Opinion
No. 4001.
April 16, 1931. Rehearing Denied April 23, 1931.
Appeal from District Court, Henderson County; Ben F. Dent, Judge.
Suit by A. A. Thomas and others against K. Marmar and others. From the judgment, plaintiffs appeal.
Affirmed.
By a deed dated January 30, 1923, W. A. Dyer and his wife conveyed 371 acres of the C. M. Beason survey in Henderson county to appellants A. A. Thomas, Clint Wideman and Cole Wideman. According to recitals in the deed, the consideration for the conveyance was $500 in cash, eight promissory notes for $120 each, made by said Thomas and Widemans, payable to said W. A. Dyer or order November 1, 1923, 1924, 1925, 1926, 1927, 1928, 1929, and 1930, respectively, secured by a vendor's lien retained on the land, and the assumption by said Thomas and the Widemans of the payment of a promissory note for $1,000 made by said Dyer to the Federal Land Bank at Houston, which said note was secured by a trust deed on the land in favor of said bank. By a deed dated April 7, 1923, said Thomas and the Widemans retaining all oil, gas, and mineral rights in, on, and under 150 acres off the south end there-of, conveyed the 371 acres to Ruby Hammock. According to recitals in this deed the consideration for the conveyance was Mrs. Hammock's three promissory notes for $300 each, payable February 1, 1924, 1925, and 1926, respectively, secured by a vendor's lien retained on the land, the assumption of the payment of said note for $1,000 held by said Federal Land Bank, and the assumption of the payment of said eight notes for $120 each made by Thomas and the Widemans to Dyer. By a deed dated March 29, 1924, the Hammocks conveyed the 371 acres to Leander F. O'Neal, Delmar M. O'Neal, and George D. Garrett. According to recitals in this deed, the consideration for the conveyance was $2,000 in cash, two promissory notes for $2,000 each, dated March 29, 1924, made by the O'Neals and Garrett and payable January 1, 1926, and 1927, respectively (at the request of the Hammocks) to Mrs. Lou Ida Menefee, six promissory notes for $1.000 each made by said O'Neals and Garrett and payable January 1, 1928, 1929, 1930, 1931, 1932, and 1933, respectively, to the order of Mrs. Ruby Hammock, and the assumption by the O'Neals and Garrett of the payment of $2,860 "as shown in the deed from A. A. Thomas to Mrs. Ruby Hammock." By a trust deed of February 28, 1924, the O'Neals and Garrett conveyed the 371 acres to R. L. West as trustee, to secure the payment of the two notes for $2,000 each payable to Mrs. Lou Ida Menefee and the six notes for $1,000 each, payable to Mrs. Ruby Hammock's order. It appeared that one of the eight notes for $120 each made by Thomas and the Widemans to W. A. Dyer was paid and the other seven and the superior title in Dyer as the vendor of the land on January 23, 1925, were assigned and conveyed by said Dyer to K. Marmar. It appeared, further, that one of the three notes for $300 each made by Mrs. Ruby Hammock to Thomas and the Widemans was paid, and that the other two and the lien securing same on April 30, 1924, were assigned by said Thomas and the Widemans to said K. Marmar. It appeared, further, that the two notes for $2,000 each made by the O'Neals and Garrett to Mrs. Lou Ida Menefee and the six notes for $1,000 each made by said O'Neals and Garrett to Mrs. Ruby Hammock were assigned by one R. B. Hoover to the Security National Bank of Lawton, Okla., to secure indebtedness to that bank. It appeared, further, that K. Marmar by a suit he commenced in Henderson county (at a time not shown in the record) against the Hammocks, the O'Neals, and Garrett, and Mrs. Lou Ida Menefee sought to recover judgment against the O'Neals and Garrett for the amount ($1,067.20) of said seven notes for $120 each and the amount ($770) of said two notes for $300 each, assigned to him as stated above, and to foreclose the liens securing said notes, subject only to the lien of the note for $1,000 held by the Federal Land Bank of Houston, as against said O'Neals and Garrett, the Hammocks, and Mrs. Lou Ida Menefee. By a judgment rendered August 25, 1925, in the suit referred to, a recovery of $1,827.20 was had by Marmar against the O'Neals and Garrett as prayed for, and foreclosing the liens existing to secure the amount as against said O'Neals and Garrett, and declaring said liens to be superior to any held by Mrs. Ruby Hammock, Mrs. Lou Ida Menefee, and the Security National Bank of Lawton, Okla., which had become a party defendant in the suit, and subject only to the lien of the Federal Land Bank of Houston in the sum of $1,000. At a sale made by virtue of an execution issued on said judgment, said K. Marmar was the purchaser, and the land was conveyed to him by a deed made by the sheriff January 13, 1926. Immediately thereafter Marmar took possession of the land and continued in possession thereof to the trial of this suit. By an instrument dated October 8, 1929, Marmar leased the land to the Gulf Production Company, authorizing it to drill thereon for oil, gas, etc., and, finding such minerals thereon, to appropriate all, except specified parts there-of retained by Marmar, to its own use. By an instrument dated October 26, 1929, Marmar conveyed an undivided one-half of the minerals on the land to R. T. Sullins, who by an instrument dated said October 26, 1929, conveyed an undivided one-fourth of such minerals to the Sun Oil Company, and by an instrument dated October 29, 1929, another one-fourth of such minerals to the Eighteen Petroleum Company. The instant suit was by said Thomas and the Widemans, as plaintiffs, against said K. Marmar, as defendant. It was to try the title to and recover possession of "the minerals in and under the South 150 acres" of the 371-acre tract retained by them when they conveyed the 371 acres to Ruby Hammock as hereinbefore stated. The answer of Marmar consisted of a general demurrer, general denial, and plea of not guilty. The Gulf Production Company, Sun Oil Company, and Eighteen Petroleum Company were made parties defendant, it being alleged that they were claiming interests as lessees in the land. The appeal is from a judgment denying Thomas and the Widemans a recovery or anything and in favor of the parties defendant for costs.
