Arnold v. Cauble

• Decision Date: 01 January 1878
• Citation: Arnold v. Cauble, 49 Tex. 527 (Tex. 1878)
• Parties: A. M. ARNOLD v. MARY M. CAUBLE ET AL.
• Court: Texas Supreme Court

49 Tex. 527

A. M. ARNOLD

v.MARY M. CAUBLE ET AL.

Supreme Court of Texas.

1878.

APPEAL from Johnson. Tried below before the Hon. A. J. Hood.

The facts are given in the opinion.

Davis & Oatis, for appellant, cited and discussed Good v. Coombs, 28 Tex., 35;Burleson v. Burleson, 28 Tex., 410;Hartman v. Thomas, 37 Tex., 90;Robinson v. McDonald, 11 Tex., 385;Williams v. Wethered, 37 Tex., 130;McAllister v. Farley, 39 Tex., 560;McKey v. Welch, 22 Tex., 397;Wells v. Groesbeck, 22 Tex., 434;Trammell v. McDade, 29 Tex., 364; 2 Kent's Comm., 435.)

D. T. Bledsoe, for heirs of Cason, appellant.

Amzi Bradshaw, for Griffin, appellant.

ROBERTS, CHIEF JUSTICE.

The facts agreed upon on the trial--that the 160 acres of land was the community property of William G. and Lubincy Cason, and all of the property left at the time of his death; that after his death she, through her agent, sold the south half of it (in 1869) to A. M. Arnold, who went into possession, and made valuable improvements; that subsequently (in 1870) she, by her agent, sold the remaining or northern half to Y. H. Griffin; that plaintiffs in the court below, and appellees here, are his heirs, and that there is no administration pending upon his estate and no debts existing against it; and the further fact that none of the parties have appealed from the judgment of the court, except A. M. Arnold--make it unnecessary to consider the sufficiency of the evidence to establish that Arnold and Griffin had received valid conveyances from Lubincy Melton, (formerly Lubincy Cason,) which would entitle them fully to represent her in a suit for a partition of said land, and make such partition valid, as to the plaintiffs and as to the other parties, without any judgment having been rendered in this suit against or for said Lubincy Melton and her husband, who are sued, and prayed to be made parties in the petition.

There was no inquiry, by allegations and evidence, made into the amount and value of improvements made by Lubincy Melton, if any, after the death of her former husband and before her alleged sale of the land. The evidence showed that Griffin had made no improvements, and the value of the improvements made by Arnold was not proved.

The commissioners appointed to aid in the partition of the land, reported that the north and south halves of the land were equal in value, set off to the plaintiffs the north half of the same as their equal share of the land inherited from their father, and then proceeded to divide the south half between Arnold and Griffin, giving to each forty acres of it, and reported the improvements on that allotted to Arnold to be of the value of $225, and those on that allotted to Griffin at $25. The court confirmed this report, and in order to make Griffin equal with Arnold, in reference to the land and improvements allotted to each of them respectively, adjudged Arnold to pay to Griffin $120.83 1/3. How that particular amount was arrived at does not exactly appear, either from the report or from the evidence on the trial.

Arnold, as shown by his assignments of error, objects to that part of the judgment which gives to Griffin any part of the land included in his (Arnold's) deed, and which adjudges him to pay to Griffin said amount of money to equalize the division between them of the south half of the tract.

We are of opinion that the court erred, to the prejudice of the rights of Arnold, in this judgment of partition. It was competent for the court to set apart to the plaintiffs the north half of the land as their share of the tract, if it was necessary to make an equal division between them and their mother, irrespective of any rights that had been acquired by Griffin; and they could likewise have been given the south half, if that had been necessary, or they could have been given half of the land purchased by each, if that had been necessary. If they had been given the south half, or the half of each of the two tracts, it might have been necessary to have found the value of the improvements made by Arnold, or by their mother, on the part that was allotted to them, and to have made compensation to whoever was entitled to it, upon principles of equity pertaining to the partition of lands between cotenants and the vendees under one of them. But having set apart the north half to the plaintiffs as an equal division, Griffin had no right to complain of it, if it was necessary to do justice to the heirs of the deceased husband in making the division. Nor can we say that it was inequitable for a preference to be given to Arnold in the division, because he had bought his half first, went into possession of it, and made valuable improvements, of all which Griffin was bound to have had notice when he made his purchase of the whole of the remaining half of the land. But the court had no power, after setting apart the north half of the land to the plaintiffs as their equal and proper share, to float Griffin down upon the south half, not included in his deed, which had been bought by Arnold, because it was giving him a right to land that he had not bought. A partition is a distribution of land between persons who are part owners, and cannot be made to operate as a conveyance of land to one of the parties to the suit who had no interest in or title to the particular portion which was given to him in the division.

There was no such relation between Arnold and Griffin, who held different tracts by different titles, as that Arnold could be required in equity to divide his land with Griffin, because Griffin had lost his land and was thrown back upon the warranty in his deed of purchase. And certainly there was no such contract, privity of estate, or other relation between them as would enable the court to raise up a debt by way of contribution, and adjudge it against Arnold, in favor of Griffin, to make Griffin's share in Arnold's land equal in value to that part which was allotted to Arnold.

In view of the case made by the record, neither the plaintiffs nor Griffin having appealed, it is unnecessary now for us to decide further, than that if it was necessary, in order to make a proper division of the land, to give the northern half of the land to the plaintiffs, the court had no power to take a part of the land that had been bought by Arnold and give it to Griffin, who had no interest in or title to it, and adjudge an amount of money to be paid by Arnold to Griffin to make their shares equal.

In reversing and remanding the case for a new trial, it may be well to consider some of the principles and rules of equity governing a suit of this kind for partition.

First, it is well settled that all of the co-tenants must be made parties to the suit; and any person claiming to hold any interest in the land under one of them must on the trial show himself legally entitled to the interest which he claims, otherwise the partition, when made, may not be complete and final. (Freem. on Co-tenancy and Part., sec. 463.) If Arnold and...