Burton v. Williams

• Decision Date: 22 May 1946
• Docket Number: No. 2677.,2677.
• Citation: 195 S.W.2d 245
• Parties: BURTON et ux. v. WILLIAMS.
• Court: Texas Court of Appeals

Page 245

195 S.W.2d 245

BURTON et ux. v. WILLIAMS.

No. 2677.

Court of Civil Appeals of Texas. Tenth District.

May 22, 1946.

Rehearing Denied June 13, 1946.

Appeal from District Court, Navarro County; A. P. Mays, Judge.

Suit by J. L. Burton and wife against Dock Williams and others for partition of land, in which defendants filed a cross-action for partition of land in kind. Judgment for defendants, and plaintiffs appeal.

Affirmed.

Tyson, Dawson & Dawson, of Corsicana, for appellants.

Doyle Pevehouse and A. V. McCall, both of Corsicana, for appellees.

TIREY, Justice.

Appellants, plaintiffs below, brought this suit to partition a tract of land containing 61.6 acres in Navarro county. They alleged substantially that because of the smallness of the tract and that it had one set of improvements only, it was incapable of partition in kind except at a loss in value, and that they were entitled to be reimbursed for improvements; and they prayed that said land be sold by a receiver and the proceeds divided as the interests of the parties appear. In the alternative, they prayed that the land be partitioned in kind to the owners and that the court set aside their interests to them in severalty and for compensation for improvements. Defendants, in their first amended original answer and cross-action, averred substantially that they were entitled to certain improvements and that the land was susceptible of being partitioned in kind and that it would be to the best interests of all the parties that defendants have their 7/18 interest set aside as a whole to them and that plaintiffs have their 11/18 interest set aside as a whole to them, and prayed "the court adjudge that said land involved in this suit is susceptible of partition in kind * * * that commissioners be appointed and a writ of partition issue, and that defendants have title to and possession of that portion of said land they have made improvements on, on the east side thereof * * *." It was stipulated by the parties that plaintiffs owned an 11/18 interest in the land and that defendants owned a 7/18 interest. The jury found (a) that the land was susceptible to a fair and equitable partition by setting aside to the plaintiffs 11/18 thereof and the defendants jointly 7/18; (b) that defendants, Mrs. Maude Harris and husband, had, during their occupancy of the land and at their expense, placed improvements upon the property which had increased the present market value of the land in the sum of $506; and (c) that plaintiffs, J. L. Burton and wife, had, during their occupancy of the land and at their expense, placed improvements upon the property which had increased the present market value of the land in the sum of $365. Plaintiffs seasonably filed their motion for judgment in which they asked the court to disregard the jury's answer to Special Issue No. 1 and enter a decree to the effect that said land could not be partitioned in kind, which motion was overruled. The court granted defendants' motion for judgment on the verdict of the jury and entered decree for partition and appointed commissioners to partition the land, which decree provided in part "that Share No. 1 thereof, which shall include the homestead and improvements necessary to its reasonable enjoyment, shall equal in value 7/18ths of the entire tract of land, plus $141.00, the difference between $506.00 of improvements placed on said land by the defendants, Mrs. Maude Harris and her husband, J. B. Harris, and $365.00 of improvements placed on said land by the plaintiffs, J. L. Burton and his wife, Mrs. Vannah Burton, and Share No. 2 shall include therein a sufficiency of land to equal 11/18ths in value of the entire tract of land, less said $141.00, that is, Share No. 1 to be set aside to the defendants, Dock Williams, Mrs. Dora Anderson, Mrs. Maude Harris and her husband, J. B. Harris, jointly, and Share No. 2 to be set aside to the plaintiffs, J. L. Burton and his wife, Mrs. Vannah Burton." Plaintiffs appealed from this decree.

