Burleson v. Burleson

Decision Date01 January 1855
Citation15 Tex. 423
CourtTexas Supreme Court

Where the surviving husband was sued for the specific performance of a contract to convey community property, made during coverture, and the litigation had been protracted for more than four years, during which time the suit was tried in the district court, and the judgment revised in the supreme court, and eighteen months afterwards, on the eve of trial, after the plaintiff had announced himself ready, the defendant moves that the heirs of his deceased wife be made parties to the suit, by process, involving a continuance of the cause, it was held that the motion was properly overruled.

See this case as to parties, and particularly as to the necessity of making the heirs of a deceased wife parties to suits involving the title to real estate, part of the community property.

Where a suit is brought on a bond to convey land, for specific performance, against the obligor in the bond, it is not necessary to prove the execution of the bond, unless it be denied under oath.

Where the plaintiff sued for the specific performance of an agreement for the exchange of lands, and the court below decreed title to the plaintiff, the supreme court reformed the judgment so as to decree title also to the defendant in accordance with the contract, although the defendant had not asked such relief, except by his assignment of errors.

Appeal from Williamson. A statement of this case will be found in 11 Tex. 2.

A. J. Hamilton and I. A. & G. W. Paschal, for appellant.

Oldham & Terrell, for appellee.


This cause was before the supreme court in 1853, and it was decided that the petition showed a cause of action which entitled the plaintiff to relief. (11 Tex. 2.) The cause being remanded and coming on again for trial, the plaintiff announced himself ready, and the defendant making no showing for continuance, the court ordered the cause to proceed, whereupon the defendant asked leave to amend his answer by stating that the league of land in controversy was granted to the defendant during the coverture with Rebecca Burleson, his wife, and that the said Rebecca having died before the commencement of suit, leaving children (who were named in the amendment), those children had a community interest in the land with the defendant, and were necessary parties to the suit, and praying that these be made parties. To this the plaintiff objected, and the objection being sustained, the defendant excepted, and, on appeal, assigned this ruling as a ground of error.

Many authorities have been cited in support of the rule that all persons materially interested in the subject matter of the suit, or, as the rule is expressed in some authors, in the object of the suit, should be made parties. The rule is peculiar to courts of equity, and is founded, as expressed by Judge Story in his treatise on equity pleadings, partly in artificial reasoning, partly in considerations of convenience, partly in the solicitude of courts of equity to suppress multifarious litigation, and partly in the dictate of natural justice, that the rights of persons ought not to be affected without giving them an opportunity to defend them. (Story's Eq. Pl. sec. 76c.) It is not, in most cases, in any just sense, a right of the parties, but a rule prescribed by courts of equity to themselves in the exercise of their jurisdiction, founded upon their own notions of public policy or public convenience. (Id. sec. 135a.) And as it is a rule founded, in some sort, upon public convenience and policy, rather than upon positive principles of municipal or general jurisprudence, courts of equity will not suffer it to be so applied as to defeat the purposes of justice, if they can dispose of the merits of the case before them without prejudice to the rights or interests of other persons who are not parties, or if the circumstances of the case render the application of the rule wholly impracticable. (Id. sec. 77.) The rule, being established for the convenient administration of justice, ought not to be adhered to in cases in which, consistently with practical convenience, it is incapable of application. (Id. sec. 96.)

Among the numerous exceptions to the rule is the case of a remainderman after tenancy in tail. He has an interest in the object of a suit brought by a tenant in tail affecting the entire fee, and yet he is not required to be made a party. So residuary legatees are interested in the object of a suit by a creditor against the executor to establish his claim or debt against the estate, for the establishment of such debt goes pro tanto in strict diminution of their interest in the residue, etc. (Id. sec. 76b.) Another rule in relation to parties is, that their nonjoinder or misjoinder cannot be made an objection in all stages of the cause, with equal effect. The mere nonjoinder of a party who might be a proper party, but whose absence produces no prejudice to the rights of the parties before the court, will constitute no fatal objection at the hearing or rehearing, or upon a bill of review. (Id. sec. 74a.)

Without further observations on the general rule, and without attempting to analyze the principles and reasons of the exceptions to the rule, we will proceed to examine whether there was error in the exclusion of the amendment offered by defendant, at the time and under the circumstances in which it was offered. No doubt the more correct practice would have been to have made the heirs of the wife parties at the institution of the suit. The conjugal partnership had been dissolved by the death of the wife, and the husband could not subsequently represent the community in the sense and to the extent that he was its representative and head during the existence of the partnership. Had the husband departed this life, and suit been brought against the wife, as the survivor, to enforce the title, the propriety of joining the heirs of the husband with the wife would have been manifest; and yet a surviving husband has in fact no more power over community property than has a surviving wife, provided that the wife did not renounce, as under our former laws she might have renounced, her rights in the...

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4 cases
  • Johnson v. Downing & Wooten Const. Co.
    • United States
    • Texas Court of Appeals
    • April 19, 1972
    ...compulsory counterclaim nor need it be pleaded, and the trial court's action was proper as an equitable measure. See Burleson v. Burleson, 15 Tex. 423, 429 (Tex.Sup.1855); Crossland v. Hart, supra, 234 S.W. at p. All points of error are overruled. The judgment of the trial court is affirmed. ...
  • Henry v. McNew
    • United States
    • Texas Court of Appeals
    • April 5, 1902
    ...father, Geo. R. Summerhill. See, also, Barrett v. Eastman, 67 S. W. 198, 4 Tex. Ct. Rep. 263, and authorities there cited; Burleson v. Burleson, 15 Tex. 423. Again, the legal title was in Geo. R. Summerhill, and it is not shown that the lienholders knew of, or were put on inquiry as to, any......
  • Crossland v. Hart
    • United States
    • Texas Court of Appeals
    • July 15, 1921
    ...have so decreed, and it was not necessary that there should have been any pleading on the part of appellant in that connection. Burleson v. Burleson, 15 Tex. 423; Hickman v. Withers, 83 Tex. 575, 19 S. W. 138. The judgment of the trial court will therefore be reformed to the extent of compe......
  • Glass v. Anderson, 17330
    • United States
    • Texas Court of Appeals
    • March 29, 1979
    ...a compulsory counterclaim nor need it be pleaded and the trial court's action was proper as an equitable measure. See Burleson v. Burleson, 15 Tex. 423, 429 (Tex.Sup.1855)" at 480 S.W.2d 254, 258 (Tex.Civ.App. Houston (14th Dist.) 1972, no According to the earnest money contract entered int......

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