Vanlandingham v. Terry

293 S.W. 252 | Tex. App. | 1927

While the evidence at the trial authorized the court to declare as a matter of law that the minor owned the fee in the land in controversy and that appellants owned the life estate of Mrs. Terry in an undivided one-third thereof, there were no pleadings authorizing the court to partition the land among said owners, as he in effect did by his judgment. The parties by their pleadings severally sought a recovery of all the land, and neither sought a recovery of a part only thereof and a partition as between himself and the other owners, as he might have done. Article 6082, R.S. 1925; Morris v. Morris, 45 Tex. Civ. App. 60, 99 S.W. 972. Therefore, all the court could properly do by his judgment was to determine the question of title between the parties, and, having done that, leave them free to seek a partition of the land between them if and when they desired it, by a suit for that purpose. Greer v. Bringhurst,23 Tex. Civ. App. 582, 56 S.W. 947. In so holding we are not ignoring the fact that there was a prayer for general relief in the pleadings of the parties defendant as well as the plaintiff in the suit. The rule is that under such a prayer the court cannot grant relief inconsistent with or entirely different from that asked for in the special prayer. Payne v. Godfrey, 61 Tex. Civ. App. 40, 129 S.W. 163; Jordan v. Massey (Tex.Civ.App.) 134 S.W. 804. The judgment should have been in favor of the minor for the land and the possession thereof, subject to the life estate owned by appellants, and in their favor for said life estate and possession thereof, subject to the rights of the minor as the owner of the fee. Hunting v. Jones (Tex.Com.App.) 221 S.W. 265. It will be modified acordingly, and affirmed as modified.