O'Connor v. Delk
| Decision Date | 08 May 1952 |
| Docket Number | No. 3026,3026 |
| Parties | O'CONNOR et ux. v. DELK. |
| Court | Texas Court of Appeals |
O'Connor & Douglass, Dallas, C. J. O'Connor, Breckenridge, for appellants.
J. C. Lumpkins, Waxahachie, for appellee.
This is a partition suit. Plaintiff (appellee here) alleged substantially that he was the owner of an equal undivided one-half of the property sought to be partitioned in fee and the owner of the remaining one-half for life with remainder to his heirs, if any he had, and if not, then to the heirs of Maggie L. Delk according to the law of descent and distribution and that the fourth tract at the time it was conveyed to his parents had outstanding a one-half nonparticipating royalty reservation and that it had been leased for the production of oil and gas. The property to be partitioned consists of five separate tracts of land, each described by metes and bounds (located in Ellis, Dallas and Jones counties) and the petition sets out the interests of all the parties. The holders of the leasehold interest answered that they owned no interest in common with plaintiffs subject to partition. The defendants Teague set up their 1/32nd nonparticipating royalty interest in the fourth tract and asked that in the partition it remain undisturbed. Defendant Joe L. Culbertson made no formal answer but appeared at the hearing and requested that his 1/32nd interest in the royalty be preserved under the entire 165 acres, it being the fourth tract. All of the parties cited by publication appeared by their attorneys and guardian ad litem and made formal answer. The heirs of Maggie L. Delk in being made no formal answer but several appeared in person and participated in the trial. The appellants, one of the six devisees under the will of Maggie L. Delk in being, alleged their contingent interest in the minerals, depending on the happening of certain events, and they prayed for a just and equitable partition and for general relief.
The court found the interests of the various parties and further found that such interests were susceptible of partition in kind, except certain mineral interests, as hereinafter stated; that the oil lease was valid as to the appellee's 1/2 fee simple interest as well as to the royalty interests of the Teagues and Culbertson but not on the life interest of appellee, nor the remaindermen thereunder. Upon the trial the court heard testimony and opinions of some of the parties as to whether it was practical and equitable to partition the mineral interest in kind in view of the oil lease which the court had held binding on all who had legally executed said lease. The court further found in effect that since no party desired his royalty interest sold for partition nor divided in kind unless the life estate and the contingent interest thereunder in the Jones County land could be set aside in kind so that all the remainder of such tract could be leased, and the court being of the opinion that such contingency prevented the making of such lease, entered its decree leaving the mineral interest under the Jones County tract unpartitioned and owned as set forth in the instruments creating the same. (We are in accord with the court's view in this behalf.) No objection was made or appeal perfected to this order. It is well settled as to partition suits that a judgment that determines the rights of the parties and appoints commissioners to divide land in conformity therewith is final and appealable. See White v. Mitchell, 60 Tex. 164; Waters Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326; Henderson v. Stone, Tex.Civ.App., 95 S.W.2d 772; 3 A Tex.Jur. 135, sec. 97. Since the district court in Ellis County had jurisdiction of the parties and the subject matter and was invested with power to decide every issue of the controversy, if error was committed in the decree (and we think none was committed), the decree was not void because remedy was by appeal. See 25 Tex.Jur. 700, sec. 258; Mitchell v. Mitchell, Tex.Civ.App., 233 S.W.2d 187, 189; Clark v. Puls, Tex.Civ.App., 192 S.W.2d 905, 908; Roberts v. S.W. Life Ins. Co., Tex.Civ.App., 244 S.W.2d 302, point 7. See also Vol. 17, Partition, Title 104, Vernon's Ann.Civ.Stats.; also Rules 756-771, incl., Texas Rules of Civil Procedure.
Appellants' point 1 is to the effect that since their prayer asks for partition that it was error for the court to refuse to do so; point 2, where there is no finding that a portion of the property is not susceptible of partition, it is error for the court to refuse to...
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