Payne v. Benham

• Decision Date: 01 January 1856
• Citation: 16 Tex. 364
• Parties: JOHN H. PAYNE v. SHADRAC A. BENHAM.
• Court: Texas Supreme Court

16 Tex. 364

JOHN H. PAYNE

v.SHADRAC A. BENHAM.

Supreme Court of Texas.

1856.

A plea of former suit pending for the same cause of action, if sustained, will not abate the latter suit, but the plaintiff will be put to his election which suit he will prosecute, and be required to abandon the other and pay the costs of it.

We have no distinction between law and equity, and both are regarded as blended together; hence, upon questions of costs, as well as matters of form, we are not confined to the strictness of courts of common law jurisdiction.

It is objected that this suit (for partition) was not brought in conformity with the statute providing for the partition of lands. (Hart. Dig. p. 793.) We do not believe that it is necessary to discuss the several provisions of the statute, because it is not restrictive, and does not forbid a resort to any other mode known to judicial proceedings, within the general jurisdiction of our district courts.

In an action by one tenant in common against another, where the tenancy in common is not admitted, as alleged, that issue should be submitted to a jury, and if found in the affirmative, commissioners should be appointed to view the land. to hear evidence pertinent to the question of division, to assign to each party his portion of the land, with the amount of difference in value (or, perhaps, in cases unlike the present, compensate a difference in quality or improvements, by a difference in quantity--REPS.), and to report, upon oath, their action in the matter referred to them, with the evidence on which they acted.

The decree of partition will then be pronounced, upon the basis of the report of the commissioners, without a jury.

Where the interrogatory was: Did the plaintiff make any inquiry of you, in relation to the line or boundary between him and defendant about the time said plaintiff was preparing to build on said land, or at any other time? to which the witness replied, he did; he asked me where the line was, and said that when he agreed to take the upper half of the said tract, he thought that it would take the string of the fence on the upper part of the farm, and those pens and lots, and on the plaintiff's objection the answer was ruled out, on the ground that the question was leading, and assumed that there was a line or boundary between the parties, it was held that the ruling was erroneous (but the judgment was not reversed).

The mere rejection of competent testimony is not sufficient cause for the reversal of the judgment, unless there be reasonable ground to suppose that the verdict might have been different if the testimony had been received.

Error from Goliad. Tried before the Hon. James Webb.

The facts are stated in the opinion.

F. Faunt Le Roy, for plaintiff in error.

Pryor Lea, for defendant in error.

LIPSCOMB, J.

Benham and Hall, each of them, purchased of Hord two hundred acres of land, to be selected by them from any of the lands of Hord; and they subsequently agreed to locate their lands adjoining, making one undivided tract of four hundred acres. This selection was made of lands that had been leased by Hord to Payne, on which the latter had made some improvements. After the lease had expired, Payne purchased from Hall his undivided share of the four hundred acres, and continued in possession; and Benham went into the possession of the upper half of the tract. It had been agreed that a division line should be run, which was run; but it is contended that Payne was to make up the deficiency of the value of the upper half of the land. About this line there was much conflict and uncertainty in the proof. It was in evidence that the upper half was not equal in value, in an unimproved state, to the lower one, occupied by Payne, in the like state, and that the improvements made by Payne, under his lease from Hord, were valuable, and thereby made the difference in the value of the two portions of the four hundred acres still greater. This suit was brought by Benham against Payne for a portion of the land, and for damages for the use of the best half of the four hundred acres of land, and for general relief.

The defendant pleaded in abatement, that at the time this suit was brought there was another suit pending, brought by the plaintiff against the defendant, for the same cause of action.

It appears that this first suit had been dismissed by the plaintiff before the plea in abatement was filed. The plea in abatement was overruled, and also the defendant's general exception to the petition. The jury found that the plaintiff and the defendant were tenants in common. Commissioners were appointed to divide the land, and hear testimony, and report the same as to the value of the improvements upon the land made during the tenancy of Payne under Hord, and the difference in the two divisions, independently of the improvements. These commissioners were sworn, and went upon the land, and heard testimony offered by the plaintiff, the defendant having failed to appear on the day appointed for hearing the evidence, although he was present when the commissioners were upon the land, and had notice of the time when the evidence would be heard. The commissioners returned into court their report, embracing the evidence taken by them. Their report assigned to Payne the half upon which he resided, the difference in the value of the land, without improvements, and the value of the improvements made before the tenancy had expired, and to Benham the other half of the land. The court decreed to each the land so assigned to them, and decreed that Payne should pay to Benham the difference in the value of the two divisions, without the improvements, and also that Payne should pay to Benham one-half the value of the improvements,...