No. 6046 | Tex. | Apr 16, 1889
Richard Peterson brought this suit in the District Court of Lamar County, on December 15, 1885, against J. L. Fowler, Mary Hanahan, and appellees Lytle and McDaniel, and .alleged that plaintiff and defendant Fowler resided in Lamar County, -that Mary Hanahan resided in Uvalde County, and that Lytle and McDaniel resided in Frio County; that on the 1st day of August, 1868, John H. Fowler conveyed to plaintiff and defendant J. L. Fowler, as tenants in common, a tract of land in Frio County consisting of 4605 acres, and an undivided half interest in a tract of land in Uvalde County consisting of 4605 acres, Hanahan being owner of the other half interest (describing the lands); that by said conveyance plaintiff and defendant Fowler each acquired title to an undivided half interest in the land in Frio County, and an undivided one-fourth interest in the land in Uvalde County; that on August 20, 1883, the defendant Fowler executed his warranty deed to the defendants Lytle and McDonald for a two-thirds undivided interest in the land in Frio County; that said deed did in fact convey to Lytle and McDaniel defendant Fowler’s interest in said land, which was only an undivided half interest. Prayer for partition as the interests are set out in the petition. The defendants Lytle and McDaniel demurred to the petition upon the grounds:
1. That it appears therefrom that the lands sought to be partitioned are not situated in Lamar County, and also that none of the alleged part owners with plaintiff of the land in Frio County reside in Lamar County.
2. That they are improperly joined with defendants Hanahan and Fowler, because it appears from the petition that neither of said defendants owns any interest in the land which plaintiff seeks to have partitioned between himself and these defendants.
3. Because it appears from the petition that this is an action of trespass to try title to a part of the land in Frio County and should have been brought in that county.
4. Because the petition is multifarious in including two separate and distinct causes of action against different defendants in this suit.
The demurrers were sustained and the suit dismissed as to Lytle and McDaniel, from which judgment this appeal is prosecuted.
Under proper assignments of error it is contended that the judgment is erroneous for the following reasons:
1. Because the two tracts of land, one in Uvalde County and the other in Frio County, constituted but one common estate, and in a suit
2. Because this is simply a suit for partition as to both tracts of land and not an action of trespass to try title to any part of it. The distinctions which existed at common law between estates held by joint tenants, coparceners, and tenants in common do not obtain in this State. The holders of such estates are tenants in common without regard to the manner in which such estates are acquired. Rev. Stats., art, 1655; Ross v. Armstrong, 25 Texas Supp., 366.
Appellant and Fowler were tenants in common in both tracts of land, and when Fowler conveyed his interest in the land in Frio County to appellees they became tenants in common with appellant and the other defendants had no interest whatever in that tract. They were not necessary or even proper parties to a suit to partition that tract, without which the court of Lamar County did not have jurisdiction to decree partition. The land being situated in Frio County, to give the court of Lamar County jurisdiction one or more of the defendant tenants in common must have resided in that county where the suit was brought. Rev. Stats., art. 1198, subdiv. 12.
The common estate consisting of two separate freeholds, we think either "tenant in common had the right to sell and convey his interest in either or both of them, and his vendees would thereupon become the tenants in common with the vendor’s tenants in common to the extent of the estate conveyed. Freem. on Coten. and Part., secs. 194, 437; Butler v. Roys, 25 Mich., 54.
It appears from the petition that appellees were claiming two-thirds interest in the land in Frio County, while appellant admitted their title to only one-half. We think that to the extent of the difference between one-half and two-thirds the suit was necessarily an action of trespass to try title, and the District Court of Lamar County did not have jurisdiction.
We think the judgment of the court below is correct and should be affirmed.
Affirmed.
Adopted April 16, 1889.
Associate Justice Gaines did not sit in this case.