*1 ap-. upon the the burden placed answer thereby- partnership, prove the pellee to and' appellant, liability upon fastening to maintain it had appellant,' fact that mere The suit. pre-, Rule, is denied under of ac- cause appellee’s defense sent his way in-no is, denial, is tion, general copartner with was a that he admission permit to had a appellee Pool, or that State; and, event in no this do business in judg- have entered court trial support of the evidence ment without appellee’s cause affirmative elements action, evidence is —which give The Rule does record. affirma- waive the authority to court trial judgment, in enter prerequisites and tive necessary proof. absence is, therefore, re- court trial ment for new trial cause remanded
versed and Snowden; appellant Homer as to the Ray Pool as to the
is undisturbed. remanded.
Reversed et al. HENRY
CLINE 14263.
No. Appeals Dallas. Texas. Civil
Court of 12, 1951.
Jan. April 13,
Rehearing 1951. Denied *2 George, &
Alexander, Thuss, Johnson Passman, appellant. Dallas, for Gray, Thomas, Bowyer, Jaffe, Crozier & Dallas, appellees.
YOUNG, Justice. brought surviving suit This Cline, of Mrs. Anna brothers sisters V., J., Henry, R. E. and H. deceased, A. Whorton, Lucy Bowen and C. Mrs. N. Cline, widows, against C. husband, for of a cer- surviving land, tain ten-acre tract of Survey, County; Dallas Read C. John also one-half of accounting by defendant the consideration received on about from sale Defendant Cline acres of said land. 2½ plaintiffs any interest denied that had land, claiming whole thereof hence not court, partition. On trial against ment was rendered an undivided one-half $2,477.82 property; said fixing thereon un- defendant’s including divided in the ten-acre tract sum; secure ordering of defendant’s in satisfaction of lien half paid by if not defendant with- days. prop- Aforesaid erly before us for review. following appear facts July 26,
dispute: On
1915 W. C. Cline
wife,
Cline, purchased
Anna
66 acres
using that
Survey,
since death
has made
wife he
Read
C.
out of said John
permanent
improvements
valuable and
as their home-
occupying the
he,
the ten
$5,500,
acres
to extent
stead until her death
use
being
to so
thereon
*3
survivor,
property
continued
as
has since
$6,500;
Cline
of the
and
reasonable value of
In December
occupy
and
it.
separate
improvements
that
and
making
Anna as her
such
conveyed
wife
his
to
suit,
deed,
of
part
executing
gravel
the
sand and
ten acres
property the
couple shortly
acres;
believed
the
himself the sole owner and did
the aforesaid 66
plaintiffs
on the smaller not
that
or
know
owned
claimed
house
building
thereafter
occupying
any
it
No
or
as
and
the
sand
tract, using
death;
appellant
gravel
the deed
has been removed under
her
until
and
present
use
to
continuing such
Gifford-Hill
the
time.
up to
survivor likewise
died
October
Anna Cline
occupancy.
The
findings
trial court made
of fact and
issue, leaving
and without
intestate
things,
law; among
conclusions of
other
five
the
brothers
law
only
her
at
heirs
finding
not aban-
“That W.
Cline has
C.
and
named
above
sisters
and
ten
right
doned his homestead
said
inheriting
un-
an
husband;
the latter
acres, except
plaintiffs’ claim for
as to
in said ten-acre
divided one-half
plaintiffs’
the
the
of
interest,
other half
appellees the
tract and
proportionate part
and
gravel
it
of the
rights
Cline.
of
subject
the
that
partition,
is not now
and
in con-
Cline
the matter
of said
W. C.
of the
of the use
April
value
On
paid,
$6,250 cash
hand
the
property,
question
of
sideration
of
conveying to Gifford-Hill
and the division of
property
executed a deed
the
should
and
stone
Inc.,
sand, gravel,
otherwise
Company,
postponed
all
be
the home-
right
under
of
kindred material on and
a certain
W. C. Cline is terminated
land,
same
of
or
being
tract
lo-
death
abandonment.”
dJio-acre
Conclusions
* * *
part
extent of 2.458
of
law in
“(1)
acres on
recited:
cated
the
plaintiffs,
plot;
Henry,
al,
with
on
the
part
that
E. V.
et
and
gravel, etc.,
defendant,
Cline,
the
grantee
remove
W.
are
joint
within
C.
years;
providing:
the deed further
owners
tenants
common
ten
Grantor,
described,
consideration
acres above
plaintiffs
“And for
jointly
representatives
equally
himself,
and
owning
his
and
as-
undivided one-
Grantee,
half and the
signs, covenants to and
its
W. C.
owning
defendant
Cline
* * *
assigns,
and
that he
an undivided
successors
is the
one-half.
