Stovall v. Carmichael

52 Tex. 383 | Tex. | 1880

Gould, Associate Justice.

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 the maternal grand-parents. (Hart. Dig., art. 577.) We have not felt called on to examine critically the evidence with the view of ascertaining whether all of the plaintiffs have established an interest in the estate of M. B. Tatum, or the estate of Mary C. Tatum or Mary C.- Cobb. There is evidence that there are descendants of the maternal grand-parents of M. B. and Mary C. Tatum still living, but not joining in the suit. Outside of this, the evidence fails to show the amount of the interest of any one of the plaintiffs. Take, for example, the original plaintiff, James T. Stovall. His father, A. L. Stovall, was one of six children of a paternal aunt of M. B. and Mary C. Tatum, said aunt having died before 1836. As one of the heirs of his father, A. L. Stovall, who was, it may be assumed, in right of his deceased mother, one of the heirs of either M. B. or Mary C. Tatum (Cobb), James T. Stovall has an interest in the estate of either, but what the amount of that interest is, did not appear on the trial.

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 others than himself. Such was the rule recognized and enforced hy this court in Burleson v. Burleson, 28 Tex., 410, and we have been cited to no opposing decision here or elsewhere. A somewhat analogous case is where one of two tenants in common is under a disability which prevents the running of limitation against him. The rule seems to be, that if the other tenant in common might have sued alone, (as undoubtedly he might in this State,) he is not protected from the effect of limitation, and that in such case the party under disability, and not barred, can recover only his own moiety. (Freem. on Coten., sec. 377; Ang. on Lim., sec. 484; Doe on the demise of Langdon v. Rawlston, 2 Taunt., 441.)

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 prevail, and require the amount of interest claimed to be stated.

[Opinion delivered January 13, 1880.]

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.