Date: 09-02-2014

Case Style: Milburn Irrevocable Trust v. John D. Potts s/pa John Potts, et al.

Case Number: CJ-2004-672

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Joe Lawter

Defendant's Attorney: Cheryl Clayton and William H. Mattoon for John D. Potts, et al.

Philip Anthony Schovanec for David Joseph O'Connor

K. Lynn Anderson for the United States Of America Ex Rel Internal Revenue Service

Kim Ashley for Oklahoma State of ex rel Oklahoma Tax Commission,

Description: Norman, Cleveland, OK - Milburn Irrevocable Trust sued John D. Potts s/pa John Potts, et al. seeking the partition of real property.

The claims made are not available.

Outcome: Journal entry of judgment

NOW ON THIS 22 day of August, 2014, the above entitled cause comes on for hearing before me, the undersigned Judge of the District Court of Cleveland County, Oklahoma, with the plaintiff, Milburn Irrevocable Descendants Trust u/t/a July 26, 1989, appearing by and through counsel, Joe B. Lawter, and the defendants, John D. Potts, s/p/a John Potts, Andrew John Potts, Jr., Walter E. Vanderburg, Administrator of the Estate of Barbara Marie Vanderburg, s/p/a Barbara Vanderburg, Deceased, and Walter E. Vanderburg, s/p/a Walter Vanderburg appearing by and through counsel, Cheryl Clayton, P.C.. Sandra Potts filed a disclaimer in the action and the Oklahoma Tax Commission, Federal Deposit Insurance Commission, and Unites States of America, ex rel Internal Revenue Service have been or are dismissed from the action. The defendant, David Joseph O’Conner appears not, having quit claimed all his interest in the subject property as more fully set out in this journal entry. The defendants, Peter Beitzell; Margarehtta Beitzell, s/p/a Margarehtta Beitzell, were served with summons and by publication and failed to answer. The remaining defendants appear not but make default.
The court, having examined the records and files herein, finds that J.C. Wails; L.M. Pratt s/p/a Louis M. Pratt; Charles E. Vail; Mary Vail; Mildred Vail Wagers; E.E.Vail; Edward E. Vail; Robert L. Vail; Emma Roberts, formerly Vail, Marion Egner Beitzell, s/p/a Marion Egner Beitzell; Albert E. Beitzell, s/p/a Albert Earnest Beitzell; Edmond R. Doak, s/p/a E. R. Doak, s/p/a Edmond Rufus Doak; G.N.Vail; Josephine Vail Doak; Louise Egner Huebner; Camille Egner Washburn; and George L. Vail, and their unknown heirs, executors, administrators, devisees, trustees, successors and assigns have been served by Notice of Publication in the Norman Transcript, a newspaper published and of general circulation in Cleveland County, Oklahoma, and that a period of more than forty-one (41) days has elapsed since the first publication of the Notice by Publication, that the answer date of the defendants, as fixed in said Notice by Publication, has passed and that the defendants, have failed, refused and neglected to plead or answer to the Petition of the plaintiff filed herein, and that they are in default by reason thereof.
The court further examined the verified allegations for service by publication in the Petition on file herein and the Proof of Publication, and the court conducted a judicial inquiry into the sufficiency of plaintiffs search to determine the names and whereabouts of any unknown heirs or defendant who have been served by publication and, based on the evidence adduced, the court finds that the plaintiff has exercised due diligence and has conducted a meaningful search of all reasonably available sources at hand. The court hereby approves the publication of service given herein as meeting both statutory requirements and the minimum standards of State and Federal due process.
The court further finds that the names and whereabouts of said defendants are not known and therefore no mailing was required.
The court further finds that it is more likely true than not true that J.C. Wails; L.M. Pratt s/p/a Louis M. Pratt; Charles E. Vail; Mary Vail; Mildred Vail Wagers; E.E.Vail; Edward E. Vail; Robert L. Vail; Emma Roberts, formerly Vail, Marion Egner Beitzell, s/p/a Marion Egner Beitzell; Albert E. Beitzell, s/p/a Albert Earnest Beitzell; Edmond R. Doak, s/p/a E. R. Doak, s/p/a Edmond Rufus Doak; G.N.Vail; Josephine Vail Doak; Louise Egner Huebner; Camille Egner Washburn; and George L. Vail, are deceased and died more than 10 years prior to the filing of this journal entry. There is no evidence that a court of competent jurisdiction has administered upon their estates wherein the death of the decedents was determined and wherein it was determined who are the names or persons entitled to participate in the distribution and ownership of the decedents’ interest in the following:
The Northwest Quarter of the Northwest Quarter of Section 20, Township 8 North, Range 2 West, Cleveland County, Oklahoma, The court finds that the plaintiff acquired an undivided 108/1134 interest in the