that
plaintiffs
rights
have judgment against
lawful owner of
should
good
conveyed
$2,477.82,
hereby
and has
the defendant
same;
convey
per
per
that
at
the rate
the same
of six
cent
annum
sell
encumbrances
from
free from
and are no
and that
homestead,
part of
that he stead
C. Cline is
Grantor’s
subordinate
plaintiffs
the title
will warrant
defend
thereto to
lawfully
persons
gravel,
whomsoever
that he
against all
has
any
claiming
claim the same or
waived
abandoned his
or
part
thereto,
thereof.”
with reference
that
lien or
should be fixed
received
amount
Cline
The total
to secure
from the ten
gravel
acres in
sand
judgment,
and that
strip),
unless
(2.458
$4,955.64,
question
paid
amount of
($2,477.82)
which
claimed
into
half of
Registry
ninety
has not
whom Cline
this Court within
plaintiffs to
accounted
days
Appellant
judgment,
part
date of the
thereof.
testi-
or-
satisfy
be
signing
time
deed to the
of sale
issued
that at
der
should
fied
* * *
'(3)
judgment.
he did not
that
know the
sand and
adjustment
equities
recited
of other
between
instrument
homestead;
and the
no
defendant
described was
as the
its homestead char-
retains
postponed until
otherwise
true,
by-
whether the fee title
This is
terminated
acter.
Cline is
W. C.
interest of
property belongs to the
to the homestead
abandonment.”
death or
separate
spouses,
either
estate of
appeal are based
complaints on
community
or to their
estate.
spe-
conclusions; or
findings and
above
cotenancy
has
“An essential element
is the
court
stated,
cifically
trial
Consequently
possession.
holding- that
(1) in
erred
relationship
not exist
cotenancy
does
in the deed
by recitals
remaindermen,
nor between them
among
waived
strip had
on the 2%-acre
*4
in the and the
tenant.
this is true where
And
homestead
his
abandoned
life
un
tract;
the
tenant
additionally
that same
life
owns
whole of said
Sparks v.
of divided interest
in the fee.”
to the claims
thereby subordinated
was
622,
Robertson,
immediate
203 S.W
Tex.Civ.App.,
to an
.2d
entitling them
plaintiffs,
(writ ref.).
(Exiphasis
623
ours.)
de-
of the
one-half
accounting for
rendering
sale;
in
(2)
such
from
rived
(2)
our
50 of
State
Art.
sec.
against
lien and
fixing a
Constitution,
Ann.St., provides:
Vernon’s
his
interest
one-half
defendant’s
family
be,
“The homestead of
shall
to se-
and to said
in
stead
protected
sale,
forced
for
hereby
is
from
payment of
in
cure
pur-
except
the
payment of all debts
ordering
his
; and in
ment
* *
*
thereof,
money
taxes
chase
in satisfaction
right sold
thereon,
material
due
or for work and
used
(3) in render-
judgment;
lien
of such
constructing
thereon
in-
against
ing judgment
* *
See also arts. 3501 and
$2,477.82
April
from
sum of
terest on
3832 declares:
Ann.Civ.St. art.
Vernon’s
28, 1948.
following property
“The
shall be reserved
points
foregoing
argu-
Under
exempt
every family,
from attachment
appellant
tacitly
support,
admits
ment
every
species of
or execution and
other
right, appel-
subject to his homestead
that,
debts, ex-
forced sale fox
the land in
co-owners of-
contro-
lees
cept
provided:
as hereinafter
establishing
are entitled
versy,
”
* *
family.
“1.
homestead of the
in the
to a
construing
provisions
In
these
of the Con
deed;
1948
same in-
statutes,
stitution and
the courts have uni
prop-
corpus
jointly
owned
volving
that,
formly held
inasmuch- as the home
acres;
of the
issues
erty to extent
2½
expressly protected
from
stead
forced
primary question of
narrowing
thus
sale,
leading
no
sale is ever valid
appellant
presently
whether
(1)
whether existing by
and,
proceeds,
for such
required
account
contract, statute,
judicial
virtue of
de
judgment for one-half
consequence, to a
; and that a
cree
forced
the home
by lien and
($2,477.82) secured
thereof
stead in satisfaction
aof
debt of
char
against his undivided
right of foreclosure
except
provided by
acter
the Constitu
(notwithstand-
ten-acre tract
in the
(purchase money,
due,
tion
taxes
or for
;
claim)
(2) to interest
ing the homestead
work
used in constructing
and material
recovery
date
the 1948
from
such
on
improvements thereon)
22
is void.
Tex.
deed.
17, 18;
Jur.,
7, pp.
197, pp. 282-3;
sec.
sec.
Bank,
National
114
Crowder v. Union
Tex.
seen,
facts ma
already
As
375;
Dodson,
Tucker v.
261 S.W.
Tex.
disputed";
controversy are not
to this
terial
Civ.App.,
Schmid,
245 S.W.
Atkins v.
par
all
contention of
applicable
the law
Tex.Civ.App.,