62 Tex. 495 | Tex. | 1884
The action of the court below on the plea to the jurisdiction filed by the defendants Hannah and Owens was not erroneous.
The action, in so far as they were concerned, was one for partition, and although the land on which they were was situated in a county other than that in which the suit was brought, yet, as a part of the estate to be partitioned was situated in Busk county, and some of the defendants resided there, the district court for that county had jurisdiction. R. S., 1198, subdivision 12; Carro v. Carro, 60 Tex., 395.
The evidence showed that S. H. Osborn, during the life-time of his wife, acquired the property sought to be partitioned, or that such as was not so acquired was acquired with property in his hands at the time of her death.
This being true, the court correctly instructed the jury that the burden of proving that such property was acquired with the separate means of S. H. Osborn rested upon him.
The charge of the court, taken all together, presented the question of community property, or not, very fairly to the jury, and we are not prepared to say that such evidence was offered by the defendants as would be sufficient to rebut the presumption that the
Under such a state of facts, the jury having found that the property in controversy was community property, their verdict must be held conclusive of that fact.
The right of the ward of the appellee, under the pleadings and facts, to the particular tract of land claimed for him, does not depend solely upon the question whether such facts existed as would have enabled the father of the ward to compel specific performance of the parol agreement made between him and his father, had they been strangers in title. Such facts might not be shown to exist, and yet as against S. H. Osborn the parol agreement be enforced, as a partial partition thus made between tenants in common; which, under the finding of the jury, S. H. Osborn and his son must be held to have been. Stuart v. Baker, 17 Tex., 417; Huffman v. Cartwright, 44 Tex., 301.
The petition does not assert title to the particular tract of land solely through a parol gift from S. H. Osborn to his son, but claims through the interest in all the lands which the father of the ward had by inheritance from his mother, as well as through the parol agreement with his father.
The father of the ward was placed in possession of the land by S. H. Osborn, and was living upon it at the time of his death, having made some improvements thereon; and under this state of facts, if the particular tract of land can be given to the ward in partition without injury to the other heirs of Mrs. S. H. Osborn, .we see no good reason why this should not be done.
The first part of the judgment, taken alone, would seem to give the Dolly Roquemore tract of land to the ward of the appellee without reference to the rights of the other heirs of the deceased wife of S. H. Osborn; but the other parts of the judgment show that this was nob intended, and that it was intended to give, that particular tract to the ward, if it could be done without prejudice to the other heirs, whose rights were fully protected.
The judgment does not give to the ward of the appellee any greater right in the entire community property than he would have been entitled to, without reference to the parol agreement between S. H. Osborn and the father of the ward.
It is unnecessary to consider what the right of the ward of the appellee would have been, under the parol agreement made between his father and S. H. Osborn, had it been found that the property was the separate estate of the latter.
The appellee recovered for the share of rents on community lands, other than the homestead of S. H. Osborn, which was in proportion to her ward’s share in the community lands held and controlled by S. H. Osborn exclusively, from the time of the death of his wife, and it is insisted that this was error.
It may be admitted that one tenant in common has the right to enter upon and use the entire common property, without liability to account for such use and occupation, unless he excludes his co-tenant from a like occupancy; but when his occupation becomes exclusive, and thereby a co-tenant, alike entitled to use, is prevented from using, then such co-tenant, excluded, is entitled to compensation to the extent of the value of the use of which he has been deprived by the exclusive use by another co-tenant of the entire common property. Neil v. Shackelford, 45 Tex., 131.
The evidence fully sustains the claim that the use of the common property by S. H. Osborn was an exclusive and hostile use and holding, continued even until the very last pleadings filed in this case, in which he denied the common ownership and asserted that the property was his separate estate. Under such state of facts he would be liable for the reasonable value of the use of the share of the common property which belonged to the ward of the appellee. Izard v. Bodine, 3 Stockton, 404.
It is not necessary in this case to consider whether one tenant in common who uses the entire property owned in common, without application from other tenants in common to be let into the common enjoyment of the property, or without some act indicating an intention to use exclusively, may be held liable for the value of the use over and above such tenant’s proportionate share in the property. Upon this question there is some conflict of authority.
The inference from the record is that the common property had been rented by S. H. Osborn to other persons, from whom he had received rents, and in such case there is no doubt of his liability to other co-tenants for their pro rata share of rents received.
There are many assignments of error copied into the -brief for appellants, but not therein otherwise presented. These are considered to be waived, and all others deemed material to the proper disposition of the case have been considered, and no material error thus presented being found, the judgment of the court below is affirmed.
Affirmed.