed first.
The leasing company wants to lease at 1/3 of what I actually own. It took many e-mails and phone calls finally to have one of their people agree to look at the situation. (By the way I think that other owners are affected and may not know.)
I am not planning on doing anything until I hear back from the leasing company. Hopefully, they will see the error of their ways. If they don't, I feel I must take action or get forced pooled.
In my county's books, I have seen errors corrected by the clerks. That doesn't mean my current clerk would be willing to do that now.
J
Thanks Dave:
I will let you know when the leasing company responds. If they don't respond soon, I will proceed as you suggest with certified copies and a letter. I will send by certified mail both to the leasing company and to the oil company they are leasing for. Looking back, I wish I had gone with that approach rather than e-mails and phone calls.
I think you are right about the female landman.
In the 1926 portion of the index book written beside Book and Page numbers are the reference number. Because the documents were stamped at the same date and time, those reference numbers are important. I must admit when I first ran the title I paid no attention to them. I am a changed person. I will always look for them.
Have a good day.
J
Hey, I wasn't trying to be sexist. Just trying to differentiate between the good responses and the bad one.
Looking back, I guess I could have been more emphatic in earlier replies, using underlines etc., but I always have the realization here that I am at a disadvantage. I'm like the guy (or girl) from Missouri. You have to "show me". (for me to be absolutely, 100% certain)
ABSOLUTELY CORRECT.
Buddy Cotten said:
It makes no difference what the entry number is.
It makes no difference what the book and page number is.
It makes no difference as to when the document was actually recorded.
It makes no difference if the document is mis-indexed.
What does make a difference is the stamped file date on the document, not the recorded date. The reason is that the first document that has been raced to the courthouse wins the race and that is determined by the FILE date and time, as placed by the Recorder's Office of the County Clerk of the county in Oklahoma.
If I were you, do nothing. I have never seen a clerk alter records. I suspect some might think that res ipsa loquitur applies.
Buddy Cotten
Judy,
Don't be confused. The emphatic affirmation of one of the replies may lead you to believe that the others were incorrect. They weren't, except for the one that you received before you sought advice here. (who just happened to be female.)
John E. Broyles said:
ABSOLUTELY CORRECT.
Buddy Cotten said:
It makes no difference what the entry number is.
It makes no difference what the book and page number is.
It makes no difference as to when the document was actually recorded.
It makes no difference if the document is mis-indexed.
What does make a difference is the stamped file date on the document, not the recorded date. The reason is that the first document that has been raced to the courthouse wins the race and that is determined by the FILE date and time, as placed by the Recorder's Office of the County Clerk of the county in Oklahoma.
If I were you, do nothing. I have never seen a clerk alter records. I suspect some might think that res ipsa loquitur applies.
Buddy Cotten
You have another option. Just lease to some other person who will pay you for all your interest.
Judy,
Don't get confused. You have to first try to resolve it with current lessee for the reason that the legal description will describe the gross acres. Some other person will see that lease of record, or the current lease, and not want to lease it because of various reasons, notwithstanding that there is public notice that it is under lease. Disregard all of the personal motivations for wanting to favor one reply over others, and do what you said that you were going to do. Make Plan B consulting with an oil & gas attorney.
I did not see anywhere where it was posted that there is already a lease of record. Is there presently a lease recorded?