188 S.W.2d 915 | Tex. App. | 1945
This is an action of trespass to try title and for damages, brought by Mrs. Bertha Neyland Hicks and 103 other persons as plaintiffs against the Southwestern Settlement Development Corporation and others as defendants. Plaintiffs are appellants here. They allege fee title to the Adolpho Sterne league, abstract No. 32, in Tyler County, Texas; and after making the formal allegations of trespass to try title, plead the three, five, ten and twenty-five year statutes of limitation. They allege a disseizin as of and since January 1, 1942, to their damage in the sum of $50,000, and also allege the wrongful production from the land and appropriation by defendants of oil and gas to the value of $760,000. Respecting said oil and gas, plaintiffs "ask that the court require the defendants to file herein a statement, under oath, showing the amount of oil and gas" so produced, removed, and sold by them or appropriated to their own use. Plaintiffs pray judgment for title to and possession of the land, the value of said oil and gas and for general relief.
The defendants filed separate but apparently similar answers, excepting the Kirby Lumber Corporation, which disclaimed. The answer of Southwestern Settlement Development Corporation, on the stipulation of the parties, is to be taken as the answer of all defendants. This instrument set up in due order a plea in abatement, various special exceptions, a general denial and a plea of not guilty, and various special pleas alleging the three, five, ten and twenty-five year statutes of limitations. Defendants are appellees here. They, as well as appellants, are before us on amended pleadings.
By order entered December 4, 1943, the trial court sustained the pleas in abatement, and appellees' special exception No. 1; and upon appellants' refusal to amend dismissed the suit by order of November *918 20, 1944. This appeal is taken from the order of dismissal.
It is unnecessary at this point to discuss the special exceptions. The gist of the plea in abatement is that there are tenants in common with appellants who are not, but of right ought to be joined in this suit. Appellees allege that appellants claim title as heirs of Tom Collier; that Tom Collier died intestate in 1900 and that numerous other heirs of Tom Collier, who are named, are not parties to this suit. They also allege that the heirs who have not been joined constitute necessary parties and say that they "are jointly interested in the alleged claim of title asserted by the plaintiffs named in said petition and should be made parties to this cause in order that (defendants) be not vexed and harassed by numerous suits and claims arising out of the same claim of title to the same land."
The briefs reflect the facts. Appellants say: "For the purpose of the hearing on the pleas in abatement, it was agreed that plaintiffs were suing for the land as heirs of Thomas Collier, Deceased, except Mrs. Hicks, who claimed to have inherited her interest from her mother who was the surviving wife of Thomas Collier, also deceased; that Thomas Collier died about the year 1900; and that the 574 persons named in the pleas in abatement were also heirs of Thomas Collier." (Pages 3, 4, Appellants' Brief.) This is the substance of appellees' case on the facts. The qualification respecting Mrs. Hicks is of no significance. The parties nowhere make any distinction between ownership of damages and of land, and they evidently regard the claims for damages as incidents of the title asserted by appellants.
It accordingly appears that appellants profess to have title in fee simple to undivided interests in the land for which they sue, that appellants likewise profess to own in their own right and as an incident of their title to the land, undivided interests in the damages alleged, which are thus the equivalent of their interests in the land, that appellants have numerous tenants in common in their claim of fee title to the land, and in the claims for damages, who are not parties to this action, and the question is whether appellees are entitled on the peculiar facts of the record before us to require that these omitted tenants in common be made parties to this action. It is our conclusion that appellees are not so entitled, and that the trial court erred in sustaining the pleas in abatement and in dismissing the suit.
(A) It was the established rule of decision in this state prior to the adoption of the present Rules of Civil Procedure that, in an action of trespass to try title, a tenant in common could recover the entire tract from one who had no title. 11 Tex.Jur. 500 (Sec. 57); 41 Tex.Jur. 472 (Sec. 17); Padgett v. Guilmartin,
The tenant in common had this right only against one without title. Not only was he required to show title to an interest in the land; the burden rested upon him to show that the adverse party had no title, Davidson v. Wallingford,
Accordingly, in action of trespass to try title wherein plaintiff only prayed for judgment for the land, and under the allegations in the petition the defendant had no title, as here, it was held that plain *919
tiff's omitted tenant in common was not a necessary party, Walker v. Read,
It is apparent that this rule of decision evidenced the substantive law defining the incidents of tenancy in common. A tenant in common could maintain alone an action of trespass to try title against one without title because tenants in common are separately seized and there is no privity of estate between them. May v. Slade,
For this reason, if for no other, we conclude that this rule of decision has not been set aside or limited by the present Rules of Civil Procedure. It is especially provided that said Rules shall not be construed to enlarge or diminish any substantive rights of any parties to any civil action, Rule 815; and the right of a tenant in common to recover the entire tract from one without title is a substantive right. Rule 39 is not applicable.
