Roberts v. Roberts

• Decision Date: 24 December 1925
• Docket Number: (No. 1761.)
• Citation: 278 S.W. 937
• Parties: ROBERTS et al. v. ROBERTS et al.
• Court: Texas Court of Appeals

278 S.W. 937

ROBERTS et al. v. ROBERTS et al.

(No. 1761.)

Court of Civil Appeals of Texas. El Paso.

December 24, 1925.

Appeal from District Court, Taylor County; W. R. Ely, Judge.

Suit by J. C. Roberts and others against M. P. Roberts and others. Decree in favor of plaintiffs, and defendants appeal. Reversed and remanded.

H. A. Tillett and Stinson, Coombes & Brooks, all of Abilene, for appellants.

Wagstaff, Harwell & Wagstaff, of Abilene, for appellees.

PELPHREY, C. J.

This is a suit for the partition of 320 acres of land in Taylor county, Tex., instituted by the nine children of appellant M. P. Roberts and his first wife, J. J. Roberts.

Appellees allege that the land sought to be partitioned was acquired during the marriage of M. P. Roberts and his first wife, J. J. Roberts, deceased; that upon her death an undivided one-half interest in said land vested in them as her heirs. They further allege that the land is not susceptible of partition on account of improvements on the same, and pray for a judgment declaring the land not susceptible of partition, and that it be sold, and, in the alternative, if the court should find the land to be susceptible of partition, for the appointment of commissioners and partition.

Appellant M. P. Roberts answered with a general denial, and specially pleaded that the property was acquired by him on the 17th day of November, 1900; that part of the purchase price was paid in cash; that he assumed some outstanding notes against the land, and executed purchase-money notes for the balance; that he, together with his first wife and nine children, moved onto the land soon after its purchase, and occupied the same as their homestead until the death of his first wife, which occurred about the 1st day of March, 1901; that as such head of a family he is entitled, under the Constitution and laws of Texas, to 200 acres of said land as a homestead, exempt to him as such; that he has at all times since the purchase thereof occupied the land as a homestead, and that as such homestead it is exempt from forced sale or partition; that the children continued to live with appellant on the land until they reached their majorities or married; that on or about the 25th day of December, 1901, he married the present Mrs. Roberts, and that three children were born to them; that he has never refused appellees the joint possession of the said land; that he has placed improvements on the land of the value of $2,500; that he paid off the indebtednesses on the land together with the interest thereon amounting to $8.330.75; that he has paid the taxes on the property, which, together with interest thereon, amount to $1,935.54; and that the property is susceptible of partition.

Appellant prays that his homestead rights be established and fixed in 200 acres of said land; that the remainder be partitioned; that a lien be established and fixed and foreclosed in his favor against that portion of land partitioned to appellees for one-half of the sums of money paid out by him on the purchase price and for taxes and improvements, with interest thereon from time of payment; that a receiver be appointed to sell the lands partitioned to appellees, and be directed to pay to appellant the sums prayed for; and that commissioners be appointed to make the partition.

Appellant Mrs. M. P. Roberts adopted the answer of appellant M. P. Roberts, and specially answered, alleging the use of the property by M. P. Roberts and herself as a homestead; that during the minority of the appellees she had cared for them as if she were their own mother; that none of them were ever denied the use and occupancy of the land in question; that the rents and profits from the land had never amounted to more than the costs incident to providing for appellees' and appellants' necessities of life and to keep the premises in repair; that any claim appellees might have for rents and profits is barred by limitations; that she and appellant M. P. Roberts had used the revenues derived from other lands owned by them in discharging the indebtedness on the 320 acres which is sought to be partitioned.

Appellees, in a supplemental petition, deny that appellant is entitled to recover any of the sums paid out by him on the purchase price or for taxes, alleging that he has received the rents and revenues from said land amounting to $12,000 or $14,000, and that the rent on the undivided one-half interest in said land amounted to at least $500 per annum, and that amount for 24 years would be $12,200, and, with interest thereon, would aggregate at least $16,000, and that the rents would greatly exceed any improvements placed on the land by appellant.

Appellees further allege that appellant purchased a certain 140-acre tract of land with the rents and revenues derived from the land sought to be partitioned, and that they are entitled to an undivided one-half interest therein.

Appellants filed a general denial of all the allegations in appellees' supplemental petition.

The case was tried before the court, and resulted in a judgment finding that the land was susceptible of partition; that appellees were the legal, and only legal, heirs of Mrs. J. J. Roberts, deceased; that the 320 acres was the community property of M. P. Roberts and Mrs. J. J. Roberts at the time of her death; that Mrs. J. J. Roberts died intestate; that, immediately after the death of Mrs. J. J. Roberts, M. P. Roberts took charge of the property and...