*1 Appellants, al., et D. PADGETT al., Appellees. Sidney et PADGETT
No. 10529. Appeals Civil
Austin. 18, 1957.
Dec.
Rehearing Jan. Denied *2 George K. George and K. Jackson Jack-
son, who, pro excepting parties, forma are title, the heirs and hold the if any, of N. J. Padgett and A. Padgett, V. McMillan who was the Padgett. second wife of N. J. The pleadings in the case purely are for- mal.
The lands in having suit been ac quired by Padgett purchase N. during J. his second marriage belonged the com munity estate such marriage and C. J. Padgett, son of the first marriage, had no therein when in November J. Padgett N. proceed commenced ings in the District Court County. of Coke These facts and conclusions are without dispute. In the 1926 Padgett N. J. named as children, defendants his nine C. J. Falls, Dawson, Arch Wichita C. John only child of his marriage first Park, appellants.
Murphree, Iowa eight and the children of his second mar- riage. alleged He that he and his nine Lee, Dickey Dickey, ap- & Robert children “joint were the owners in fee pellees. simple” of certain described lands includ- ing property in suit and that he was (½) HUGHES, the owner undivided “one-half Justice. part of the above described prem- lands and trespass try This is a suit in title in ises and that the defendants (naming them) principal question presented which the is: equal are each the owners anof effect, any, given What if one-eighteenth (¾8) of the aforesaid prior partition judgments in a suit between premises.” lands predecessors in title involving the land in suit? All of defendants in such suit al- duly though being served defaulted and the controversy in an undi- proceeded trial appearance. without their nn nn royalty in 445 vided acres County, in Coke April 12, 1927, On Court in the tion suit entered finding that below, appellants here, Plaintiffs are plaintiff owner of an undivided Padgett, Patsy D. and S. Viola and J. Ann one-half interest lands sought to be Blair and O. Heins G. who are partitioned thát his children, nine title, any, if heirs hold of C. Pad- J. them, naming were “each the owners of only N. Padgett child of gett, and his J. eighteenth an undivided one Padgett. first wife Melissie premises” and “it would said be to the best Sidney Appellees Hugh are Padgett, interest of all hereto that said land Mary equal Ella and husband two Ira be divided into shares and that Jackson Jack- son, Davis, plaintiff Davis husband K. one share allotted to the J. Julia Stuckler, Manicchia, Ruby Beaulah Mae other share be to the allotted defendants Mann, Anna Mann and husband Fred Bertie in common so that of said defendants Shepley, Drane, guardian E. A. Floyd named undivided one- .264 interest, Gurley further Hari court finds of error refused. and -the See also
ninth Heirs, Austin, susceptible Tex.Civ.App. S.W. rick’s lands is that said ref.; Clements, Tex.Civ. Farias v. manner.” *3 S.W,2d 1018, App. Antonio, writ San 99 lan- in this decreed was then Partition dismissed; Chambers, Smoot Tex.Civ. v. guage : ref., App. Worth, 314, Fort 156 writ S.W.2d W.O.M.; v. Bank of Davis First National decreed and is ordered “It therefore Waco, 467, 144 36, 139 Tex. 161 S.W.2d above described by court that said the 1; 499, White, hereby A.L.R. White v. 142 Tex. premises and it and land Bank directed, and 179 S.W.2d and Bankston partitioned and ordered ston, Tex.Civ.App. Galveston, of 206 S.W.2d equal so share that distributed 839, 842, writ dis- refused. shall be described said to de- plaintiff and to the tributed own plaintiff so shall that the fendants quote following the from the that part or and one-half Bankston: above, jointly shall named defendants “Rules Texas Rules of Civil part or interest the other one-half prescribes petition Procedure what the premises.” and said land in and to partition in a Rule suit shall state. to appointed make Commissioners 760, T.R.C.P., provides: ‘Upon the reported by Court partition decreed the
