Redden v. Hickey, 3614

• Decision Date: 10 September 1959
• Docket Number: No. 3614,3614
• Citation: 327 S.W.2d 778
• Parties: H. T. REDDEN, Appellant, v. Mrs. Gert HICKEY et al., Appellees.
• Court: Texas Court of Appeals

Page 778

327 S.W.2d 778

H. T. REDDEN, Appellant, v. Mrs. Gert HICKEY et al., Appellees.

No. 3614.

Court of Civil Appeals of Texas, Waco.

Sept. 10, 1959.

Rehearing Denied Oct. 6, 1959.

J. S. Simkins, Corsicana, for appellant.

Roe, Ralston & McWilliams, Dawson & Dawson, Corsicana, for appellees.

WILSON, Justice.

Appellant filed objections under Rule 771, Texas Rules of Civil Procedure, to the report of commissioners in partition proceedings, on the grounds the partition was unequal and unjust. He appeals from an adverse judgment sustaining the report based on a jury verdict.

Appellant says there was no basis in pleading or evidence authorizing submission of special issues relating to estoppel. Appellees' pleading, to which no exception was presented, alleged that all parties made an agreement that commissioners appointed by the court should divide the land involved into four equal shares to be drawn by lot; that pursuant to the agreement, the division was made, the parties having agreed the values of the four shares were equal, and appellant having drawn the share of which he now complains. Appellees alleged that at the time of the drawing appellant insisted the partition was fair; that he was completely familiar with the land to be partitioned; that all parties agreed they would be bound by the shares drawn; that all parties relied on the agreement to their injury and appellant was thereby estopped to complain of the report based on the drawing.

The jury findings on the issues under attack were to the effect that appellant led the other parties to belive he would abide by the drawing; that they did rely on his acts and conduct and would not otherwise have participated in the drawing; and that delay and financial loss to appellees resulted from appellant's failure to abide by the apportionment resulting.

The evidence shows appellant had been completely familiar with 'every foot' of the land in question for many years. He testified he was thoroughly familiar with each of the four portions of the commissioners' division and the share he drew, prior to the partition; that he knew the relative values of the four shares, before and at the time of the drawing of lots; that he had inspected the division map, had discussed it with the commissioners, made no protest, requested no more time for investigation and the parties agreed that the share of each would be determined by drawing a capsule containing a share number from a hat. The evidence shows that appellant's attorney called appellees' counsel, advising that the drawing was ready; that appellees' counsel came to the courtroom for this purpose, and began making inquiries of the commissioners as to the four shares, whereupon appellant's attorney urged that the drawing proceed and that the division was 'perfectly fair.' Appellant's attorney then outlined the final report of commissioners.

As we understand appellant's complaint as to the issues, it is that there is no evidence that appellees changed their position with reference to the property in question, and therefore an essential element of estoppel is lacking.

Obviously, when the agreement to abide the results of the drawing was made and the lots were drawn, the position of all parties was altered. However, it is not necessary that elements of equitable estoppel exist. Appellant is simply bound by his agreement and is not permitted to take an inconsistent position. Masterson v. Bouldin, Tex.Civ.App., 151 S.W.2d 301, 306, writ ref.;...