Holloway v. McIlhenny Co.

• Decision Date: 17 June 1890
• Citation: 14 S.W. 240
• Parties: HOLLOWAY <I>et al.</I> v. McILHENNY CO.
• Court: Texas Supreme Court

14 S.W. 240

HOLLOWAY et al. v. McILHENNY CO.

Supreme Court of Texas.

June 17, 1890.

Appeal from district court, Bosque county.

L. H. Lumpkin, for appellants. Gillette & Murrell, for appellee.

GAINES, J.

This suit was brought by the appellee, a private corporation, to recover of appellants an undivided one-half interest in a tract of land described in the petition, and for partition. The plaintiff claimed, under a sale of the land under execution by the sheriff of Bosque county to one Emmerson. The land was levied upon and sold as the property of Simpson Holloway, one of appellants. It was conveyed to him in the year 1875. He had occupied it for many years previous to the conveyance, with his wife, but she had died a few months prior to that time. All parties to the suit seem to concede that one-half of the land belongs to her heirs. The plaintiff recovered a judgment for one-half of the premises sued for, and the heirs of Mrs. Holloway for the other half, and there was a decree for partition.

The judgment is erroneous, and must be reversed. The undisputed testimony adduced upon the trial showed that there were descendants of Mrs. Holloway who were entitled to interests in the land, and who were still living, that were not made parties to the suit. That all tenants in common are indispensable parties to a suit for partition is well settled in this court. Channel Co. v. Bruly, 45 Tex. 6; McKinney v. Moore, 73 Tex. 470, 11 S. W. Rep. 493; Parker v. Chancellor, 73 Tex. 475, 11 S. W. Rep. 503. Appellee insists that, because there was no attempt in the court below to arrest the proceedings for want of necessary parties, until the final judgment was amended at a term subsequent to that at which the trial was had, the objection comes too late. But we are of opinion that the error cannot be cured by failure to take action in the trial court. A decree of partition in a suit to which one or more of the owners of the land are not parties does not affect their rights. They cannot be bound by the decree, and can have it set aside in any proper proceeding in which all parties are before the court. Courts of justice do not sit to enter empty decrees, and hence will arrest a proceeding of this character for want of necessary parties at any stage of the proceedings. The rule results from the impossibility of making a binding decree without having all parties who own an interest in the land to be affected by it before the court.

Without discussing in detail the assignments of error, we will notice only such questions as may arise upon another trial. It is insisted that the court should upon exception have stricken out the exhibits to plaintiff's amended original petition. These are the articles of incorporation of the plaintiff, a certified copy of the judgment of the district court of Bosque county, and a copy of the mandate of the supreme court showing an affirmance of that judgment. We are of opinion that the exceptions were not sufficient to raise the question; but we take occasion to say that the setting out at length in the pleadings of either party of written instruments or documents about the construction of which no question is raised is a useless incumbrance of the record and should be discouraged. The statute provides that in pleading the existence of a corporation it shall be sufficient to allege that it is duly incorporated, and that the allegation shall be taken as true, unless it be denied under oath. Sayles, Ann. St. art. 1190. We see no reason why the recovery of the judgment in the district court and the mandate and its contents could not have been sufficiently alleged without annexing copies to the petition. If all these exhibits had been excepted to as being unnecessary incumbrances of the record, we think they should have been stricken out.

The plaintiff pleaded specially its title, and alleged a misrecital in the execution under which the land in controversy was sold. According to the allegation, the execution recited that a judgment had been recovered in the district court of Bosque county in favor of one Percival against one Buffle, and others, as principals, and against Simpson Holloway and others as sureties, when in fact the judgment of the district court was not against Holloway and his co-sureties. They were sureties on the writ of error bond of the defendants in the district court, and as such a judgment was rendered against them in the supreme court upon a affirmance of the judgment of the lower court. It is insisted that the court below should have sustained the demurrer to the ...