Keener v. Moss

Decision Date04 May 1886
Citation18 S.W. 447
PartiesKEENER <I>et al.</I> v. MOSS.<SMALL><SUP>1</SUP></SMALL>
CourtTexas Supreme Court

Appeal from district court, Hays county; H. TEICHMUELLER, Judge.

Suit for partition by Duff Moss against Joseph Keener and others. Judgment for partition and sale of the land. Keener appeals. Reversed.

Hutchison & Rose, for appellant. Wood, Fisher & Ford, for appellee.

WILLIE, C. J.

The decree rendered in this cause recites that it appeared from the pleadings and evidence that the property sought to be partitioned was not susceptible of division among those entitled to distributive interests therein, and for that reason the court ordered a sale of the property, and a distribution of the proceeds of sale among the several part owners thereof. There was no appointment of commissioners to make partition of the property, as required by statute. Rev. St. art. 3469. This proceeding is statutory, and the judgment for a sale of the land sought to be partitioned is authorized only in the event that the commissioners report to the court that a fair and equitable division of the real estate to be divided, or some part thereof, cannot be made. Rev. St. art. 3479. The statute guaranties to each party interested in the proceeding the right to file objections to this report of the commissioners, and to have the issue as to its correctness tried as in other cases. Rev. St. art. 3480. Of this right the appellant was deprived in this case, as no report was made. It is no answer to this to say that he could have made his objections to a sale of the land for partition upon trial of the cause. That is not the time at which the statute said he must make them, and he was entitled to all the indulgence, in this respect, allowed by the statute. The statute not intending that these objections should be made before the commissioners' report was returned into court, and as this could not be done until a decree fixing the rights of the parties had been entered, he was not bound to appear before the entry of the decree, if he had no objection to the interest of the parties being fixed in accordance with the prayers of his adversaries. He might have been willing that the plaintiff and his co-defendants should recover the amounts of land claimed by them, and yet not willing that the whole lot should be sold for partition. If so, the proper time for him to object to an order of sale was when it should be recommended in the report of the commissioners. Admitting that the answer of L. M. and G. C. Reed notified him that they would ask judgment for a sale of the land for the purposes of partition, (which we do not decide,) it did not give him notice that this judgment would be asked out of due order, and without a compliance with...

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5 cases
  • Henderson v. Chesley
    • United States
    • Texas Court of Appeals
    • April 8, 1925
    ...may still be had to a partition upon equitable principles without the aid of these statutes. Tieman v. Baker, 63 Tex. 641; Keener v. Moss, 66 Tex. 188, 18 S. W. 447. It will be noted from this history that statutory partition, limited at first to estates of inheritance, life estates, and es......
  • Johnson v. Johnson
    • United States
    • Texas Court of Appeals
    • December 14, 1916
    ...plaintiffs, they are liable for and to the extent of the costs thereby incurred. Johns. v. Northcutt, 49 Tex. 444; Keener v. Moss, 66 Tex. 184, 18 S. W. 447. The court in the decree made a charge against the lands divided: (1) Of $179.40 and $75 in favor of Jerry Johnson; (2) to Amanda Smit......
  • Powell v. Naylor
    • United States
    • Texas Court of Appeals
    • April 29, 1903
    ...for all costs incurred by them in contesting the rights of the successful plaintiffs. Johns v. Northcutt, 49 Tex. 444; Keener v. Moss, 66 Tex. 181, 18 S. W. 447; Askey v. Williams, 74 Tex. 294, 11 S. W. 1101, 5 L. R. A. The judgment is affirmed. * Rehearing denied May 20, 1903, and writ of ......
  • Kalteyer v. Wipff
    • United States
    • Texas Supreme Court
    • June 15, 1899
    ...in kind, and at the same time satisfy the claim of plaintiff and interveners for rents. The decision in the case of Keener v. Moss, 66 Tex. 181, 18 S. W. 447, is relied on as sustaining the affirmative of the question above stated, and it must be admitted that it goes far in that direction.......
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