Early v. Cornelius, 5718.

• Decision Date: 16 May 1931
• Docket Number: No. 5718.,5718.
• Citation: 39 S.W.2d 6
• Parties: EARLY et al. v. CORNELIUS.
• Court: Texas Supreme Court

Page 6

39 S.W.2d 6

EARLY et al. v. CORNELIUS.

No. 5718.

Supreme Court of Texas.

May 16, 1931.

Error to Court of Civil Appeals of Eleventh Supreme Judicial District.

Suit by J. W. Cornelius against Mary Early and others, with cross-actions by defendant named and others. A judgment for defendants was reversed and the cause remanded by the Court of Civil Appeals [24 S.W.(2d) 757], and defendants bring error.

Judgment of the Court of Civil Appeals affirmed.

Thomas & Shapard and B. H. Shapard, all of Anson, and Clem Calhoun, of Amarillo, for plaintiffs in error.

Smith & Smith, of Anson, for defendant in error.

RYAN, C.

This suit was filed on November 30, 1928, by J. W. Cornelius against Mary Early and husband, Charlie Early, Opal Cornelius (a minor), and J. P. Cornelius, individually and as guardian of said Opal Cornelius, for the recovery of approximately 240 acres, in two tracts of land in Jones county.

It is alleged in the petition that J. W. Cornelius and his wife (since deceased) conveyed said lands to their son J. P. Cornelius as a gift, to be his separate property. At that time J. P. Cornelius was a married man. Afterwards the wife of J. P. Cornelius died, leaving surviving the two children, Mary, now the wife of Charlie Early, and Opal, a minor, above named as defendants. After the death of his first wife, J. P. Cornelius married again, and he, joined by the second wife, reconveyed the said lands to J. W. Cornelius, the plaintiff.

It was further alleged that on December 20, 1917, J. P. Cornelius attempted to qualify in cause No. 602, Jones county, Tex., as guardian of the estate of Mary and Opal, his minor children, and to file an inventory in said guardianship proceedings setting out that said two minor children own a one-half interest in and to said lands; that said guardianship proceedings were void and the statements contained in said inventory were false and in truth and in fact they never owned any interest therein.

It was further alleged that the defendants assert "some kind of claim, interest and estate in and to said lands," which casts a cloud thereon. The prayer was for judgment divesting the defendants of any interest or estate in said lands, removal of the alleged cloud on his title, and vesting title and possession of same in plaintiff.

Citation was served on all the defendants, returnable to the then next regular term of court to be held at Anson, in Jones county, on January 7, 1929.

J. P. Cornelius filed no answer and entered no appearance. On January 7, 1929, Mary Early and husband filed their original answer, containing general and special exceptions, general denial, plea of not guilty, and the following special answer, viz.: "And further and specially answering herein come now these defendants and say that the deed set out in the third paragraph of plaintiff's petition alleged to have been executed by J. P. Cornelius and wife, S. E. Cornelius, to plaintiff is void and of no effect. That said deed was executed after the death of defendant Mary Early's mother and the property attempted to be conveyed by her guardian, J. P. Cornelius, to the plaintiff herein was the community property of her said guardian J. P. Cornelius, and her deceased mother, and that same on the death of her mother descended to this defendant, Mary Early, in the proportions of one-fourth of all of the property described in plaintiff's petition, and that same was attempted to be conveyed back to the plaintiff in this case by defendant, J. P. Cornelius, without authority of law and without the consent of these defendants, and that said deeds alleged by plaintiff, one to be of record in Volume 119, page 460, Deed Records of Jones County, Texas, and one in Volume 129, page 449, Deed Records of Jones County, Texas, and one in Volume 129, page 450, of the Deed Records of Jones County, are void as to these defendants and these defendants say that each and all of said deeds cast a cloud upon the title of the defendants to their interest in the land described in plaintiff's petition and these defendants pray that judgment be entered cancelling each and all of said deeds in so far as they attempt to convey the property of these defendants or in any way affect their rights therein and that a judgment of this Court be found and entered to that effect and for all such other and further relief as the defendants may show themselves entitled to, special or general, in law and equity."

On January 31, 1929, the court appointed a guardian ad litem "for the purpose of defending said suit for Opal Cornelius," on the ground that the interest of J. P. Cornelius, guardian of her estate, conflicts with her interest.

On February 5, 1929, plaintiff, J. W. Cornelius, filed the following motion to dismiss: "Now comes the plaintiff, and dismisses this cause of action as against all of the defendants and prays the court that such order of dismissal be entered and at his cost," which was by the court overruled, on the following day, in the following order: "On this the 6th day of February, 1929, came on to be heard the motion of plaintiff, J. W. Cornelius, to dismiss the above cause from the docket of this Court and defendants with pleas for affirmative relief appeared and objected to said motion, whereupon the Court overruled the motion to dismiss, and same is hereby in all things overruled."

On February 6, 1929 (whether before or after the motion to dismiss was denied is not shown), Mary Early and husband filed their amended answer, which was the same as their original answer, with the following additional averment: "And the defendants further show to the Court that the plaintiff owns an undivided one-half interest in the land described in plaintiff's petition, that this defendant, Mary Early, owns an undivided one-fourth interest therein, and that defendant Opal Cornelius, owns an undivided one-fourth interest in all of said land and each and all of the above named parties, plaintiff and defendants, own their respective interest therein in fee simple and as joint owners therein, the same undivided interests. That the two tracts of land described in plaintiff's petition are of the probable value of $12,000.00 and that same is susceptible of partition. That the plaintiff, J. W. Cornelius, has taken possession of said land whereas in truth and in fact the defendant, Mary Early, is entitled to possession of 60 acres thereof. That this Court has jurisdiction to partition same." The prayer in such amended answer being as follows: "Wherefore these defendants pray that judgment be entered cancelling each and all of the deeds described in plaintiff's petition in so far as they attempt to convey the property from ...