Hyde v. Hyde, 4532.

• Court: Court of Appeals of Texas
• Writing for the Court: Walker
• Citation: 212 S.W.2d 226
• Parties: HYDE v. HYDE et al.
• Docket Number: No. 4532.,4532.
• Decision Date: 03 June 1948

Page 226

212 S.W.2d 226 HYDE
v.
HYDE et al. No. 4532. Court of Civil Appeals of Texas. Beaumont. June 3, 1948.

Appeal from District Court, Tyler County; W. B. Browder, Judge.

Suit for partition of realty by T. M. Hyde and others against Amos P. Hyde and others. Amos P. Hyde filed a cross-action. From a preliminary decree of partition, Amos P. Hyde appeals.

Reversed and remanded.

J. R. McDougald and Lefler, Walker & Walley, all of Beaumont, for appellant.

J. E. Wheat and Grover C. Lowe, both of Woodville, for appellees.

WALKER, Justice.

This appeal was taken from a preliminary decree of partition rendered in a suit brought for the partition of certain lands in the town of Woodville, in Tyler County, which had been a part of the community estate of T. E. Hyde and wife, N. L. Hyde. Mr. and Mrs. Hyde were dead at the time this suit was brought.

The interested parties are the four children of Mr. and Mrs. Hyde, namely, appellees T. M. Hyde and his sister, Mrs. Dora C. Lee, wife of K. W. Lee, and their brothers, E. G. Hyde and the appellant Amos P. Hyde.

Appellees T. M. Hyde and his sister, joined by her husband brought this suit against their two brothers, E. G. Hyde and the appellant Amos P. Hyde, and against E. G. Hyde's wife and a Mr. and Mrs. Lester W. Hewitt as well, praying partition of a large and irregularly shaped tract containing about 28 acres of land. Their original petition was filed on October 18, 1946.

E. G. Hyde answered that he had conveyed all of his interest in this tract to appellant by a deed bearing date about three years before this suit was filed, subject, however, to a reservation in his behalf of one half of his undivided interest in the minerals in and under this tract, and he alleged title to this undivided mineral interest which he declared to be a 1/8 th of the minerals in the whole tract. His wife and Mr. and Mrs. Hewitt disclaimed.

Appellant filed an answer and also filed a cross action for partition, bringing into the scope of the partition two other small tracts of land. Other pleadings were filed by appellant and by appellees, but such parts thereof as are relevant are referred to below.

The cause was tried to a jury, to whom the trial court submitted only one special issue. This issue, and the jury's answer thereto, are also set out below.

The three tracts referred to in the pleadings are also referred to and covered by the partition decree. Together, these three tracts would form a solid tract of land, and probably once did so. The common north boundary of these three tracts is the public highway. The easternmost tract, which we shall call the first tract, is rectangular in form and covers about 1/2 an acre. Adjoining it on the west and south is the second tract, which is El shaped and is perhaps twice as large as the first. The third tract is the 28 acre tract; it adjoins the second tract on the west and extends a considerable distance beyond it to the south. The partition decree finds that the first tract belonged to the appellee Dora C. Lee under a conveyance to her from her father and brothers. The decree set aside the second tract to Mrs. Lee but found that her brothers owned undivided interests in this tract and directed that they be compensated out of their sister's undivided interest

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in the 28 acre tract for the loss of their interests in this tract. These provisions are not attacked and we refer to them only as being explanatory of the litigation.

The occasion of this appeal is the trial court's adjudication concerning a strip running across the north end of the 28 acre tract and adjoining the highway. This strip is 316 feet wide from east to west, and is 240 feet deep from north to south. It is the most valuable part of the 28 acre tract. The trial court's decree, in effect, divides this strip into four lots, numbered from 1 to 4 from east to west, each lot fronting 79 feet on the highway. These lots, under appellees' theory of the facts, which the trial court adopted, were of equal size running back 240 feet to the south line of the strip, but through error, doubtless inadvertent, the tract which constitutes Lot 1 is described in the partition decree as being 220 feet long, instead of 240 feet. The effect of the error is to cloud the title of the present owners of Lot 1, who were not parties to the suit, to the south 20 feet of their lot.

