Howell v. Fidelity Lumber Co.

• Citation: 228 S.W. 181
• Decision Date: 02 March 1921
• Docket Number: (No. 200-3267.)
• Parties: HOWELL v. FIDELITY LUMBER CO.
• Court: Supreme Court of Texas

228 S.W. 181

HOWELL v. FIDELITY LUMBER CO.

(No. 200-3267.)

Commission of Appeals of Texas, Section A.

March 2, 1921.

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

Action by the Fidelity Lumber Company against Mrs. R. C. Howell and others. Judgment so far as favorable to the named defendant was reversed by the Court of Civil Appeals (206 S. W. 947), and she brings error. Judgment of Court of Civil Appeals affirmed.

R. A. Shivers, of Woodville, and V. A. Collins, of Beaumont, for plaintiff in error.

Thomas & Wheat, of Woodville, and Baker, Botts, Parker & Garwood, of Houston, for defendant in error.

SPENCER, J.

Defendant in error, Fidelity Lumber Company, sued plaintiff in error, Mrs. R. C. Howell, and the defendants named in the petition, in trespass to try title to the 480-acre tract of land described in the petition.

Defendant G. C. Howell sought by virtue of the 10-year statute to establish title to 40 acres of the land, but the jury found adversely to his claim, and he did not appeal from the judgment rendered.

Plaintiff in error, as well as the other defendants, disclaimed as to all of the land except a tract of 160 acres described in the first amended original answer and sought to establish title thereto by the 10-year statute.

The facts relied upon to establish limitation title are these: In 1898, I. P. Howell, the husband of plaintiff in error, with his family entered upon the land in controversy and continued to live thereon until his death in 1910, and after his death plaintiff in error with the children continued in possession. In December, 1906, J. A. Mooney sued Howell in trespass to try title to recover the 480 acres of land; and Howell, though cited, defaulted, and judgment was rendered against him in Mooney's favor, and writ of restitution and possession was awarded Mooney.

Plaintiff in error alleged, and the jury found, that I. P. Howell, husband of plaintiff in error, was insane prior to the filing of the suit by Mooney, and that plaintiff in error had actual, peaceable, and adverse possession of the 160-acre tract of land, cultivating, using, and enjoying the same for a period of 10 full years subsequent to the time that I. P. Howell became insane and before the date of filing of the petition in this case on October 11, 1916.

The district court rendered judgment based upon the finding of the jury in favor of defendant in error for all the 480 acres of land except the 160 acres described in plaintiff's petition, which was awarded to plaintiff in error. Upon appeal the Court of Civil Appeals reversed and rendered the judgment as to the 160-acre tract in favor of defendant in error. 206 S. W. 947.

Plaintiff in error seeks to avoid the effect of the judgment against the insane husband upon the theory that the title to the community property upon his becoming insane passed to her in virtue of Rev. St. 1911, art. 3593, and that as she was not served in the suit, the court acquired no jurisdiction over the person legally responsible to answer for the community, and therefore the community property could not be affected by the judgment rendered. Was she, therefore, a necessary party to the suit?

Article 3593 reads:

"Where the husband or wife dies intestate, or becomes insane, having no child or children, and no separate property, the common property passes to the survivor, charged with the debts of the community; and no administration thereon or guardianship of the estate of the insane wife or husband shall be necessary."

This article does not apply where there are children, but where, as here, there are children, articles 3594 and 3609 give the wife the exclusive management, control, and disposition of the community property provided that she qualifies by giving the bond required by article 3598.

Article 3594 reads:

"Where the wife dies or becomes...