Hermann v. Likens

• Decision Date: 25 February 1897
• Citation: 39 S.W. 282
• Parties: HERMANN v. LIKENS et al.
• Court: Texas Supreme Court

39 S.W. 282

HERMANN v. LIKENS et al.

Supreme Court of Texas.

February 25, 1897.

Error to court of civil appeals of First supreme judicial district.

Action by J. D. Likens and others against George H. Hermann. From a judgment of the court of civil appeals (37 S. W. 981) affirming a judgment for plaintiffs, defendant brings error. Reversed.

Wm. H. Crank, Sr., and E. P. Hamblen, for plaintiff in error. Coleman & Ross, for defendants in error.

GAINES, C. J.

This writ was brought by the defendants in error, as heirs of their father, J. B. Likens, and their mother, Salina A. Likens, to recover of the plaintiff in error and James McNee and N. C. Abbott an undivided interest in a tract of land, a part of the Pleasant W. Rose survey. The plaintiffs recovered a judgment in the trial court, from which defendant Hermann alone appealed, making his appeal bond payable to the plaintiffs only. In the court of civil appeals the appellees moved to dismiss the appeal for want of proper parties, and the motion to dismiss was submitted and taken with the case. Without expressly ruling upon the motion, that court disposed of the case upon its merits, and affirmed the judgment. The appellees, now the defendants in error, again move to dismiss upon the ground that the appeal bond was insufficient to give the appellate court jurisdiction of the appeal. The land in controversy at one time belonged to J. B. Likens, the ancestor of defendants in error, and to D. P. Shepherd, each holding an undivided one-half interest therein. J. B. Likens having died, his interest was sold by his administrator under an order of the probate court, and the plaintiff in error succeeded by regular conveyances to whatever title, if any, passed by that sale. Subsequently plaintiff in error and Shepherd executed deeds of partition by which Shepherd conveyed to plaintiff in error the one-half of the tract now claimed by the latter in this suit, and plaintiff in error conveyed to Shepherd the other half. McNee and Abbott, two of defendants in the trial court, claimed each a separate parcel of the half so conveyed to Shepherd under regular chains of conveyances proceeding from him. In their answers McNee and Abbott alleged that the land was of equal value, and prayed that, in the event the plaintiffs recovered, the tracts respectively claimed by them should be set apart to them in the partition. Replying to their answers, in a supplemental petition, the plaintiffs (as we understand their pleading) joined in this prayer, and by consent of parties, as the record shows, the judgment was entered accordingly. There was no dispute as to the fact that McNee and Abbott owned the Shepherd interest in the tract in controversy. The only question affecting them which could arise is, was that an undivided interest in the whole or title in severalty to the parcels respectively claimed by them? As between plaintiff in error and them this question could not arise. He was bound by the partition between Shepherd and himself, and claimed only the half conveyed to him in that partition. Hermann being bound by the partition, and the plaintiffs having acquiesced in the prayer of McNee and Abbott for the ratification of that partition in the event they recovered against Hermann, it is apparent that there was no real controversy between McNee and Abbott and any other party to the suit, and that all possible controversy was settled by the agreed judgment of partition. Their rights, as against all parties to the suit, then became fixed; and the plaintiffs, if entitled to anything at all, became entitled to the half of the land claimed by Hermann, and not to an undivided half of the whole. Hermann claimed nothing as against his co-defendants. This court has held that one suit to try title to land, brought against more than one defendant, may in its progress so resolve itself into separate issues between the plaintiff and each of the defendants as to create, in legal effect, separate suits, which may be tried at different terms and may admit of separate appeals. Boone v. Hulsey, 71 Tex. 176, 9 S. W. 531; Chambers v. Fisk, 9 Tex. 261. This occurs when a suit is brought against several defendants for the recovery of a tract of land, and each sets up claim to a distinct parcel, and disclaims as to the remainder of the tract. This is not quite that case, though it is analogous in principle. The progress and result of the suit eliminated all controversy as to the title of the land claimed by McNee and Abbott, and resolved itself into a contest between the plaintiffs and defendant Hermann as to the title to that half of the land claimed by him. McNee and Abbott were not adverse to Hermann in the pleadings, nor did they become adverse by the judgment. The agreed judgment between them and the plaintiffs settled all issues between those parties, and left them without any further interest to be affected by the further prosecution of the suit. No reason is seen why they should be dragged along with the case in the progress of the litigation. The appeal bond must be made payable to all adverse parties, but they had no interest adverse to that of the appellant in the court of civil appeals. The judgment may be reversed as to him, without being set aside as to them. We therefore overrule the motion to dismiss.

This brings us to the merits of the case. As to the half interest in the land in controversy between the plaintiff in error and defendants in error, J. B. Likens was the common source of title. The plaintiff in error claimed under a sale of the land made by the administrator of Likens, and the defendants in error claimed title as his heirs. The question is, was the sale valid? This depends upon the description of the land given in the proceedings of the county court and in the administrator's deed. Defendants in error insist that it is vague and uncertain, and therefore insufficient to pass the title. In Hurley v. Barnard, 48 Tex. 83, it is held "that the description in the order of sale may be aided by the inventory and other matters of record pertaining to the administration." See, also, Davis v. Touchstone, 45 Tex. 490. The land in controversy is an undivided one-half interest in 893 acres in Harris county, a part of the headright survey of Pleasant W. Rose; and in the inventory, the petition for an order of sale, the report of sale, the order of confirmation, and in the administrator's deed it is substantially so described. It was not placed upon the original inventory, but in an additional list of assets the administrator reports to the court that since his first inventory he had "discovered the following described real estate belonging to his intestate," etc. Then follows a list of lands and lots in which is found the property in controversy as above described. In the petition for the order of sale he also reports that in obedience to a previous order of the court he had sold "the following described property belonging to the estate of J. B. Likens, deceased," etc. (giving a list of the property), and that the purchasers had failed to comply with the terms of the sale. He therefore prayed the order to resell it. In the list appears the undivided interest in the tract in controversy, described as above. The order of sale recites the substance of the petition, and orders the administrator to resell the property therein described. It also copies the list of lands to be sold from the petition. This order was made at the January term, 1881, of the court, and at the March term next thereafter an order of confirmation was...