Patton v. Byrd, 11889.

• Decision Date: 06 October 1934
• Docket Number: No. 11889.,11889.
• Citation: 75 S.W.2d 456
• Parties: PATTON et al. v. BYRD et al.
• Court: Texas Court of Appeals

75 S.W.2d 456

PATTON et al. v. BYRD et al.

No. 11889.

Court of Civil Appeals of Texas. Dallas.

October 6, 1934.

Rehearing Denied November 3, 1934.

Appeal from District Court, Dallas County; Towne Young, Judge.

Partition suit between Allie Byrd and others and Susie Patton and others. A decree of partition was affirmed, but before execution of judgment on mandate, Susie Patton, one of defendants, filed in the same cause, in effect, an individual action to establish a homestead right. From an adverse judgment, Susie Patton and others appeal.

Affirmed.

W. B. Handley and C. J. Shaeffer, both of Dallas, for appellants.

Bird & Bird, of Dallas, for appellees.

BOND, Justice.

In a suit for partition of real estate and accounting between the parties to this cause, a judgment was entered, decreeing a partition of the property belonging to the estate of the deceased parents of appellants and appellees. An appeal was perfected to this court, but the cause was affirmed on certificate, and a mandate issued to the lower court.

Before the execution of the judgment on the mandate, one of the defendants, Susie Patton, an unmarried adult daughter, filed in the same cause, in effect, an individual action, to establish a homestead right, as a surviving constituent member of the family, in the estate of her deceased parents, and to prevent partition by the other heirs.

The judgment affirmed on certificate is silent as to the adjudication of the homestead claim of Susie Patton, as that issue was not involved in the original action for partition and accounting, and, on an original action filed in this court by the judgment plaintiffs, we held that the homestead claim of Susie Patton was not before the court below, or that it was adjudicated, and that Susie Patton had a right to adjudicate such claim. Simmons v. Patton (Tex. Civ. App.) 67 S.W.(2d) 894. The judgment of this court constitutes no effective plea in bar, on the theory of res adjudicata, to a subsequent action of Susie Patton, seeking to establish her homestead rights, or to the other claimants resisting her claim. The effect of the judgment is that Susie Patton still had the right to litigate her homestead claim, irrespective of the judgment theretofore rendered, affirmed on certificate, and mandate issued to the lower court.

The homestead issue has since been adjudicated, and the case reaches this court on appeal from a judgment of the lower court, denying to Susie Patton a homestead in the estate of her deceased parents, she being the unmarried adult daughter, and a constituent member of their family.

The agreed case, upon which the parties submitted the issue, is that the property sought to be partitioned is owned in common by appellants and appellees; was the homestead of M. P. Patton and his wife at the time of their respective deaths, through whom all parties inherit. After Patton's death, the homestead continued to be occupied by Mrs. Patton and Susie Patton, their daughter. After Mrs. Patton's death, Susie Patton has continued to occupy the homestead. Susie Patton is an unmarried daughter, about 47 years of age. There are no minor children of either M. P. Patton or his wife, and no creditors of the deceased asserting a right in the homestead.

There is no authority under our Constitution, statutes, or decisions of the Texas courts that prevents a partition of an estate among the lawful heirs, where there are no minors of the deceased, and gives to a surviving unmarried adult daughter, a constituent member of the family at the death of her parents, a homestead right as would enable her to prevent or defer partition in respect thereto.

Section 52 of article 16 of the Constitution provides: "On the death of the husband or wife, or both, the homestead shall descend and vest in like manner as other real property of the deceased, and shall be governed by the same laws of descent and distribution, but it shall not be partitioned among the heirs of the deceased during the lifetime of the surviving husband or wife, or so long as the survivor may elect to use or occupy the same as a homestead, or so long as the guardian of the minor children of the deceased may be permitted, under the order of the proper court having the jurisdiction, to use and...