the cause, hearing of the the court shall they “obe- 22, 1927, had in April on determine the each share or of having after and to such decree dience” joint of the owners or claimants writ parties” the of executed “notified sought divided, real estate to and all premises into two by dividing the partition questions equity affecting of law or one tract be recommended and tracts title to such land which arise.’ tract plaintiff the other and assigned to provides, Article by “R.C.S. ‘The them owned “to be defendants to the decree of the court confirming re- judge to be fair partition we which jointly port partition, of the commissioners in parties and said equitable between and partition when a been shall par- has made which said the shares to proportion to party vest the title to whom a entitled.” respectively are ties allotted, has been such share share This of the Commissioners was parties par- against the other to such by which judgment Court vested confirmed * * * suit, fully their tition heirs plaintiff tract in N. Pad- title to one effectually and as the deed of such tract in the defendants gett and to the other same, parties could and shall vest the portion decreeing “that the share or of as a have force effect by lands allotted said Commissioners said warranty conveyance full deed from of be held them the defendants shall such other and each of them.’ simple in fee title.” jointly partition suit, rendered In the the court report. judgment confirming such appealed judgments were not from These never been set aside. and have n n n n n n it is in-
“In never the judgment Judgments tention of a Court to render a of have the is, changes— affects —that which conclusiveness and are amenable which same parties. estop- adjudicata title of The intention the doctrines res always judg final such a pel by judgment as other of the case is are merely segregate Judgments, the undivided inter- Sec. 494 ments. Tex.Jur. cited, particularly according Richardson v. ests causes Trout, share, leaving Tex.Civ.App., unaffected. Bu± 135 S.W. title making parti- purpose questions hearing all which at fact, de- title affecting must equity the Court determine tion law 760,. parties. of the shall rights and title Rule clare be determined. See contemplated partition, like' T.R.C.P. And is also imports verity. And judgment, susceptibility at this initial hearing other n parties to it final all when becomes involved to thereby. Certainly kind are bound shall be See determined. Rules to collater- tion not T.R.C.P. n al attack.” “We have no doubt that the order *4 by 20, entered February court on the. upon Appellees rely primarily James 1951,was order, appealable final and Antonio, 164 James, Tex.Civ.App. v. San binding parties on all until and unless dismissed, Boese S.W. error writ of set or superseded aside by a later com- Galveston, 202 Parkhill, Tex.Civ.App. v. 'petent, contradictory, albeit order ref., removing this case as S.W. writ governing subject matter. princi- scope from the the decisions McFarland Heirs, W. Hall’s John pies stand These cases' alluded to above. 676; Tex. Mitchell, White v. partition property, if in a rule that the 164; Tex. Baker, Tieman v. 63 Tex. 'person suit, one set aside to more than specifying inter jointly and the without adjudication, est is no therein there “However apparent it is both from respec parties, as as to the between such the Rules and from foregoing the property. has in the cases, tive interest each particularly the case McFar- land v. Heirs, W. Hall’s John an- these cases have no We doubt the entry aof final order determining principles of law nounce correct and sound the interests, rights equities of the applica- and if here warrant their the facts parties and susceptibility the of the they applied. will sobe tion. partition in kind does not divest the court jurisdiction either of problem presented no easy To the answer the or of the actual execu- has forthcoming. been tion and carrying partition. out of the * * * pertinent portions out have set the judgment decreeing the * “* * What is determined in the judgment confirming of the the initial orders of course becomes res by as made Commissioners. It is clear the adjudicata, only adjudicata. but res an judgment that in the there was ad- first Nothing determined there becomes judication that each nine children of the sacrosanct in the sense that until set ½8 n owned an the subsequent aside conflicting deter- judgment entire tract. In the of confirma- * * * ipso mination is facto void. adjudication, tion there is no similar the. judgment being behalf generally there * “* * the Since court retained of the nine children. jurisdiction full of the and of subject matter of the the actual divi- Meissner, Tex.Civ.App., In Pfeffer v. sion and distribution of the Galveston, ref., S.W.2d property, that its fact later order N.R.E., statutory it was held that improper might or in conflict with partition, here, as that there are two fina prior order its would not render it void appealable judgments, saying: the Court only but erroneous. And such error present pre- procedure “Our of course