2019 Q3

and [] contained no language purporting to ‘reserve’ that excepted interest for or unto the grantors.”  Id.  Thus, the deeds did not purport to both convey and reserve unto the grantors more than the grantors owned.  As a result, the seven subsequent deeds were not over-conveyances requiring application of the Duhig doctrine.  Id. at 119- 120.

the Duhig doctrine.  When the deed language creates an exception of an interest from the overall grant, rather than a reservation of an interest for the grantor, the deed will not create a Duhig problem.  When interpreting a deed, it is important to pay close attention to the granted interest and ensure whether any additional interests have been either excepted from that grant or reserved for the grantor.

Perryman is significant because it limits the application of

R.A.P. Battle: The Kansas Supreme Court Clips the Rule Against Perpetuities


Perpetuities (“USRAP”), which applies to non-vested property interests.  Under Kan. Stat. Ann. § 59-3401, a non-vested property interest is valid unless it is certain to vest or terminate no later than 21 years after the death of an individual then alive when the interest was created (or within 90 years).  In other words, an interest violates the Rule if a hypothetical situation can be posed in which the interest will vest later than lives in being plus 21 years.  See In re Estate of Freeman, 404 P.2d 222 (Kan. 1965).  However, because the USRAP was not adopted until 1992, the Court applied the similar common law Rule to the 1967 Deeds. The Court began by noting that this was a case of first impression, and that it must decide the validity of the common practice of reserving a term interest in minerals.  It immediately voiced its concern that applying the Rule in this situation this would “voi[d] innumerable transfers of minerals and creating marketable title problems of epic proportions.” The Court then held that the future interest created in the 1967 Deeds could become possessory in the Grantees’ successors more than 21 years after the death of the last of the Grantor or Grantees’ heirs and that it did, theoretically, violate the Rule.  However, the Court went on to explain that the interest originally created in the Grantees was not a reversion, but rather a present, vested interest to which the “Rule is simply inapplicable.”

In Jason Oil Co., LLC v. Littler, 2019 Kan. LEXIS 204 (Kan. 2019) Kansas joined a growing number of jurisdictions declining to apply the rule against perpetuities to defeasible term oil and gas interests. On December 30, 1967, Grantor executed two deeds in favor of separate Grantees conveying tracts of land in Rush County, Kansas (the “1967 Deeds”).  Each 1967 Deed excepted the mineral estate “for a period of 20 years or as long thereafter as oil and/or gas and/or other minerals may be produced.”  Upon the expiration of 20 years, no drilling operations had been conducted on the lands and no oil and gas had been produced from either tract.  Ostensibly, the term interest expired and the excepted minerals became vested in the Grantees’ successors. In 2016, Jason Oil Co. took oil and gas leases from the Grantees’ successors.  The Grantor’s heirs challenged the validity of said leases alleging that the 1967 Deeds violated the rule against perpetuities (the “Rule”), and were thus void ab initio.  The Grantor’s heirs argued that the exception created a fee simple determinable in the minerals, and that the Grantees’ successors’ interests were “springing executory interest” that were voided by the Rule.  The Grantor’s heirs filed a suit to quiet their title to the minerals, which was eventually appealed to the Supreme Court.

Kansas has adopted the Uniform Statutory Rule Against


N a t i o n a l A s s o c i a t i o n o f D i v i s i o n O r d e r A n a l y s t s

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