Morris v. Morris

• Decision Date: 18 January 1907
• Citation: 99 S.W. 872
• Parties: MORRIS et al. v. MORRIS et al.
• Court: Texas Court of Appeals

99 S.W. 872

MORRIS et al. v. MORRIS et al.

Court of Civil Appeals of Texas.

January 18, 1907.

Error from District Court, Cherokee County; James T. Perkins, Judge.

Action by Mrs. Clara Morris for herself and as next friend of her infant child against Mrs. C. M. Morris and others. Judgment for defendants. Plaintiffs bring error, and defendants make cross-assignments. Reversed and remanded, with instructions.

Willson & Watkins, for plaintiffs in error. McClure, Whitman & Lloyd, for defendants in error.

PLEASANTS, J.

This is a suit for partition brought by Mrs. Clara Morris for herself and as next friend of her infant child, Henry Louie Morris, against the defendants in error, the subject-matter of the suit being real estate situate in Cherokee county. The petition is in proper form and correctly describes the property sought to be partitioned, all of which is alleged to be owned by the plaintiffs and defendants, and the interests owned therein by each of the parties to the suit is correctly stated. Plaintiff claims for herself a life estate in an undivided one-sixth of a portion of the property and an undivided one-twelfth of the remainder, and for her minor child an undivided interest in fee in the whole property. To this petition the defendants filed the following plea in abatement: "Now comes the defendant and moves the court that this cause abate, for the reason that the petition filed by Mrs. Clara Morris shows upon its face that said Mrs. Clara Morris seeks to prosecute this suit as next friend and mother of the minor, Henry Louie Morris; that said Henry Louie Morris is a minor about ten months old, and is incapable of bringing or directing a suit in any way; that this is a suit for partition of land, and can only be prosecuted by a legally appointed guardian of said minor, under the direction of court; that said plaintiff Mrs. Clara Morris has no right to sue in this case for an undivided life estate in said property; that this suit, being prosecuted in the way it is done, is without the authority of any court, or by any person directed by said minor, or responsible to said minor for any damage that may be occasioned herein. Wherefore defendants pray the court that this suit abate for the want of proper parties, unless the same be prosecuted by a guardian or some person that can be held responsible herein." They further answered by general denial and various special pleas, among which was a plea of homestead as to a portion of the property sought to be partitioned, and also the following: "Defendant says: That it will not be to the interest of said minor, Henry Louie Morris, and this defendant to partition and divide any of the lots mentioned in plaintiff's petition; that all of said lots are in the town of Jacksonville, at this time a growing, thriving, prosperous town, and said lots are increasing in value; that to partition and divide said lots at this time will be an irreparable injury and damage to this defendant and said minor. That at this time there is no guardian of the estate of said minor, Henry Louie Morris, or any other person responsible to said minor for the injury and damage that may be done said minor by a partition of all or any part of said property. That she believes and so charges that this suit is instigated and prosecuted by one ____ Green, the father of plaintiff Mrs. Clara Morris, who is wholly an irresponsible and insolvent man, and for the purpose to get control of the property of said minor for his own use and benefit, and that it will be squandered and wasted, and said minor never receive any benefit of said property. That Jacksonville, the town in which said lots are situated, is a thriving, growing, prosperous town, and said property increasing in value, and will increase in value much more. That, in her opinion, said lots and property is not such as can be partitioned, and will have to be sold, and the proceeds divided as provided by law, and defendant charges and says that, by the sale of said lots, said minor and this defendant will suffer an irreparable injury and damage." The plea in abatement was overruled. The trial upon the merits was by the court without a jury, and resulted in a judgment in favor of defendants denying plaintiffs a partition of the property.

The conclusions of law and fact filed by the trial court which are pertinent to the issues presented on this appeal are as follows: "(1) That the property described in plaintiff's petition, and of which they seek a partition, is owned by the parties plaintiff and defendant in the parts and proportions, undivided, mentioned in said petition; and that the relationship of the parties is as stated in said petition. (2) That the property described in said petition as lot No. 9, and part of lot No. 10, in block No. 136, in the town of Jacksonville, was not, after the death of the husband of the defendant Mrs. C. M. Morris used as the place of business of the head of her family, but that the same was after her husband's death rented out to tenants, and the rents and revenues therefrom distributed among the owners of said property according to their respective interests therein. * * * (4) That the plaintiff, Henry Louie Morris, is a minor, and, at the date of the institution of this suit, was only a few months old. (5) That the property described in plaintiff's petition is not susceptible of a partition without a...