Concerning this 316' × 240' strip, appellees first alleged that Lot 1 had been conveyed to appellant on July 19, 1937, by his father, sister and brothers, apparently as an advancement out of the community estates of his father and mother and for no other consideration, and that this advancement should be charged against appellant's undivided interest in the balance of the 28 acre tract. By trial amendment, appellees set up a different theory, namely, a partition agreement dividing this strip as the trial court has divided it. Whether the parties regarded this agreement, at the time it was made, as executed in fact or as executory is not entirely clear from the allegations. Appellees alleged that Lot 1 had been conveyed to appellant by his father by a deed dated February 22, 1937 (some five months earlier than the deed of July 19th first alleged), that this conveyance was only an advancement to appellant by his father (we infer the pleader's intention to say that this advancement was from the community and not the father's share), that later, but before July 19, 1937, the four children and Dora's husband "had agreed upon a partition of said portion of said estate, being the most valuable portion thereof, under the terms of which said portion was cut up into 4 lots, one for each of the four children of the said T. E. Hyde and that it was understood and agreed by and between them that Lot No. One — should be awarded to — Amos P. Hyde; that Lot No. Two should be awarded to Edgar Hyde; that Lot No. Three should be awarded to T. M. Hyde and Lot No. Four — to Mrs. Dora Lee. That a deed was made, executed and delivered by all of the other parties to the said Amos P. Hyde on July 19, 1937, that said deed was made for the purpose of carrying into effect the previous agreement of said parties with reference to a partition of said property and for the consideration that all of the other parties should thereafter make, execute and deliver deeds to the respective parties for their tracts of land." They alleged further that appellant later acquired the interest of E. G. Hyde and thus had acquired Lot 2. In the alternative, they alleged that "in the event said partition agreement was not consummated" then appellant had "sold Lot 1 and has erected improvements upon Lot 2, and has appropriated it", that his interest ought to be charged with these lots, and that, to effect an equitable distribution, appellees ought to have lots 3 and 4.

In response to this amendment, appellant plead the 2 and 4 years statutes of limitations, and laches.

Under these pleadings, the trial court excepted Lot 1 from the partition, finding that it had been "heretofore conveyed by T. E. Hyde, T. M. Hyde, and Mrs. Dora C. Lee and E. G. Hyde to Amos P. Hyde." The conveyances on which this finding was based are discussed below. Regarding that part of the 316' × 220' strip which was covered by Lots 2, 3 and 4, the trial court found that it had "been subdivided into Lots 2, 3 and 4 and partitioned by agreement, it is ordered that Lot 4 be awarded to Dora Lee, Lot 3 to T. M. Hyde, and Lot 2 to Amos P. Hyde." Doubtless this finding was based in part on the verdict of the jury but on our construction of the proof it represents at least in part an independent fact finding.

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We have referred to the fact that the land involved was once community property of T. E. Hyde and wife, N. L. Hyde. The proof does not show who held the legal title to this estate. Both Mr. and Mrs. Hyde died intestate. Mrs. Hyde died on April 26, 1918. Her husband died on September 22, 1941. The entire interest of Mrs. Hyde vested in her four children under the statutes of descent and distribution, and so did the interest of T. E. Hyde except to the extent that his conveyances, after his wife's death, vested parts of it in specific tracts in his children Amos P. Hyde and Mrs. Dora C. Lee. Only the deeds to appellant are relevant here.

There is evidence from appellee T. M. Hyde that a few days before February 22, 1937, he went upon the ground, in company with his father, his sister's son, and appellant's son-in-law, and surveyed out the four lots into which the trial court has divided the 316' × 220' strip in controversy. What caused him to make this survey, and his purpose in making the survey were not proved....