Houston v. Blythe
| Decision Date | 13 November 1888 |
| Citation | 10 S.W. 520 |
| Parties | HOUSTON <I>et al.</I> <I>v.</I> BLYTHE <I>et al.</I> |
| Court | Texas Supreme Court |
Appeal from district court, Hopkins county; J. A. B. PUTNAM, Judge.
Action for partition. C. M. Houston and Nancy Houston appeal from the decree confirming the report of the commissioners.
Harris & Milam, for appellants. John L. Henry, for appellees.
This action had its beginning in an action of trespass to try title, begun in the year 1859, but all questions of title were finally settled by a judgment rendered on April 11, 1887. The suit, as to the persons who were adjudged to own undivided interests in the land, was also for partition. By the judgment entered on April 11, 1887, the respective interests of those persons were determined, and commissioners were appointed to make partition. The decree, through which this was done, gave general directions, in accordance with law, to the commissioners as to the mode of their procedure. The commissioners then appointed made a partition, and reported it to the court, but, on exceptions made to it by one of the interested parties, the report was set aside by an order made at the April term, 1888, when the commissioners theretofore appointed were removed, and others appointed in their stead. The order through which this was done gave to the commissioners then appointed more specific directions as to the manner in which they should proceed in making partition, but it in no way varied the rights of the several parties from the determination made by the original decree directing partition. The commissioners last appointed made a partition, which they reported to the court. Exceptions to this were filed by appellants, but the court, after hearing much evidence, overruled the exceptions, approved the report, and by decree made partition of the land in accordance with the recommendations contained in the report, and from that decree this appeal is prosecuted by the holder of one share, all others being satisfied.
There are but three assignments of error, and the second is as follows: "The court erred in rendering an additional and different judgment to the original judgment herein rendered on the final trial hereof, and had no authority in law to change, amend, or render any other judgment than to reject or confirm the report of the commissioners, as shown by judgment setting aside report of commissioners herein." As before said, the instructions given to the commissioners last appointed did not in any manner change the right of the interested parties as fixed by the decree of April 11, 1887. They were but more specific, and the matter to which this assignment of error is directed consists of an instruction to the commissioners that they were at liberty, if they thought it necessary, to make a fair partition of the land; to divide the tract to be partitioned into as many several tracts or parcels as they might think necessary; after which they should divide the land into as many shares as there were persons entitled, each of which should contain one or more of the parcels into which the...
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