waived unless availed of n by contemplates appeal.” scribed the Rules by direct here If judgment approve of confirmation some of the rest. I also don’t with contradictory or in conflict more year than grass one lease.” au- then, initial under the (2) father, N. Padgett, in his J. not, how- do thority, it would control. We left C. “this the sum of $500 J. ever, judgment. such a to be find being his of his mother’s estate Com- purports report of the to confirm a by used me in death.” buying land after her missioners “in obedience” made partition. Commis- (3) of the accepted a Padgett signed by the Court exactly sioners as directed did prepared company division order by oil They decree. divided showing by in the his interest to be as decreed parcels, property into two one Trial Court. children. father and other for the nine From appellees prin- argue, facts these considered,
They failed, if it be so cipally, appellants’ interest in since only in not repeating in acquired parti- land was and vested direction of the Court tion judgment through the use of tion judgment should own child that each *5 extent of his which due from he was $500 parcel an set in the undivided interest Veth mother’s upon repayment estate of that aside to them. money by father, this his after the tion judgment, released interest which report nothing in the Since is there may have been his or which have been judg of nor- Commissioners awarded him in such judgment. is con ment which confirming such upon cannot know what evidence parti tradictory to the initial partition judgment was based and if we judg opinion tion it is our that the not, knew we proceeding, could in use this de determining ment share of impeach it to judgment. they, that be fully fendant is effective proceeding, ing integral parts authority We are cited to no and do not in not interpreted together should be any authority ourselves know of which Tex.Jur., dependently of each other. justify would extinguishing us in or trans- done Judgments, this is Sec. 89. When ferring upon an interest in real estate import clear. is meaning very basis of this evidence. law adjudicated to that particular prescribing in formalities for nn specific title to an transfer of title to real not estate. This is nine children. lands set aside to approved one of the methods. requires us con to This conclusion Neither an ordinary does division appellees upon which grounds sider other relating order gas to the sale oil or con equitable rely These are affirmance. for an vey royalty Thomp title to the involved. these facts: and are based on in nature Thompson, son Tex. 236 S.W.2d answering an Padgett wrote (1)J. C. regarding brother to a (12-27-37)
letter The 1937 letter claims interest in lease on the land in an oil the execution in no land but event could it affect the stated: he in which legal title. feel it would “Hugh, I don’t Believing the Trial erred sign until I the lease me to right for this cause should reversed do, want to as the others what know appellants, rendered for is so only half as much means you know it ordered. to each of the others. it does me as part and rendered. my Reversed to sell I like fact would In Rehearing. Appellees’ On Motion so original opinion
Our is corrected controversy as describe being the difference between 2 n 080 n
the minerals 445 acres in and under ex Texas, County, subject Coke
isting lease, Trial oil gas which appellants
Court awarded and 50%64oths
mineral therein Trial appellants
lease which contend
Court should have awarded them.
Judgment enlarg- herein he entered
ing recovery all indicated. In respects appellees’
other re- motion for
hearing is overruled. part
Granted in and in overruled. *6 LANGFORD, Appellant, W. Lance Corsbie, Waco, Neil E. Clink- H. B. “Tex” enbeard, Killeen, appellant. for Moody, Pauline MOODYand L. O. Curtis, Duncan Bragg, & Crawford & Appellees. Harris, Killeen, Taylor Taylor, Temple, & appellees. No. 10535. Appeals
Court of Civil of Texas. ARCHER, Chief Justice.
Austin. Jan. appeal from a This is appellee $4,- Moody
favor of Pauline appellant. against 540.57 and appellee On December was Killeen, Texas, owner of a retail store stock, equip- consisting merchandise and ment, appellant was the owner of a pawn shop, jewelry store and loan business Killeen, During February, appellee joined Moody husband L. her O. entered into appellant appellee’s with partnership given $4,816.12, property was value of appellant’s given value $8,243.87. agreement partnership pro- management, vided for salaries and rental.