57 S.W.2d 873 | Tex. App. | 1933
This suit was instituted by appellant Mrs. Josie Smith, for herself and as guardian of the persons and estates of her minor children, R. V. Smith, Jr., Margaret Smith, and Van Smith, to set aside a judgment of the district court awarding appellee, Edith Dunnam, recovery of an undivided one-half interest in a certain tract of land in the city of San Antonio, adjudging title to the other half of said tract to be in said minors and ordering said tract sold for partition. Appellant alleged that said tract of land was community property of her deceased husband, R. V. Smith, Sr., and herself; that during his lifetime they used and occupied the same as a home for themselves and their minor children; than they owned no other property; that she and her children had used and occupied said tract of land as a home continuously since his death. She alleged that she had been duly appointed guardian of the persons and estates of the above-named children of herself and her deceased husband. She further alleged that she thereto fore borrowed from appellee the sum of $1,200, and a deed of trust on her undivided one-half interest in said tract of land to secure the same; that she had never abandoned here homestead use thereof, but, on the contrary, had continuously claimed the right to use and occupy the same as such; that, since said property at the time said deed of trust was executed was the homestead of herself and children, the same was void. She *874 further alleged that thereafter, in a suit pending in the court in which this suit was filed, appellee recovered a judgment against her individually and as guardian as aforesaid for an undivided one-half interest in said tract of land, and declaring title to the other undivided one-half thereof to be in said minors. She alleged that the court in said judgment further found and declared that said tract of land was subject to partition; that it was incapable of partition in kind, and appointed a receiver to sell the same to enable the court to divide the proceeds of such sale according to the respective interests of appellee and said wards. She prayed for a decree vacating and annulling said judgment and confirming title in her to an undivided one-half interest in said land.
Appellee presented a general demurrer to appellant's petition. The court heard and sustained the same and dismissed the cause. Hence this appeal.
The judgment of the trial court is affirmed.