above property by virtue of three Cleveland County Treasurer resale tax deeds recorded Book 2842 at page 299, Book 2842 at page 301, and Book 2842 at page 303, respectively, in the records of the Cleveland County Clerk. The court further finds that the reference to 2.60 acres in the three deeds is not accurate and that the legal description is more correctly described in each deed as an undivided 36/1134 interest in the Northwest Quarter of the Northwest Quarter of Section 20, Township 8 North, Range 2 West, Cleveland County, Oklahoma.
The court further finds that John D. Potts and Andrew John Potts, Jr. acquired an undivided 788/1134 interest in the above property by virtue of a series of mesne conveyances from the heirs of George N. Vail that culminated in deeds to their father, John Potts Sr., recorded in Book 330 at page 357 and Book 562 at page 14 in the office of the Cleveland County Clerk, and then conveyed to them in Personal Representative’s Deed recorded in Book 2087 at page 571.
The court further finds that Walter E. Vanderburg individually and as Administrator of the Estate of Barbara Marie Vanderburg, acquired an undivided 3 0/162 interest in the above property by virtue of a series of mesne conveyances from the hens of George N. Vail that culminated in a deed recorded in Book 356 at page 222 in the office of the Cleveland County Clerk. During the pendency of the action Walter E. Vanderburg conveyed his interest in the subject property to Walter E. Vanderburg, Jr., retaining a life estate in himself.
The court further finds that Robert Joseph O’Conner acquired an undivided 4/162 interest in the above property conveyed to him in Book 3008 at page 35 through a series of mesne conveyance through Josephine Vail Doak and Edmund R. Doak, and that during the pendency of this action he deeded his interest to Welling Properties, LLC, who then deeded the surface interest in the property to Walter E. Vanderburg, Jr. subject to life estate of Walter E. Vanderburg, said deed being recorded in Book 5326 at page 655 in the office of the Cleveland County Clerk.
The court further finds that, by agreement of the parties, plaintiff shall, for the total sum of $6,000 to be paid by the Defendants, Potts and Vanderburg, quit claim all its undivided 108/1134 interest in the surface rights in the subject property as follows: to John D. Potts and Andrew John Potts, Jr., an undivided 72/1134 interest, and to Walter E. Vanderburg Jr., with life estate in Walter E. Vanderburg, an undivided 36/1134 interest.
The court further finds that an undivided 860/1134 interest in the surface rights in the subject property is quieted in John D. Potts and Andrew John Potts. Jr., subject to the delivery of the deed from plaintiff referred to above.
The court further finds that upon delivery of the deed from plaintiff set forth above, an undivided 274/1134 interest in the surface rights in the subject property is quieted in Walter E. Vanderburg Jr. subject to life estate in Walter E. Vanderburg.
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the court that J.C. Wails; L.M. Pratt s/p/a Louis M. Pratt; Charles E. Vail; Mary Vail; Mildred Vail Wagers; Peter Beitzell; Margarehtta Beitzell, s/p/a Margarehtta Beitzell; E.E.Vail; Edward E. Vail; Robert L. Vail; Emma Roberts, formerly Vail, Marion Egner Beitzell,s/p/a Marion Egner Beitzell; Albert E. Beitzell, s/p/a Albert Earnest Beitzell; Edmond R. Doak, s/p/a E.R. Doak, s/p/a Edmond Rufus Doak; G.N.Vail; Josephine Vail Doak; Louise Egner Huebner; Camille Egner Washburn; and George L. Vail, and their Unknown Heirs, Successors and Assigns, have no right, title, lien, estate, encumbrance, claim, assessment or interest, either in law or in equity, in and to the surface rights in the above described real property.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the court that plaintiff has a good and sufficient title by virtue of resale tax deeds, provided however, that the legal description in each deed shall be corrected to remove the reference to 2.60 acres and instead shall be described as an undivided 36/1134 interest in the Northwest Quarter of the Northwest Quarter of Section 20, Township 8 North, Range 2 West, Cleveland County, Oklahoma.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED by the court defendants, John D. Potts and Andrew John Potts, Jr., and Walter E. Vanderburg shall pay to plaintiff the sum of $6,000 and plaintiff shall quit claim all its undivided 108/1134 interest in the surface rights in the subject property as follows: to John D. Potts and Andrew John Potts, Jr., an undivided 72/1134 interest; and to Walter E. Vanderburg Jr., with life estate in Walter E. Vanderburg, an undivided 36/1134 interest.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon delivery of the deeds set forth above, an undivided 860/1134 interest in the surface rights in the subject property is hereby quieted in John D. Potts and Andrew John Potts. Jr., an undivided one-half interest each.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that upon delivery of the deed set forth above, an undivided 274/1134 interest in the surface rights in the subject property is hereby quieted in Walter E. Vanderburg Jr. subject to life estate in Walter E. Vanderburg and subject to completion of administration proceedings.

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