52 Tex. 383 | Tex. | 1880
There was evidence under which the court may well have held that Mary C. Tatum was the only surviving sister of M. B. Tatum, and that in default of children, parents, or grand-parents, she was, under the law in force in March, 1836, his sole heir. But she died childless in September, 1840, and the evidence is certainly sufficient to show that some of the plaintiffs are part heirs of her estate. Under the law of descent of thife State in force at her death, and, so far as the record discloses, controlling the question, her husband inherited no part of her estate, but in default of children, brothers or sisters, or their descendants, or grand-parents, it was to be divided into two equal parts, one of which passed to the descendants of the paternal, and the other to the descendants of
As against a trespasser, a tenant in common may recover the entire premises; and although the statutes, as recently revised, require the claimant of an undivided interest to state the same and the amount thereof, the rule which prevailed at the time'of the trial was that the owner of an undivided interest might recover of a wrong-doer, although the petition failed to show that he was only part owner. (Rev. Stats., art. 4786; Croft v. Rains, 10 Tex., 523; Watrous v. McGrew, 16 Tex., 510; Grassmeyer v. Beeson, 18 Tex., 766; Presley v. Holmes, 33 Tex., 478; Hutchins v. Bacon, 46 Tex., 414.)
We are, however, of opinion that the defense of limitation under the statute of ten years was fully made out against those plaintiffs who did not become parties until May 13, 1878, and who failed to allege and show themselves within some of the exceptions to the statute.
Our opinion is, that, the institution by James T. Stovall of an ordinary suit of trespass to try title, there being nothing to indicate that the suit was brought on behalf of any other part owner, did not'operate to stop the running of limitation against
True, the entry of one tenant in common is prima facie the entry of all. Should one recover possession of a wrong-xloer by suit, in the absence of something to show a different intention he would still be presumed to take ¡possession for all. It will not be presumed that he acts in bad faith towards his co-tenant. As between him and other joint owners, his beneficial acts will inure, not to his exclusive benefit, but to the benefit of all. But it is also true, that by the institution of an unsuccessful suit he binds no one but himself. Other joint owners are not estopped by a judgment against him. (Freem. on Coten., sec. 168 and ref.)
It would seem to follow, that his institution of a suit in his own behalf would not stop limitation as to any one save himself.
As to some of the plaintiffs, the defense of limitation was complete, and the defendant, as to the other plaintiffs, was entitled to retain possession jointly with them. In case of a suit by one tenant in common against another, the judgment should leave both in possession, for neither is entitled to exclusive possession. (Freem. on Coten., sec. 293 and ref.)
Those of the plaintiffs who - had established an undivided, though indefinite, interest in the land, were- at the time entitled to a judgment placing them in possession with defendant. On another trial the rule prescribed in the revised code would
It is unnecessary to consider the propositions submitted by appellee based on the assumption that the common law prevails in South Carolina, as the record contains no evidence on the subject, and the presumption is that the law is the same as in this State.
The judgment is reversed and the cause remanded.
Reversed and remanded.