Phillipson v. Flynn

• Decision Date: 01 March 1892
• Citation: 19 S.W. 136
• Parties: PHILLIPSON <I>et al.</I> v. FLYNN <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 136

PHILLIPSON et al. v. FLYNN et al.

Supreme Court of Texas.

March 1, 1892.

Commissioners' decision. Section B. Appeal from district court, Galveston county.

Suit by Margaret Flynn and Bernard Flynn against Catherine Phillipson and her husband, Robert Phillipson, for partition. Judgment for plaintiffs, and defendants appeal. Affirmed.

Hume & Kleberg, for appellants. P. C. H. Brotherson and S. S. Hanscom, for appellees.

FISHER, J.

March 28, 1891, appellees, Margaret Flynn and Bernard Flynn, brought this suit against Catherine Phillipson and her husband, Robert Phillipson, for partition of the north-west block of outlot No. 60, in the city of Galveston, alleging that they owned each one-quarter of said property, and that the defendant Catherine Phillipson owned one-half thereof jointly with them. Defendants answered by general demurrer, plea of not guilty, pleas of three, five, and ten years' limitation, and by special plea alleging that, if plaintiffs were tenants in common with Catherine Phillipson, their right to assert such tenancy was barred by the law of limitations, and specifically setting forth the facts upon which they relied to show such bar. Plaintiffs replied by supplemental petition, alleging that, if defendants ever made claim to the land in controversy in such a manner as to put them upon notice thereof, and to inaugurate the statute of limitations, that at such time they were minors, and that they, neither while minors nor after arriving at majority, were notified of the adverse claim to or possession of said land by defendants. A jury being waived, the case was tried before the court, who rendered judgment, July 16, 1891, that appellant Catherine Phillipson have and recover one-half the lands, and that appellees each recover one-fourth of the land, and that partition be had according to their respective interests. The judgment further finds that appellees' rights are not barred by limitation. The court overruled the general demurrers. Appellants insist that this was error, because the petition does not allege a possession or trespass by appellants, and it does not set out the title under which the parties claim. We think, when tested by a general demurrer, the petition is sufficient. Leigh v. De Ganahl, (Tex. Sup.) 16 S. W. Rep. 1037; Glasscock v. Hughes, 55 Tex. 469.

The important questions in the case are whether the acts of Mrs. Phillipson in claiming the land and her possession thereof amounted to an ouster of the appellees, her co-tenants, and if her possession of the lands were sufficient to bar them under the ten-years statute of limitations. Briefly stated, these are the facts: Edmond Quick, the father of Catherine Phillipson and of Mary Flynn, mother of appellees, died November 17, 1873. The lot in controversy was his separate property. Mary Flynn, mother of appellees, died June 16, 1864. Their father, John Flynn, died September 30, 1864. Appellee Bernard Flynn was born February 6, 1858. Appellee Margaret Flynn was born December 22, 1859. Both were born at Brownsville, Tex., and have resided there since. James G. Brown, after the death of the parents of appellees, was appointed their guardian. He resides in Brownsville, and did at the time of his appointment, February 2, 1874. Appellant Catherine Phillipson, in the district court of Galveston county, filed application for temporary letters of administration on the estate of her father. The application stated that her father left no will; that he left real estate valued at about $4,000, but no personal property; that appellant was his sole heir. She was appointed temporary administrator. She took the oath required, and filed bond. The proceedings and orders of court were entered of record. She filed no inventory of the estate. It appears that Quick at the time of his death owned no real estate in Galveston county except the property in controversy. Neither appellees nor any one for them in their name ever rendered the property in controversy for taxation, or paid taxes thereon. Mrs. Phillipson, a witness in her own behalf, testified that "immediately after my father's death I took full possession of the land in controversy as my own. He told me that he gave it to me, and to take possession of it as my own, as his sole heir; that he gave it to me because I had taken care of him in his declining years. He gave lands in the country to Barney and Maggie Flynn, the plaintiffs. I kept the place together, and repaired it, paid all taxes on it, and claimed it as my own, believing that I owned it. No one disturbed me until I got a citation in this case. I never heard of plaintiffs owning any part of it. I collected the rents, paid taxes, and did not divide the rents with any one. I have held the property since my father's death. I paid taxes on it in my name. I never concealed my claim to the land. Since my father's death I have rented out the propery, and kept the rents. I never lived on the property. The property rented for $8 per month. It was not rented all the time; a portion of the time it was idle. I made but little out of the rents over and above the taxes. The property has been vacant about two years, including about seven months next before the present time. The condition of the premises is rather dilapidated. I have paid, I believe, between $700 and $800 taxes on the property. I kept the fence and house in repairs at my own expense, and...