This rule of decision is to be applied here, as it was in Carley v. Parton,
(B) The right of a tenant in common to recover the entire tract from one without title was no more firmly established under our former practice than was the defendant's right to require, in an action for damages for injury to property, that all tenants in common owning such property be made parties to the suit. The rule of decision declaring this right runs back at least as far as May v. Slade,
The same rule has been stated and applied in actions by part owners of causes of action for damages for personal injuries. Taylor v. Catalon,
Accordingly, nonjoinder of all tenants in common in such an action was matter for a plea in abatement by defendant, May v. Slade,
However, it was required that nonjoinder of tenants in common be raised in limine. Otherwise, the right to require joinder of the omitted tenants in common was waived. Gulf, C. S. F. Ry. Co. v. Cusenberry,
But to his proportionate share the plaintiff's recovery was limited. 11 Tex.Jur. 503 (§ 58); Galveston, H. S. A. Ry. Co. v. Stockton,
The controlling reason in this state for this rule of decision, authorizing the defendant, if he acts in due time, to require the joinder of all tenants in common in actions for damages, has been the desire of our courts to avoid a multiplicity of suits against the defendant. Foster v. Gulf, C. S. F. Ry. Co.,
Thus from the foregoing it is apparent that the rights of the various tenants in common to recover damages for injury to the property owned in common are technically several as distinguished from joint; that each tenant in common is only entitled to the possession of his own share of the damages; that the presence of all tenants in common is not indispensable to the rendition of judgment for damages in favor of one or less than all; and that the determination of the plaintiff's proportionate share of the damages and the adjudgment thereof to him despite the absence of his tenant in common constitutes relief which can be granted, and which, in fact, seems to have been regarded by our courts as if it were as normal and customary a form of relief as the very right of a defendant to insist upon joinder.
(C) It is a question on this appeal whether the rule of parties which governs actions for damages for injuries to land applies to an action like the present one, where plaintiffs sue for the title as well as for damages. We will state our conclusions.
First: Appellants say that since they can maintain an action of trespass to try title against one having no title, without the joinder of their tenants in common, they can, apparently as an incident of the suit, recover damages resulting from the trespass alleged in their petition, or if not all of the resulting damages, then at least their proportionate share. They cite Whitaker v. Allday,
This contention is denied. In Whitaker v. Allday, supra, the court held it no error to award the plaintiff tenant in common his proportionate share of the value of the use and occupation of the land; but the particular objection overruled is not shown. The decision brings to mind authorities cited above, establishing the right of the tenant in common, in a simple action for damages, to recover his proportionate share where the defendant waives his right to require joinder of omitted tenants in common. So regarded, the decision in Whitaker v. Allday is not exceptional. There are other cases where the appellate courts have affirmed judgments for the plaintiff's proportionate share of the damages in the combined action for title and damages, usually without comment on this part of the recovery. Biencourt v. Parker,
In none of these cases did the courts have before them the question, whether defendant, if he acted at the proper time and in a proper way, could insist on joinder of the plaintiffs omitted tenant in common in the combined action for title and damages. It is significant, however, that in these decisions the court did not refer to the trespass to try title statutes in connection with the matter of damages. Instead, reference is made to decisions in cases where plaintiff sued only for damages, and where the courts defined his recovery in terms of his rights as a tenant in common. In Naugher v. Patterson; Logan v. Robinson; Lane v. Miller Vidor Lumber Co.; and Nona Mills Co. v. Jackson, supra, the court recognized the plaintiff's right to recover the entire tract from one without title but denied the plaintiff the right to recover more than his own share of the damages. The rules applied were incidents of the tenancy in common, and the court in each case applied the same rules to the combined action which would have been applied to separate actions for title and for damages. If rules pertaining to tenancy in common govern to this extent, it seems logical and reasonable to apply said rules fully, and thus to make applicable to the combined action the rule of parties which would apply to the separate action for damages. This rule of parties, although not precisely an incident of the estate, is a consequence of the tenancy in common. As a matter of fact, the opinion in Lane v. Miller Vidor Lumber Company indicates that the court thought the defendant could insist on joinder of omitted tenants in common, and some such indications also appear in C. R. Cummings Co. v. Masterson.
