Gonzales v. Gonzales, 11980.
| Decision Date | 26 October 1949 |
| Docket Number | No. 11980.,11980. |
| Citation | 224 S.W.2d 520 |
| Parties | GONZALES et al. v. GONZALES. |
| Court | Texas Court of Appeals |
E. T. Yates, Brownsville, for appellant.
L. G. Mathew, Brownsville, for appellee.
As the appellee has filed no brief in this case, we accept as correct the statements contained in appellants' brief relating to the facts and the record. Rule 419, Texas Rules of Civil Procedure.
It appears from appellants' brief that in 1938 a decree of partition was entered (Cause No. 15486) dividing 247.3 acres of land formerly owned by Juana Duenes, into six shares. One share was set aside to Bernardino Gonzales, a brother of Juana Duenes. This share was the first one described in the decree of partition, but none of the shares were actually given a number in the decree. It was also provided in the decree that Bernardino should move his house onto the share of land allotted to him by the partition.
Bernardino Gonzales, joined by his wife, Ysidra Gonzales, then executed a deed purporting to convey the west half of the share awarded to him by the partition decree rendered in said Cause No. 15486. This share, however, was described as Share No. 6. The grantee named in the deed was Maria Rios de Gonzales, the wife of a deceased brother of Juana Duenes. Seven years later, in 1945, Maria Rios de Gonzales brought suit (Cause No. 21701) against Bernardino Gonzales seeking a recovery of title and possession to the west one-half of the share awarded to said Bernardino Gonzales in the partition decree. This share was described by metes and bounds according to the description contained in said decree. As grounds for recovery, it was alleged that plaintiff in said suit, who is the appellee here, had entered into an agreement prior to the rendition of the partition decree in Cause No. 15486, under which Bernardino agreed that he would hold one-half of the land which should be awarded to him in said decree in trust for the said Maria Rios de Gonzales, and that the 1938 deed was executed in consummation of this agreement. Judgment was rendered in favor of Maria Rios de Gonzales in conformity with the allegations of her petition and shows that it was based upon the alleged parol agreement entered into between Bernardino and the appellee here. Ysidra, the wife of Bernardino Gonzales, was not made a party to the 1945 suit.
In 1948 the present action was brought by Bernardino and his children (his wife having died), seeking a recovery of the entire share awarded to Bernardino in the partition decree. They alleged, according to the brief, "that, in case appellee pleaded it as Res Adjudicata, the decree in Cause No. 21701 is void, because the property was the homestead of said Bernardino and of his said wife, Ysidra, when that suit was filed and when the decree therein...
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