Burnam v. Blocker

• Court: Texas Civil Court of Appeals
• Writing for the Court: CULVER
• Citation: Burnam v. Blocker, 247 S.W.2d 432 (Tex. Ct. App. 1952)
• Decision Date: 07 March 1952
• Docket Number: No. 15326,15326
• Parties: BURNAM et al. v. BLOCKER et al.

Page 432

247 S.W.2d 432

BURNAM et al. v. BLOCKER et al.

No. 15326.

Court of Civil Appeals of Texas, Fort Worth.

March 7, 1952.

Rehearing Denied April 4, 1952.

W. E. Fitzgerald, Wichita Falls, for appellants.

Penix & Penix, of Graham, L. D. Eakman, of Bowie, Nolen L. Sewell, of Decatur, and Stegall & Stegall, of Fort Worth, for appellees.

CULVER, Justice.

This suit was brought by appellants, the heirs of J. J. Burnam and wife, for title to an undivided one-half of the mineral estate in a tract of 85 acres in Wise County. A 'take nothing' judgment was rendered in favor of appellees, and appellants appeal.

In 1921, J. J. Burnam and wife conveyed an 85 acre tract to one Jackson and reserved in the deed an undivided one-half interest in the minerals. As a part of the consideration a note in the sum of $1,200, secured by vendor's lien, was executed. Burnam transferred the note and lien to Charles R. Daniel, who later brought suit on the note and for foreclosure of the lien against both Jackson and Burnam. The land, under execution, failed to sell for a sufficient price to satisfy the judgment Thereafter, on November 6, 1925, execution on the judgment to satisfy the deficiency was levied on the mineral interest which had been retained by Burnam. The sheriff made his return showing a levy on one-half of the oil, gas and other minerals under the 85 acres of land and notice of sale was published. After the sale, the sheriff executed his deed to Daniel, describing the property as follows: 'All of the estate, right, title and interest which the said J. J. Burnam had on the 5th day of January, 1926 or at any time afterwards, of, in and to the following described land situated in Wise County, Texas, to-wit: 85 acres of land out of the J. H. Williams 160 acre survey.'

It is contended by appellants that the foregoing description in the sheriff's deed did not specify the mineral interest which had been levied on and therefore was insufficient to pass the title to said mineral interest.

We have two estates created out of this tract of land, one being the one-half undivided mineral interest retained by Burnam in his deed to Jackson, and the second estate consisting of all of the surface and remaining one-half of the minerals. The sale under the foreclosure proceedings fixed the title in the latter estate in Daniel and the only interest which Burnam owned was the mineral estate which he had theretofore retained. The proceedings in levying upon this estate to satisfy the deficiency judgment were regular in all respects except as to the description contained in the sheriff's deed, if that be an irregularity, no other complaint being made by the appellants, the sufficiency of the description in the deed being the sole point raised in this case.

The requisites of a sale under execution seem to be a valid judgment, a proper levy, sale, and payment of the consideration. It is held that defects in a sheriff's deed do not destroy the purchaser's interest acquired under the sale. Logan's Heirs v. Pierce, 66 Tex. 126, 18 S.W. 343. Even in the absence of a sheriff's deed an action of trespass to try title will be supported. The giving of a deed by the sheriff, being a ministerial act, is not essential to investiture of title. Hollums v. Hicks, Tex.Civ.App., ...