Wynne Wynne, of Athens, for appellants.
Gentry Gray, of Tyler, John Broughton and Joe S. Brown, both of Houston, Sam McCorkle, of Mexia, and T. L. Foster, J. W. Timmins, and Martin Row, all of Dallas, for appellees.
In the statement above it appears that both appellants Thomas and the Widemans and appellee Marmar claimed to own the title in W. A. Dyer January 30, 1923, to the minerals in controversy — appellants under a deed to them of that date from Dyer, and appellee under a deed to him dated January 13, 1926, from the sheriff of Henderson county. A part of the consideration for said deed to appellants was eight promissory notes, for $120 each, made by appellants to said Dyer, payment of which was secured by a vendor's lien therein and in his said deed expressly retained by Dyer. One of the eight notes was paid. The seven unpaid and the lien securing same, and Dyer's superior legal title to the land as the vendor thereof, were assigned and conveyed by Dyer to Marmar. Under that state of facts, Marmar, as the purchaser of the land at the sale under the judgment obtained in the foreclosure suit, became the owner of the superior legal title remaining in Dyer until the notes made to him by appellants were paid. The notes were never paid. Therefore, we think, the trial court did not err when he denied appellants the recovery they sought. White v. Cole, 9 Tex. Civ. App. 277, 29 S.W. 1148: Howell v. Townsend (Tex.Civ.App.) 217 S.W. 975; Van Valkenburgh v. Ford (Tex.Civ.App.) 207 S.W. 405, 416; Wier v. Yates (Tex.Civ.App.) 237 S.W. 623; Thompson v. Robinson, 93 Tex. 165, 54 S.W. 243, 77 Am.St.Rep. 843; Ufford v. Wells, 52 Tex. 612; Stone Land Cattle Co. v. Boon, 73 Tex. 548, 11 S.W. 544.
Appellants' contention to the contrary of the conclusion reached by the court below, which we think was a correct one, seems to be predicated, mainly, on the holding in Gardener v. Griffith, 93 Tex. 355, 55 S.W. 314. In that case, it appeared the administrator of C. Rusk sold and conveyed 425 acres of land belonging to Rusk's estate to W. H. Harris. By virtue of a judgment in favor of the administrator, foreclosing a mortgage lien created by Harris on the 425 acres, a part, and only a part, thereof was sold. The suit was by a purchaser from Harris of a part of the 425 acres not sold under the foreclosure decree. It was against heirs of C. Rusk. The purchaser claimed that the effect of the foreclosure proceedings was to affirm the contract of sale and vest in Harris, the vendee, the legal title to the unsold part of the 425 acres. The Rusk heirs, on the other hand, claimed that the legal title to the land not sold under the judgment was in them. The contention of the purchaser was upheld by the Supreme Court. As we understand it, that case is so unlike this one on its facts as to render the holding there without controlling effect here. There the foreclosure was on the title of the mortgagor, while here it was on the superior title in the vendor. Van Valkenburgh v. Ford, supra; Wier v. Yates, supra. There the part of the land in controversy was not sold under the judgment, while here the entire tract, including the minerals in controversy, was sold.
Whether it appeared that appellants had rights they were entitled to enforce in a proper proceeding, but could not enforce in a suit of trespass to try title, and what would be proper proceedings to that end, are not questions we are called upon to determine and we will not undertake to determine them.
There is no error in the judgment. Therefore it is affirmed.