Appellants assail the judgment (1) on the ground that the court erred in submitting Special Issue No. 1, as follows: "Is the land in question susceptible of a fair and equitable partition between plaintiffs and defendants by setting aside to the plaintiffs 11/18ths and to the defendants jointly 7/18ths thereof?" and (2) that the answer of the jury that it was is not supported by but is contrary to the overwhelming weight of the evidence. We overrule each of these contentions.

Appellants objected to Special Issue No. 1 substantially because all the evidence tendered showed that the land should not be partitioned in kind except at a material shrinkage and loss in its market value and that the question submitted propounds to the jury a question of law. We cannot agree with either of these contentions. It is true that appellants tendered testimony to the effect that "it would be more valuable to leave it just like it is, in a whole block." Other witnesses testified in part: "It would decrease its value to cut it in two and offer it for sale in two tracts, because you couldn't get a buyer for it. If you cut it up in less than a fifty acre block it wouldn't be a self-sustaining unit * * * I would say it would bring less money by cutting it up * * * the part which had the improvements on it would not be a self-sustaining unit and the other part would be wholly unimproved and it would be mighty hard to sell. It would damage and depreciate the value of a 61 acre tract by dividing it 2/3rds in one piece, or approximately that, and 1/3rd in the other * * * it would be hurt 30% in value by cutting it up in shares. Well I figure it would bring anywhere from five to seven hundred dollars more as a whole than it would be to cut it into two pieces."

Jim Richards, tendered by appellants, testified, without objection, in part:

"Q. Would it damage and depreciate the value of a 61 acre tract by dividing it two-thirds in one piece, or approximately that, and one-third in the other? A. Yes, sir.

"Q. Percentagewise, Mr. Richards, how much would it depreciate the value, in your opinion? A. Well, now, that's a pretty hard proposition; in these times there is no lumber available; you couldn't build another house; it is according to who got the house and who got the naked land, and the fellow who got the naked land, if he didn't have some place close by—real close by, he wouldn't want it at all. * * *

"Q. Irrespective of the amount, having it close by would make it worth more? A. It does.

"Q. I am talking about putting it on the market to try to find a buyer? A. Yes.

"Q. Percentagewise, how much would the land be hurt by cutting a 61 acre tract approximately. * * * A. I would say thirty per cent.

"Q. It would be hurt thirty percent by cutting it up in shares? A. Thirty per cent. * * *

"Q. Mr. Richards, Mr. Burton does have some property near by there, doesn't he? A. Uh, huh.

"Q. It joins this property on the north? A. Yes.

"Q. With improvements on it? A. Yes."

Since it is without dispute that appellants owned an 11/18 interest in the tract to be partitioned and that they owned the tract adjoining on the northern end thereof, it is obvious that Mr. Richard's testimony alone raised a jury question. Other vital issues were raised by the evidence without dispute, such as betterments, improvements and the question of the homestead of Harris and wife. It follows that we are of the opinion that the issue did not submit a question of law to the jury. It is well settled that the amount of the recovery for improvements is limited to the value of the enhancement of the property at the time of partition, and of course this was a jury question. See Clift v. Clift, 72 Tex. 444, 10 S.W. 338; Dakan v. Dakan, 125 Tex. 305, 83 S.W.2d 620.

Partition of real estate in Texas is controlled by Title 104, Rev.Civ.Stats., Vernon's Ann.Civ.St. art. 6082 et seq., and Sec. 3, Rules 756-771 incl., T.R.C.P. In Texas our courts have uniformly recognized that in the partition of real estate, the district court should exercise its equity power. In this state "partition by suit, whether brought under the statute or without the aid of the statute, does not proceed independently of the rules of equity * * *." Thomas v. Southwestern Settlement & Development Co., 132 Tex. 413, 123 S.W.2d 290, points 3 and 4, page 296. In the case at bar the plaintiffs and defendants are cotenants, one of the defendants, Mrs. Harris, and her husband having asserted and claimed a homestead interest in the property since 1941. In Moor v. Moor, Tex.Civ.App., 63 S.W. 347, 351 (writ refused), we find this...