Mitchell v. Mitchell

• Decision Date: 03 March 1891
• Court: Texas Supreme Court
• Parties: MITCHELL <I>et al.</I> v. MITCHELL.

15 S.W. 705

MITCHELL et al. v. MITCHELL.

Supreme Court of Texas.

March 3, 1891.

Appeal from district court. Galveston county.

T. M. Joseph and Scott & Levi, for appellants.

James B. & Charles J. Stubbs, for appellee.

HENRY, J.

Appellee, Margaret J. Mitchell, filed suit in trespass to try title against William B. Mitchell, Charles S. Mitchell, H. Z. Mitchell, Elizabeth A. Mitchell, Laura B. Mitchell, a minor, Mary C. Burbank, and her husband, H. C. Burbank, Jennie C. Walton and her husband, C. Walton, and William R. Johnson, temporary administrator of the estate of J. S. Mitchell, to recover certain real property in Galveston. Judgment was rendered for appellee. All of the defendants, except Laura B. Mitchell, appeared, and answered by a general demurrer and plea of not guilty. Subsequently the defendants Johnson and Elizabeth A. Mitchell filed amended pleadings, as follows: Defendant W. R. Johnson, temporary administrator of the estate of J. S. Mitchell, deceased, answered "not guilty," and filed an exhibit of the funds by him received and disbursed for account of said estate. Elizabeth A. Mitchell pleaded in abatement that, before suit was brought, appellee had conveyed one-fourth part of the premises sued for to Willie, Mott & Ballinger and F. D. Minor, who owned and claimed such interest, and should be parties defendant to the suit; and that these facts were unknown to Elizabeth A. Mitchell until after filing her original answer in the suit, and that she pleaded the matter on first opportunity after learning it. She further pleaded that appellee derived title, if any she had, to the property sued for, through her (appellee's) deceased husband, James S. Mitchell, who acquired said property during his marriage with plaintiff; that James S. Mitchell, by last will, probated in a court of competent jurisdiction in Stearns county, Minn., provided that appellee should take the property involved in this suit, upon condition that she should accept the same in lieu of all rights which by the laws of Minnesota she would have in the testator's estate, real and personal, and if she should not within such time as might be fixed by the court (meaning a reasonable time) or by law relinquish all her rights under the statute, and accept the provisions of the will in lieu thereof, such provision should be null and void, and she should receive only such part of his estate as under the laws of descent and distribution she would be entitled to, and all property so intended to be devised to her by said provision, if the same were not so accepted by her and her other rights relinquished, was by the will devised to the defendant Elizabeth A. Mitchell; that, though a reasonable time had elapsed since the probate of the will, appellee had failed to make the election imposed upon her by the will as a condition of her taking the property herein sued for, but had sought, and was still seeking, to avoid making such election, and was contesting the probate of the will by proceedings in the supreme court of Minnesota, which would be finally heard in said court at its October session, 1889, when and where it was alleged said will would in all probability be finally adjudicated valid as against the contest of appellee. 44 N. W. Rep. 885. Said defendant charged that the purpose of this suit, pending the contest of said will, was to enable plaintiff, by obtaining judgment in this suit, to plead the same as res judicata against this defendant, when, under the provisions of said will, she should make claim to said property, as reverting to her through the rejection of the terms of the will by appellee, and so appellee would be enabled to reject the will, and at the same time claim the property under judgment of this court, obtained before said will could be regarded as finally established, all of which was contrary to equity and good conscience. She prayed that this suit be stayed until the contest of said will should be determined, or, if the court should rule otherwise, then that it be on condition that the proceedings in this suit should be without prejudice to the rights of said defendant under said will whenever the contest should be determined, and that the proceedings in this suit should be so ordered and directed as to leave open the rights of this defendant to claim under the will when finally established. She also pleaded "not guilty" and a general denial. Appellee demurred and excepted to the special pleas of Elizabeth A. Mitchell, because the plea of non-joinder came too late after answer to the merits, and no sufficient reason was shown why it was not earlier filed; and, further, because it was otherwise insufficient in law, and because the plea for stay of proceedings could not affect the issue in this suit, and because the will had not been probated in this state; and she also traversed the facts alleged in said pleas, and pleaded a release to her by Willie, Mott & Ballinger and F. D. Minor of their interests in the property sued for. The court sustained the appellee's demurrers. Laura B. Mitchell answered "not guilty" by guardian ad litem appointed by the court. Upon the verdict of a jury, judgment was rendered in favor of the plaintiff for all of the land in controversy against all of the defendants.

