St. Louis, A. & T. Ry. Co. v. Prather

• Decision Date: 08 November 1889
• Citation: 12 S.W. 969
• Parties: ST. LOUIS, A. & T. RY. CO. <I>v.</I> PRATHER <I>et al.</I>
• Court: Texas Supreme Court

12 S.W. 969

ST. LOUIS, A. & T. RY. CO.v.

PRATHER et al.

Supreme Court of Texas.

November 8, 1889.

Appeal from district court, Franklin county; E. W. TERHUNE, Judge.

J. B. Stringer, for appellees.

GAINES, J.

This was an action of trespass to try title, brought by the appellees against the appellant. The plaintiffs alleged in their petition that they were the owners of an undivided half interest in the lots in controversy, and that the defendant had unlawfully entered upon the property, and still withheld the possession from them. The defendant pleaded not guilty, and the statute of limitation. The conclusions of fact, found by the court, show that the lots were conveyed to one N. C. Prather while a single man; that he subsequently married, and died without issue, leaving his wife surviving him. The lots were the homestead of Prather and his wife at the time of his death, and continued to be occupied by the wife, as her place of residence, until the 9th day of April, 1889, when she sold and conveyed them to the defendant. The plaintiffs are the brothers and sisters of the deceased husband, and the descendants of his brothers and sisters. The court below correctly held that the plaintiffs were owners of an undivided one-half interest in the property, but ruled that they could not recover possession in the action of trespass to try title, and decreed a partition adjusting what was considered to be the equities between the parties. The defendant gave notice of appeal, and filed an appeal-bond, but has not filed briefs in this court. Its assignments of error are therefore considered as waived. The appellees filed cross-assignments, which are presented in their brief. The first is, in effect, that the court erred in holding that they were not entitled to recover on their action of trespass to try title. We think this assignment well taken. It is elementary law that one tenant in common may maintain an action of ejectment against his co-tenant, when the latter has ousted him of possession of the property owned in common. Freem. Co-Tenancy, § 291. The author cited says: "While an ouster is essential to the maintenance of an action of ejectment by one tenant in common against another, yet the circumstances of the case, or the condition of the pleadings, may be such as to concede the fact of ouster, and thus to dispense with proof of its existence. If the defendant, by his answer, claim the whole premises in his own right, as owner thereof in severalty, he...