Gone Phishin’

I have a couple of favorite web hosting companies. One is the Fine Folks at TextDrive, another is the Happy Folks at DreamHost. Periodically, and perhaps with greater frequency as time marches on, I’m sorely tempted to hang up the shingle and take up “webmastering”. Then, I might have the time to spend the amount of time I’d like to spend reading the newsletters and blogs these hosters put out. Generally, they are both entertaining and educational in more ways than one. Alas, I barely find the time to skim their offerings.

The latest DreamHost newsletter was, however, very brief, so decided I had some time to click the link to the DreamHost Blog and check it out. The latest article was entitled “Phishing Phor Phishers“. It could be said it has nothing to do with oil and gas law, although some might say phishers and oil promoters are cut from the same cloth. Here, I’m obliged to interpose that I’ve assisted several oil clients with the documentation for private offering drilling and development programs, all of which were entirely above board and legit. Still, oil people don’t have a reputation that would be considered much of an improvement over that of lawyers or car salesmen (I was, through social training, about to write “salespersons” but, on reflection, I’ve never really heard anyone suggest that a female car seller was dishonest; the typical slimy car salesman is always pictured as a male).

The blog article and comments thereon did touch upon “law” topics, though, so it’s not really off-topic for a lawyer’s blog. One thing I found amazing was the number of comments to this article, in less than a day. What a readership! Ordinarily, I find it pretty much impossible to wade through dozens upon dozens of comments following a popular blog article. In this case, however, the number of useful, insightful, or entertaining comments held my attention to the end (though I’ll admit skimming a few as I gained momentum). So, for anyone who’d like an entertaining, useful and educational read on phishing, there it is!

I’ve mentioned The Scout Report in an earlier article. This time, I’ve covered the current issue over at the Chappells Blog.

Vindication

Back in August I wrote about A Really Brief Brief, in a case I appealed from the District Court of Douglas County, Kansas. The Court of Appeals handed down its opinion today. Ah, sweet vindication! I have to admit, the ruling by the district judge had me wondering at times whether I had lost my mind, and at other times whether there was any hope for the rule of law. Apparently, my mind is okay, and there is some hope. And yet, my clients have spent nearly $10,000.00 that they ought not have had to spend. Justice is available for a price, to those who are able to pay for it.

A Really Brief Brief

Yesterday I posted the “nature of the case” paragraph of a brief I was working on. The finished brief is 25 pages. It occurred to me, however, that it might be shortened a bit. So, what follows is an “arguments and authorities” section for a truly brief brief.

In Hartford Fire Insurance Co. v. Unites States of America, 1986 U.S. Dist. LEXIS 27338, (D.C. Kansas 1986) the federal court set forth a brief summary of Kansas law on the recording of mortgages and deeds as follows: All deeds, mortgages and assignments of mortgages must be recorded to impart notice to subsequent purchasers and mortgagees. K.S.A. 58-2222. No deed, mortgage or assignment of mortgage is valid, “except between the parties thereto, and such as have actual notice thereof, until the same shall be deposited with the register of deeds for record.” Id. at 58-2223. Thus, when a subsequent purchaser buys property for value and without notice of a prior conveyance or mortgage, the subsequent purchaser has priority over the earlier purchaser or mortgagee. E.g., Edwards v. Myers, 127 Kan. 221, 273 P. 468 (1929); Penrose v. Cooper, 88 Kan. 210, 128 P. 362 (1912). The recording of deeds, mortgages and assignments of mortgages acts as constructive notice to the subsequent purchaser. See, generally, Luthi v. Evans, 223 Kan. 622, 576 P.2d 1064 (1978). If no record is made or if the record is ineffectively made, the later purchaser takes free unless he had actual knowledge of the mortgage or prior conveyance.

It is generally understood among the bar that few things in the law are black and white. Yet, some legal principles come close, and if there is any one principle that can be said to come closest to black and white, it is this: In Kansas, a bona fide purchaser takes title free of an unrecorded interest. In re: Cascade Oil Company, Inc., Debtor, et al., 65 B.R. 35; 1986 Bankr. Lexis 5730 (July 8, 1986), citing In re Southworth, 22 B.R. 376 (Bankr. D. Kan. 1982); Smith v. Worster, 59 Kan. 640, 54 P. 676 (1898); Stalcup v. Stalcup, 137 Kan. 141, 19 P.2d 447 (1933); K.S.A. 58-2223. Perhaps even more fundamental is that in a contest between two recorded instruments, the one that’s recorded first prevails.

The decision of the district court should be reversed, the court should be directed to enter judgment for the appellants as bona fide purchasers for value of the 32.7 acres, mineral interest (including gas) and fixtures thereon (gas well), free and clear of any right, title or interest of the appellee, and the matter remanded for disposition of the remaining counter-claims.

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