On independent consideration of the trespass to try title statutes, and the Rules of Procedure into which some of these statutes have been carried, we conclude that these statutes and rules do not confer authority upon a tenant in common to maintain the combined action for title and for damages free of and without the joinder of his cotenant, and that said statutes and rules did not obviate the rule of parties which is applicable to a simple suit for damages. Those statutes (Articles 7366(6), 7387, 7389, 7390, 7394-7401) and rules (Nos. 783, 803, 805-807) do not specifically refer to matters of parties. According to their literal meaning, these statutes and rules seem to apply to and fit cases where the plaintiffs are otherwise fully qualified and authorized to sue, that is, cases where all of the parties are in and the question of nonjoinder does not exist. In so far as authority is thereby conferred to sue for damages as well as for title, said statutes and rules seem to provide for and govern a joinder of causes of action as distinguished from joinder of parties. These statutes and rules can, at any rate, be so construed, and we think should be, for the following reasons: (a) There is as much reason for requiring all tenants in common to join in the combined action for title and damages as in the simple suit for damages. If it is unreasonable to allow tenants in common to bring separate actions for a single trespass, as was in effect held in May v. Slade,
Second: Appellants refer to the numerous parties which would be involved in this suit under appellee's theory, and cite Rule 42 as authority for maintaining this action without the joinder of their tenants in common. Rule 42 provides for class actions, and does not apply unless the intention to sue on behalf of a class is evidenced by appropriate pleading. Such pleading is not before us. Appellants have alleged fee title in themselves and thus have the appearance of denying title to their tenants in common. Neither does the Rule apply unless the members of the class actually before the court adequately represent the class; this is as much a requirement of due process as it is a provision of the Rule, Hansberry v. Lee,
We are of the opinion that Rule 42 has no application to the case alleged by the appellants, even had appellants made proper class suit allegations. Rule 42 must be applied with due regard for the substantive rights of the parties, since under Rule 815 such rights were not affected by Rule 42. As regards appellants' claim of title, Rule 42 has no room for operation if appellees have no title; as tenants in common, and under substantive right, appellants can recover the entire tract from one without title. Further, the necessity of applying Rule 42 consistently with the substantive rights of the parties requires that this Rule be applied with due regard for the principles of Res Judicata. If the proof should show that appellees as well as appellants own undivided interests in the land but that appellants and appellees do not own the entire title, the court could not adjudicate the title of the omitted tenants in common and could not award such interests to appellants or to the omitted tenants in common. It is held, in trespass to try title suits between parties owning undivided interests in land, that plaintiff could not recover from the defendant the interests of omitted tenants in common, although defendant claimed adversely to all. Boon v. Knox,
These matters preclude an application of Rule 42, to the issues made by appellants' petition; for if the judgment will not be res judicata as to the omitted tenants in common it will not, as regards the shares or interests of said omitted tenants, bind the appellees. The estoppel of the judgment must be mutual, Davis v. First National Bank,
Our ruling, of course, is limited to the precise fact before us, namely, a tenancy in common in the fee title to the land and the damages incidental thereto rights whereto the parties seek to establish in trespass to try title.
Third: Appellees say that Section (a) of Rule 39 applies to this case and that it requires the joinder of appellants' omitted tenants in common. For this they cite Brown v. Meyers, Tex.Civ.App.
We hold that the rule of parties invoked by appellees has been carried into Section (a) of Rule 39 and that said Rule applies to the combined action for title and damages by virtue of Rule 795, as did, we believe, the former rule of decision by virtue of Article 7365, R.S. 1925. Rule 39 should be construed as follows: First: Sections (a) and (b) of Rule 39 provide for different matters, and Section (b) is not merely a reiteration of a requirement also made in Section (a). Second: As stated, Section (a) embodies the *926
rule of parties invoked by appellees. The controlling element of Section (a) is the term "joint interest." This term can be given a technical construction and thus be limited to truly indispensable parties. Appellants say we should so construe it; and there is Federal authority which apparently supports such a construction of the term "joint interest" appearing in Federal Rule 19, 28 U.S.C.A. following section 723c, the source of Texas Rule 39. Samuel Goldwyn, Inc., v. United Artists, 3 Cir.,
We have little inclination to apply Federal decisions to Texas Rule 39. The differences in language between Federal Rule 19 and Texas Rule 39 are significant. From them we infer that Texas Rule 39 constitutes an independent statement which is to be given an independent construction.
