Sibert v. Devlin

• Decision Date: 09 April 1974
• Docket Number: No. 8209,8209
• Citation: 508 S.W.2d 658
• Parties: Ola McDowell SIBERT et al., Appellants, v. Lanora McDowell DEVLIN et al., Appellees.
• Court: Texas Court of Appeals

Page 658

508 S.W.2d 658

Ola McDowell SIBERT et al., Appellants, v. Lanora McDowell DEVLIN et al., Appellees.

No. 8209.

Court of Civil Appeals of Texas,

Texarkana.

April 9, 1974.

David J. Potter, Potter & Potter, Texarkana, Ark., for appellants.

Roland Matthews, Troup, for appellees.

CORNELIUS, Justice.

This is a suit in the nature of a bill of review seeking to set aside a partition judgment previously rendered by the District Court of Cass County, Texas. The trial court denied relief and the appellants have perfected this appeal. We have concluded that appellants were entitled to the relief sought and that the trial court's judgment must therefore be reversed.

James E. McDowell and Rosie Marshall McDowell were husband and wife. They acquired title to approximately 148 acres of land as their community property. They had five children, viz, James Ruel McDowell, Aubie McDowell Kitchings, Annie McDowell Wells, Lanora McDowell Devlin and Ola McDowell Sibert. James E. McDowell died intestate in 1918 and the five children acquired his one-half community interest in the 148 acres by the laws of descent and distribution. The property was not divided. Mrs. Rosie McDowell died in 1963. She left a holographic will which provided that each of the five children would receive 30 acres, with Annie's share to have the 'house and outbuildings' which were located on it, and Ola's 30 acres designated as 'the homestead'. J. Ruel McDowell and Aubie McDowell Kitchings were to have 'One dollar' each in addition to their respective shares of thirty (30) acres. The 'home place' or residence where the family lived had been substantially improved with individual funds of Ola Sibert and the other house had been improved by Annie Wells with her individual funds.

Ola Sibert and Annie Wells made application to the County Court of Cass County to probate their mother's will. It was admitted to probate and they were appointed independent executrices in cause No. 5147 on September 30, 1963. On November 4, 1963, Lanora McDowell Devlin and Aubie McDowell Kitchings filed a contest to the will. The contest was docketed in the Case County Court, as cause No. 5165 . In their petition, Lanora Devlin and Aubie Kitchings asserted that the five McDowell children owned an undivided one-half of the land as heirs of James E. McDowell by descent and distribution, and that the estate of Rosie McDowell owned the remaining undivided one-half. It then alleged that the 'estates of James Elias McDowell and Rosie Marshall McDowell, both deceased, should be partitioned' among the five children, stating that such persons were all the heirs of James Elias McDowell and Rosie Marshall McDowell and that they were all parties to the suit. On November 18, 1963, Ola Sibert, J. Ruel McDowell and Annie Wells filed their answer to said petition and stated therein that with regard to the petition's request for a partition,

'. . . they agree that the said land should be divided, and are willing to do so, according to the Will of Mrs. Rosie Marshall McDowell, and the equities hereinafter mentioned. . . . These defendants would show the Court that said land can be divided, because the defendant Ruel (James Ruel) McDowell is willing to take his one-fifth (1/5th) interest anywhere and preferable off the North end of said place. That the defendants Annie McDowell Wells has made permanent and lasting improvements on what would be the middle one-fifth if the same were divided by running the dividing line through the place East to West, and that the defendant Ola McDowell Sibert has paid a large part of the cost of constructing the house that would fall on the next one-fifth South thereof, and in addition thereto furnished large amounts of money for her mother during her illness, as well as a large part of her support during her health, and is entitled to one-half interest in the 'Home Place' by the Will of Mrs. Rosie Marshall McDowell, and is equitably entitled to the other one-half interest therein by reason of the expenses that she had paid thereon. * * *'

On December 3, 1963, the County Court of Cass County rendered judgment in cause No. 5165, denying the will contest, confirming the validity and the probate of Rosie McDowell's will, and decreeing as follows:

'The Court further finds that the Defendants Annie McDowell Wells, and husband, Oswell Wells, have practically built the home which they occupy on said land, having started with a small ancient house that was of very little value, and are entitled to have their share of the land set apart so as to include the house they have improved.

