Appeal from district court, Falls county; S. R. Scott, Judge.
Suit by Eliza M. Shelburn and others against Madora L. McCrocklin and others for partition. There was a judgment for defendant McCrocklin, and Eliza M. Shelburn and others appeal. Affirmed.
"On May 12, 1894, appellants, E. M. Shelburn, joined by her husband, A. B. Shelburn, and L. S. Hill and James Hill, filed this suit against Mary E. Scott, Madora McCrocklin, M. M. Dallas and her husband, J. W. Dallas, Bledsoe Hill (who was alleged to be a minor without a guardian, and for whom the appointment of a guardian ad litem was asked), and Victoria Hairston and her husband, M. B. Hairston, for the partition of a survey of 640 acres of land in Falls county, Texas, patented to the heirs of J. P. Cole. Bledsoe Hill never answered, nor was any guardian ad litem ever appointed for him. Defendant Mrs. Mary E. Scott and defendant Madora McCrocklin first answered together, but finally Mrs. Scott withdrew her answer and disclaimed. Mrs. McCrocklin by her second amended original answer, filed July 29, 1895, pleaded a general demurrer and general denial and plea of not guilty; pleaded the ten years' statute of limitation, improvements in good faith, a parol partition of the community estate of J. P. Cole and his wife, M. E. Cole, of which the land in controversy was a part, made in 1866, between Mrs. M. E. Cole, survivor of the community, and plaintiffs and defendants herein and their ancestors, by and in which the lands in controversy were allotted and set apart to her, and that the parties to that partition, made nearly thirty years ago, had gone into and remained in possession of the property allotted to them therein. She pleaded a retraxit growing out of a suit instituted in the district court of Washington county, Texas, in August, 1884, by the plaintiff Eliza M. Shelburn and her husband, the defendant Victoria Hairston and her husband, the defendant Mary M. Dallas and her husband, and Lillie Hill, the surviving widow of J. T. Hill, deceased, the mother of plaintiffs L. S. Hill and James Hill, against defendant McCrocklin and her husband, then living, but now dead, and the defendant M. E. Scott and W. B. Hill, father of Bledsoe Hill, claiming an interest in the tract of land now in controversy, which suit was dismissed at costs of defendants; advancements from the community estate to the plaintiff Shelburn and to the defendant Hairston and to Maria Hill, the mother of the defendants M. M. Dallas, and grandmother of the plaintiffs L. S. Hill and James Hill, and the defendant M. E. Scott and herself, of real and personal property equal in value to their share of said community estate, and praying that it be brought into hotchpotch in case said plaintiffs and defendants were entitled to recover; and a deed from defendants Mary E
Scott and Bledsoe Hill to her, made since the institution of the suit. The defendant Victoria Hairston and her husband answered, admitting the allegations of plaintiffs' petition, and joined plaintiff in asking a partition of the lands described therein; and by a supplemental answer, in reply to the original answer of the defendants Scott and McCrocklin, who had answered together, they demurred generally to said answer, pleaded general denial, and, in answer to their plea of limitation, pleaded cotenancy and joint ownership of the lands in controversy with their co-defendants Scott and McCrocklin, who were pleading limitations; that their said co-defendants had never been in possession of, and had never claimed the same adversely to them, so as to put in force the operation of any statute of limitations; and further pleaded coverture against the statute of limitation. The defendants Dallas and wife joined in and adopted the original and supplemental answer of the defendant Hairston, and adopted all the matters and things contained in plaintiffs' first supplemental petition, and prayed for relief as therein prayed for. The minor defendant, Bledsoe Hill, filed no answer. Plaintiffs' first supplemental petition consisted of a general demurrer, a general denial of all allegations in the joint answer of defendants Scott and McCrocklin; and, in avoidance of limitation pleaded by said defendants, they pleaded that plaintiffs and defendants were co-owners of the land in controversy, and joint tenants in reference thereto, and that said defendants had never repudiated the joint tenancy, or held adversely to them, so as to set in force the operation of the statute of limitations; and the plaintiff Eliza M. Shelburn, in whose right the land was claimed, pleaded her coverture. On the trial all issues raised by the pleadings were withdrawn, except the issue as to whether or not the land in controversy was included in the partition of 1866 set up by defendant McCrocklin, which issue, upon trial, was submitted to a jury, as between the plaintiffs and all the defendants...