Plaintiff's contention was that the property in controversy was purchased during her marriage with J. S. Mitchell by the said J. S. Mitchell; that, while the deeds for the property were made to her husband, the purchase money belonged to her separate estate; and that the lands were purchased by her separately, and never became the community property of herself and her husband. The plaintiff, before her marriage to J. S. Mitchell, was a widow, and had some separate property. She was merchandising, conducting a retail produce business. The evidence indicates that, before he married plaintiff, J. S. Mitchell had very little, if any, capital. Subsequently to his marriage he conducted a retail produce mercantile business under the style of J. S. Mitchell & Co., in which plaintiff claimed that she owned the capital. The court did not err in sustaining the plaintiff's exceptions to the pleadings of the defendant Elizabeth S. Mitchell. If the plaintiff succeeds in establishing her title to the whole of the property in controversy as her separate property, her title cannot be affected by any disposition made of it by her husband's will. What affect her claiming the property in controversy and establishing her title to it may have upon her right to take property belonging to the estate of her husband, and devised to her by his will, is not an issue in this suit. If any of the property in controversy belongs to the estate of plaintiff's deceased husband, and shall not be recovered by her in this suit, the rights of his other devisees, if they shall succeed in establishing his will against the opposition of the plaintiff, will not be prejudiced by the result of this suit. If it be conceded that Willie, Mott & Ballinger and Minor owned an undivided one-fourth interest in the property in controversy, and are tenants in common with the plaintiff, that presents no reason why she may not prosecute this suit to a final judgment.

It has been repeatedly held by this court that one tenant in common may maintain an action of trespass to try title against a trespasser without joining his co-tenants. Appellants complain of the following proceedings in the district court: "The court proceeded to impanel a jury to try the cause from the regular panel for the week during which the cause was called for trial. Challenges to said panel for cause were made and allowed; the remaining jurors, 20 in number, were regularly drawn by the clerk, and written, as drawn, upon several slips of paper, which were delivered to the attorneys for the parties to the suit, as provided in articles 3088, 3089, and 3090 of the Revised Statutes. The attorneys made their peremptory challenges to the jurors by erasing from said list the names of the jurors so peremptorily challenged. The lists were returned to the clerk, and the names of the jurors not erased were called off, ten in number, the defendants having peremptorily challenged five of the jurors so drawn. The court ordered the sheriff to summon two talesmen to complete the jury, and, the talesmen having been summoned and reported, the defendants demanded that their names should be drawn, and lists thereof made, as in the case of the regular jurors so drawn, and that the defendants be permitted to exercise the right of peremptory challenge upon the two talesmen, so far as said right had not previously been exhausted as stated. The court refused the demand in every part, and denied the defendants the right of peremptory challenge upon the talesmen so summoned, though defendants had only challenged peremptorily five of the jurors offered to be impaneled, and ordered the two talesmen so summoned to be sworn and impaneled to complete the jury, and it was accordingly done."

The defendants were entitled to six peremptory challenges. Rev. St. art. 3084. The statute directs that the names of the jurors shall be drawn by the clerk from the box, and that he shall write their names as drawn upon several slips of paper, which he shall deliver to each of the parties or their attorneys; that when, in the district court, there shall not be as many as 12 drawn from the box, other qualified persons shall be summoned to complete the panel, "and the names of such persons so summoned shall be placed in the box and drawn and entered upon slips, as provided in the preceding article;" that when, in the district court, as many as 12 are drawn, and the slips containing their names are delivered to the parties, challenges for cause shall be made if desired; that if the number of jurors is reduced to less than 12, by challenges for cause, other jurors shall be drawn or summoned, and entered upon the slips in place of those who have been set...