'The Court further finds that Ola McDowell Sibert is living in a house that was built on the site of the former home of the said James Elias McDowell and Rosie Marshall McDowell, which was razed in the year 1950 and the present house built immediately thereafter, construction having been started in June 1950 and completed in August, 1950, and that it was built primarily from the sale of a crop of timber grown on the land following the death of James Elias McDowell, and additional money furnished primarily by Defendant Ola McDowell Sibert, and that the said Ola McDowell Sibert, according to her mother's will, is entitled to have her part of the land set apart so as to include the tract where the said house built in 1950 is now situated, the will of the said Rosie Marshall McDowell providing as it does that she should have the homestead, which the Court finds to mean that part of the land on which the house now occupied by the said Ola McDowell is situated, being the house built in the year 1950.

'IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Defendants Annie McDowell Wells and her husband, Oswell Wells, have for their share that part of the land set apart to them so as to include the house which they have improved.

'IT IS FURTHER ORDERED, ADJUDGED and DECREED that the Defendant Ola McDowell Sibert have her part of the land set apart so as to include the house she now occupies which was built from the ground up during the year 1950.

'IT IS FURTHER ORDERED, ADJUDGED and DECREED that Commissioners in partition be appointed to make a fair and equitable division of the land, dividing it into five (5) equal parts, irrespective of the two (2) houses to which reference has heretofore been made. * * *'

Lanora Devlin and Aubie Kitchings gave notice of appeal from the judgment ordering partition but did not perfect the appeal. On January 29, 1964, the commissioners appointed by the December 3, 1963 judgment made their report wherein they divided the land into five blocks of approximately 31 acres, each having a value of $2,000 .00 'exclusive of improvements'. In obedience to the judgment of December 3, 1963, the commissioners awarded parcels to Annie Wells and Ola Sibert on which were located the improvements devised by the will to them respectively. Objections to the report were made by Lanora Devlin and Aubie Kitchings. On February 5, 1964, the objections were overruled and the report of the commissioners was confirmed. Lanora Devlin and Aubie Kitchings perfected an appeal from this order to the District Court of Cass County. The appeal was docketed as No. 18,062 in the district court. Apparently while the appeal (18,062) was still pending, Lanora Devlin and Aubie Kitchings filed a new suit in the District Court of Cass County seeking to partition the 148-acre tract. The petition stated that the county court had entered an order of partition which had been appealed to the district court, but alleged that the county court had no jurisdiction over the undivided one-half inherited by said parties from James E. McDowell and that therefore its judgment was void and the district court should partition all of the land. Ola Sibert, J. Ruel McDowell ¹ and Annie Wells answered in cause No. 18,289, asserting that any partition 'should be made in such a way as to protect said parties as to the improvements made by them.' On September 8, 1965, judgment was entered in cause No. 18,289, which was the district court partition suit, ordering a new partition and appointing appraisers to effect it. The Commissioners reported on July 25, 1968, having divided the land into Unequal portions having the same value when considered with the value of the improvements; that is, instead of awarding 30 acres and the improvements located thereon to Ola Sibert, she received 5 acres and the improvements; Annie Wells received 26 acres and the improvements, and the other three children received 38.2818 acres each. The report was confirmed by the district court on August 26, 1968. Allegedly because of the absence and hospitalization of their attorney and a resulting mistake or accident, Ola Sibert, Annie Wells and J. Ruel McDowell failed to perfect an appeal from the judgment in cause No. 18,289. Consequently, they then filed this suit, in the nature of a bill of review, attacking the district court judgment in 18,289 on the ground, among others, that the district court had no jurisdiction to render it. The trial court denied the bill of review.

As to the appeal from the order of the probate court, docketed in the district court as No. 18,062, no disposition is shown except the court's docket sheet which contains an entry dated April 8, 1965, five months after cause No. 18,289 was filed, stating that the county court judgment of partition was vacated, 'per judgment on file'. There is no judgment on file, unless it be considered that cause No. 18,062 was merged into cause No. 18,289.

The judgment of the district court in cause No. 18,289 was clearly erroneous. It was contrary to Mrs. McDowell's will, in that the devisees were awarded shares which were different from those specified in the will. Nevertheless, if that judgment was merely erroneous, it cannot now be set aside unless the aggrieved parties bring themselves within the well recognized requirements for equitable bills of review. Garza v. King, 233 S.W.2d...