(D) Under the foregoing discussion, the appellees' pleas in abatement were not good as to the appellants' cause of action for title but were good as to appellants' cause of action for damages. However, it is believed that another principle is applicable to the peculiar facts of this case which requires that the pleas be overruled in toto. It is said in Bailey v. Morgan,
The rule of decision authorizing the court to dispense with omitted parties where such persons are exceedingly numerous was also recognized in Smith v. Peeler, Tex.Com.App., 29 S.W.2d 975. Statements of this rule of decision are commonly made in connection with class suits, and as a basis for such suits; but we believe the rule can be applied, and ought to be applied, as an independent exception where no effective relief can be granted in a class suit to persons who are not before the court in the ordinary and usual sense as named parties. Such is the case before us. The statements of the rule in Bailey v. Morgan and in Smith v. Peeler were not made as being limited to class suits; and in Hess v. Webb,
It was also an exception noted in Bailey v. Morgan, supra, where omitted parties "are without the jurisdiction of the Court"; and this exception was applied in Myers v. Shapiro Bros. Factors Corporation, Tex.Civ.App.
Section (a) of Rule 39 requires additional notice in this connection. It sets out no exceptions, and there is a question, whether, under the construction we give it, Section (a) admits of any exceptions. We think it does, on these reasons: First: it is obvious that Section (a) does not provide for this case and therefore does not repeal the exception which governs this case. It provides that "when a person who should join as a plaintiff refuses to do so, he may be made a defendant, or, in proper cases, an involuntary plaintiff." Appellants' tenants in common ought to be joined as plaintiffs. They could not refuse to join as plaintiffs unless informed of the suit and given an opportunity to determine their course of conduct. Only after their refusal are they to be made defendants or involuntary plaintiffs. It is unnecessary to determine whether the words "refuses to do so" imply anything mandatory; this language indicates what the Rule was intended to control, and the great number of omitted tenants in common and their diverse residences, both within and beyond the borders of this state, exhibit a fact situation here completely outside of the kind of situation which Rule 39 fits. Accordingly there is substantial reason for believing that Rule 39 was not intended to destroy the equitable exceptions referred to, and that the exceptions exist and can be applied except to the extent that adequate provision has been made for them elsewhere in the Rules. The only provision made for cases involving numerous parties is Rule 42; and we have held that Rule 42 can not be applied to the issues made up in this case so as to run the judgment beyond the titles exhibited by the appellants. In effect, there seems to be no adequate provision made in the Rules for the precise case before us, and under these circumstances, the equitable exceptions referred to are believed to be available. Second: Rule 39 must be construed so as to preserve and so as to be consistent with the substantive rights of the parties. See Rule 815. As noted in Bailey v. Morgan,
(E) The trial court having erred in sustaining the pleas in abatement, it remains to be considered whether appellees' special exception No. 1 has any significance here. This exception raises the question whether the petition should have alleged the particular interest claimed by each appellant. We hold that disposition of this appeal is not affected by this exception. The pleas in abatement were sustained to the entire suit; and with the entire action subject to dismissal, nothing final could be accomplished by amending the petition to meet the exception. The situation is analogous to that existing where both a general demurrer and a special exception have been *929
sustained to a pleading. There it is held that error in sustaining a general demurrer is not obviated by the fact that the special exception is good. This situation was before the court in De Everette v. Henry,
However, appellants have assigned error to the order sustaining this exception and in view of further proceedings in the trial court, we will indicate our views. We think the Special Exception was bad. It is Rule 783(c), formerly Article 7366(3), which is to be construed. Thereby the plaintiff in an action of trespass to try title is required to allege in his petition: "(c) The interest which the plaintiff claims in the premises, whether it be a fee simple or other estate; and, if he claims an undivided interest, the petition shall state the same and the amount thereof." Appellees say the petition here shows that appellants are claiming undivided interests, and say that the quoted provision is to be applied directly to each appellant. They cite Donaldson v. Cleveland, Tex.Civ.App.
(F) It is a question, whether to remand the case to the trial court for further proceedings under the pleas in abatement. Our holding, that the pleas in abatement were not good as to appellants' cause of action for damages, by reason of certain equitable exceptions to the rule of necessary parties, does not mean that one of the appellants could maintain his action alone because it would be impracticable to bring in all of his tenants in common. Such exceptions, where they exist, must be applied with due regard for the rights of all parties; and the trial court would be authorized to require joinder of additional parties plaintiff. However, it is believed that the facts have been developed with sufficient fullness to authorize rendition of the judgment which should have been rendered below; and upon considering the great number of plaintiffs already in this suit, and the diverse status and residences of said plaintiffs, we have reached the conclusion that it would be impracticable, within the true intent and meaning of the exceptions noted above, to require the joinder of any appreciable number or percentage of the persons listed in the pleas in abatement, and that under these circumstances it is proper to render judgment authorizing appellants to proceed alone.
The judgment of the trial court is therefore reversed, and judgment is here rendered in behalf of appellants.
COE, C J., not sitting. *986