The appellees as plaintiffs below brought this suit to recover an undivided interest in the tract of land described and for a partition. The material facts, briefly stated, are as follows: In 1807 David Fulbright conveyed as a gift to his daughter, Christina Lawson, 301 acres of land of the Gooch survey situated in Red River county, a part of which is involved in this suit. Christina Lawson and her husband, Pleasant Lawson, moved onto this tract of land and occupied it as their homestead till her death in 1870. She died intestate, but whether or not she left a child surviving is one of the important issues involved in this litigation. Soon after this conveyance to his daughter, David Fulbright died leaving considerable real estate and a number of children and their descendants. His son P. Fulbright was appointed administrator of his estate. In 1875, some years after the death of Mrs. Lawson, the descendants and heirs of David Fulbright sought a judicial partition of his real estate. A petition was filed in which the children and heirs of David Fulbright were named as plaintiffs, and P. Fulbright, the administrator, as defendant. Among those enumerated as petitioners appeared the name of P. Lawson. After naming other children of David Fulbright, the petition mentions Christina Lawson, “who,” it alleges, “died intestate in 1870, leaving a husband, petitioner Pleasant Lawson, but no descendants.” The petition was signed by attorneys and shows that service was waived by P. Fulbright. A judgment of partition was thereafter rendered specifying the interest each claimant was entitled to have and appointing commissioners to make the division. Among other recitals, the partition decree contains the following:
“And to Pleasant D. Lawson as heir of his deceased wife Christina Lawson one twenty-second (V22) Pal't of said land.”
The evidence showed that David Fulbright had eleven children, and that the part award *195 ed lo Lawson was only half of a child’s portion. Lawson afterwards married a second wife, and they continued to reside upon the tract of land conveyed to his first wife; his residence, however, was shifted to different places on the land to suit his convenience. Some time aftef the death of his first wife, Lawson began to sell off specific portions of the land, in each instance executing a deed as the owner in fee simple of the entire interest conveyed. After the death of his second wife, Lawson continued his residence on the land till his death, which occurred in the latter part of 1911. A few months prior to his death he conveyed 175 acres, being all that remained of the original conveyance to Mrs. Lawson, to T. T. Tompkins and Fletcher Tompkins, and it is under this deed the appellants now claim title.
The appellees are the surviving brothers and sisters of Mrs. Lawson, and the descendants of those deceased. They contend in this suit that Mrs. Lawson died intestate and without issue, and that they are entitled by inheritance to one-half of the separate real estate she owned at the time of her death. They claim that those who hold under Lawson should in a partition be charged with that portion of the 301 acres of land he had previously conveyed, and that the deed to the appellants was valid as a conveyance of only the excess then remaining of the one-half interest in the original tract.
The appellants defend upon two grounds: First, they'say that Christina Lawson was survived by a child who died in infancy, and that Pleasant Lawson took all of the land by inheritance from his deceased child and therefore had a right to convey. As a second defense, they urge that Lawson acquired a title by adverse possession extending over a period of more than ten years pri- or to the institution of this suit. _
In response to questions propounded by the court, the jury found that Mrs. Lawson died without issue, and that there had been no adverse possession by Lawson and those claiming under him sufficient to create a title by limitation.
As proof that Mrs. Lawson died without issue, the appellees offered in evidence the petition and judgment in the partition proceedings instituted by the Fulbright heirs in 1875. They now contend that the record in that case settled that question, and that Lawson and those who claim under him were thereafter estopped to raise that issue in any proceeding between the same parties or their privies. Appellees admit that the land here involved was no part of what was then before the court, but insist that, the parties being legally the same as those involved in this case, the judgment then rendered was conclusive and that issue cannot be again reopened.
In the partition proceedings above referred to it was necessary for the court before rendering a decree dividing the estate-to ascertain the full extent of the interest of each joint owner.
It is also insisted by the appellants that the evidence conclusively established a title in them by adverse possession of ten years, and that the court should not have submitted that issue to the jury. While there was much testimony tending to show an adverse possession by Lawson, there was enough evidence to the contrary to require a submission of that question to the jury.
There was no error in the rulings made in admitting the testimony objected to upon the issue of limitation.
Complaint is made of the action of the court in making certain remarks in the presence and hearing of the jury. The bill of exception reserved thus presents the question:
“Be it remembered that on the trial hereof, it being contended by the plaintiffs that as the homestead of P. Lawson and Christina Lawson was on the 301-acre tract in controversy at the date of the latter’s death in May, 1870, it was not subject to partition, and that limitation did not commence to run against her heirs so long as Lawson’s homestead right existed, and the defendants contended that it was subject to partition under the existing laws at the time and that his holding was presumed to be adverse after four years, and the court having already submitted the issue of limitation to the jury with appropriate instructions in connection therewith, and the defendants’ counsel having closed their argument, the plaintiffs’ counsel in his closing argument offered to read to the jury article 3429 of Yernon’s Statute as proof and in substantiation of their contention, to which the defendants then and there objected on the ground that it was not the law at the time Christina Lawson died and that- the court had already instructed the jury on the issue. The court overruled the objection and permitted the attorney to read the article of the statute in question, and in connection therewith remarked that he had instructed the jury on the question of limitation in the charge so given, but saw no objection to counsel reading the statute in question as it was the law on the subject.”
The judgment of the court will be reversed, and the case remanded.
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