Aycock v. Kimbrough

• Decision Date: 18 November 1887
• Citation: 12 S.W. 71
• Parties: AYCOCK <I>et al.</I> <I>v.</I> KIMBROUGH <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 71

AYCOCK et al.

v. KIMBROUGH et al.

Supreme Court of Texas.

November 18, 1887.¹

Commissioners' decision. Appeal from district court, Falls county; B. W. RIMES, Judge.

The appellant Emma Aycock recovered a judgment, November 14, 1873, against A. P. Morris, and execution was duly issued thereon, which appears to have been returned nulla bona. Nearly four years later the father of the judgment debtor died intestate, leaving as his heirs Mrs. Perkins, Mrs. Price, and Mrs. Kimbrough, and the judgment debtor and another son. Within a few weeks after the father's death the heirs entered into a verbal agreement to divide the property, consisting mainly of lands and town lots. Subsequent to this agreement an alias execution was issued on the judgment of Mrs. Aycock against A. P. Morris, and the sheriff levied on and sold the interest of the judgment debtor in certain lands of his father's estate, which it appears had been apportioned, by the verbal agreement, to two of the married sisters, Mrs. Kimbrough and Mrs. Perkins, and the brother, J. R. Morris. B. L. Aycock, the husband of the judgment creditor, became the purchaser of the lands. The claimants, appellees in this suit, commenced an action prior to the sale of the land against the appellants Emma Aycock and B. L. Aycock, and A. P. Morris and the sheriff, to be quieted in their title, and obtained a temporary injunction against the sale, which was subsequently dissolved. Appellants filed their cross-bill in the suit, and obtained a judgment against appellees for quieting of title and partition, and commissioners were appointed to divide the land. On the following day, and at the same term of court, the attorneys of appellees, who were plaintiffs in the suit in the court below, appeared as the attorneys for A. P. Morris, the judgment debtor, who had been made a party defendant in the same suit, and moved in his behalf to set aside the judgment, which motion was granted. At the next term of the court, being the July term, 1885, a new trial was had by the court without a jury, resulting in a judgment for plaintiffs, from which judgment, and from the order granting a new trial, the defendants Emma Aycock and B. L. Aycock appeal.

Emma Aycock and B. L. Aycock, in pro. per. Goodrich & Clarkson, for appellees.

MALTBIE, J.

It is insisted that the court erred in not sustaining Aycock's general demurrer to the defendant A. P. Morris' answer, — said answer asserting that the 100 acres of land had been allotted to Mrs. Perkins, Mrs. Kimbrough, and Mrs. Price in a parol partition of George Morris' estate among his heirs in the year 1877, the two former being married women.

It has been long settled that a parol partition of lands among joint owners or tenants in common is not within the statute of frauds. Houston v. Sneed, 15 Tex. 309; George v. Thomas, 16 Tex. 89; Stuart v. Baker, 17 Tex. 419. That some of the parties to the partition are married women is not believed to be a valid objection to such partition, or, at all events, that it would not be void and subject to a collateral attack on that account. Married women, it is true, can only convey their real estate in the way pointed out by the statute; but a partition of lands is neither within the statute of frauds nor the statute regulating the transfer of real estate of a married woman, — a parol partition being a division, but in...