Rains v. Wheeler

• Decision Date: 07 March 1890
• Court: Texas Supreme Court
• Parties: RAINS <I>v.</I> WHEELER.

13 S.W. 324

RAINS

v. WHEELER.

Supreme Court of Texas.

March 7, 1890.

Appeal from district court, Galveston county.

Howard Finley and Wharton Branch, for appellant. McLemore & Campbell and H. W. Rhodes, for appellee.

GAINES, J.

This suit was brought by R. T. Wheeler, as executor of the will of George C. Rains, against appellant, to determine the title of the estate represented by him to certain parcels of real estate in the city of Galveston. The issuable averments in the petition are, in brief, that the estate of plaintiff's testator is the owner in fee-simple of the property, and that the defendant, for the purpose of injuring the estate, and to prevent a sale of the lots, was setting up a pretended claim to them, and that such claim was a cloud upon the title. The prayer was that the cloud be removed, and that the plaintiff may have general relief, etc. A general demurrer was interposed to the petition, and it was overruled.

The ruling on the demurrer is assigned as error. In Shepard v. Cummings, 44 Tex. 502, it is held that, when the leading object of a suit is to try the title to land, the additional allegation that the adverse claim is a cloud upon plaintiff's title does not change the real character of the action. The petition contains, in substance, the allegations of the statutory action of trespass to try title, with the exception that it does not expressly allege that the plaintiff was entitled to the possession, and that the defendant had unlawfully entered upon and dispossessed him of the premises, etc. It seems to us that the averments that the estate was the owner in fee-simple of the land, and that the defendant was setting up a pretended claim to the property, are sufficient to justify, upon general demurrer, the reasonable intendment that the plaintiff was entitled to the possession of the premises.

The other question is more difficult. The action of trespass to try title is the only formal civil action known to our law, and the statute states substantially what the form shall be. Rev. St. art. 4786. But, while one of the requisite allegations of the petition is that the defendant has entered upon and dispossessed the plaintiff, it was evidently intended that it should not be necessary to prove that allegation. Article 4790 of the Revised Statutes provides that "the defendant in the action shall be the person in possession if the premises are occupied, or some person claiming title thereto if they are unoccupied." Article 4794 also provides that an answer to the merits shall be deemed an admission by the defendant that he was in possession of the premises, or claimed title thereto, at the time the suit was instituted. We think it evident, therefore, that it is not necessary to the maintenance of this action that the defendant should have possession of the disputed premises. It is sufficient that he claims title thereto. Why, then, under our liberal rules of pleading, should not the allegation that defendant is claiming the premises, when such is the fact, be as effectual to to maintain the action as the fiction that the defendant has taken possession, and withholds the same from plaintiff?

If it were necessary definitely to decide the question, we should hesitate before holding the petition bad on general demurrer. We do not think it necessary; for, if the general demurrer to the petition had been well taken, we are of opinion that no prejudice has accrued to the defendant from overruling it. In connection with her other pleadings, she filed a plea in reconvention, in which she claimed of the plaintiff an undivided one-half interest in the property described in the petition, as well as other property alleged to be in his possession as executor of the will of George C. Rains, deceased, and prayed that she have judgment for its recovery. In reply to this, plaintiff filed a supplemental petition, in which he fully and specially pleaded his testator's title. Her plea in reconvention, and the plaintiff's reply thereto, were sufficient to present the issues, and, so far as mere pleadings are concerned, to warrant a judgment for either party. If the original petition had been stricken out, no reason is seen why the case should not have proceeded to trial, and judgment upon the plea in reconvention, and plaintiff's supplemental petition in reply thereto. The latter, as well as the original petition, contains a prayer for specific, and, in the alternative, for general, relief. What has already been said is a sufficient answer to appellant's second assignment of error. The allegations in the supplemental petition might properly, in part at least, have been pleaded as an amendment to the original petition; but they were also proper in reply to the cross-action of defendant.

Appellant's third assignment of error presents a question which lies at the foundation of plaintiff's claim, and we here copy it: "The court erred in overruling the exceptions of defendant to plaintiff's supplemental petition for the ground stated in exception No. 11 in defendant's first supplemental answer, and because the supplemental petition showed on its face that the property was common property of plaintiff's testator and defendant, his surviving wife, and she was and is entitled to one undivided one-half thereof in her own right." In her plea in reconvention the defendant alleged that she and plaintiff's testator had been lawfully married, and that she was his wife at the time of his death; that the property described in plaintiff's petition, as well as other property claimed by her, had been acquired during the existence of the marriage between her and her husband; and that as such it was community property, and she was entitled to one-half thereof. In the supplemental petition the existence of the relation of husband and wife between George C. Rains and defendant was admitted, but it was averred that long prior to his death he and the defendant had lived separate and apart from each other; that, during the time of their separation, she had brought a suit against him for divorce, and for a division of property, which was decided against her, and that after the termination of that suit, being still separated, in consideration of that fact, and of their agreement to continue to live apart, they agreed together upon a division of their property. It was further alleged that, in pursuance of such agreement, he conveyed to her by deed certain property in the pleading described, and alleged to be of his separate estate, and that, on the other hand, they jointly conveyed to R. T. Wheeler, (now the plaintiff,) as trustee, the property in controversy in this suit, for the sole use and benefit of the husband. It was also alleged that plaintiff subsequently conveyed the property to George C. Rains, now his testator. It was alleged that the division of the property between the husband and wife was equitable and fair. The question presented has never been decided, so far as we are advised, by this court. In Ximines v. Smith, 39 Tex. 50, it is intimated that equity will, under certain circumstances, enforce post-nuptial agreements between husband and wife, where...