Tieman v. Baker

Decision Date13 March 1885
Docket NumberCase No. 4843.
Citation63 Tex. 641
PartiesLOUIS TIEMAN v. G. W. L. BAKER.
CourtTexas Supreme Court

OPINION TEXT STARTS HERE

APPEAL from Guadalupe. Tried below before the Hon. Everett Lewis.

W. E. Goodrich, for appellant.

Jas. H. Burts, for appellee, on application for rehearing, cited: Freeman on Co-tenancy and Partition, secs. 338, 440, 441, 482; Freeman on Remainders, vol. 1, p. 338; Bouvier's Institutes, vol. 5, pp. 82, 93; Packard v. Packard, 16 Pick., 194; Geigler v. Green, 6 Watts, 106; Noren v. Wilson, 5 Humph., 310;Ellis v. Rhone, 17 Tex., 131;Payne v. Benham, 16 Tex., 364;Robertson v. Robertson, 2 Swan, 201;Rich v. Lord, 18 Pick., 322; Mussy v. Sanborn, 18 Mass., 155; Mitchell v. Starback, 10 Mass., 5;Ackley v. Dagert, 33 Barb., 176, and Ricker v. Dart, 4 Edw. (N. Y.), 668.

STAYTON, ASSOCIATE JUSTICE.

This action was brought by appellee to obtain partition of a lot in the town of Seguin.

The petition alleges that the appellee “is the owner of nearly the entire interest in a certain lot of ground in the town of Seguin,” giving a description of the lot by its number and block, and that Louis Tieman … claims to be a part owner of said property; and petitioner is of opinion that said Tieman has some interest in the same, but it is indefinite and very small. That, in the year 18--, by the judgment and decree of the supreme court of the state of Texas, said property, and the whole thereof, was set apart and decreed to Mrs. Matilda Tieman during her natural life. That the title owned by petitioner is the title so set apart to said Matilda Tieman.”

It is further alleged that “said property was originally, and prior to said decree, community property between said Louis and Matilda,” and that the same is incapable of actual partition; and it is prayed that the property be sold and the proceeds divided.

Demurrers, general and special, were urged by the defendant, and were overruled.

The special demurrer was as follows: “That the petition admits that defendant owns an interest in the property after the death of the one for whose life the same is held, and that there is no law to partition a reversionary interest; and of this defendant prays judgment.”

The first declaration of the interest or estate claimed by the plaintiff is very indefinite; “nearly the entire interest” is rather the statement of a conclusion of law than the averment of a fact, and as qualified by the succeeding statement, “that the title owned by petitioner is the title so set apart to said Matilda Tieman,” it only being averred that a life estate in the entire lot was set apart to her by the decree of the supreme court, the construction would be that the plaintiff only held a life estate in the entire lot. There is an averment that prior to the date of the decree the lot was of the community between Louis and Matilda Tieman, but there is no averment that the plaintiff had acquired the community interest which either of these persons owned, otherwise than as that may be affected by the life estate vested in Matilda Tieman, of which the plaintiff alleged he was the owner.

Such being considered the effect of the averments of the petition they clearly showed that there could be no possible necessity for a partition of the lot; for such a title and estate would give to the plaintiff the right to possess the entire lot. If the life estate owned by the plaintiff had extended to only a part of the lot, under the statutes of this state, we have no doubt that, as against the owner of the life or other estate in the residue of the lot, the plaintiff would be entitled to partition; for the statute declares that “any joint owner or claimant of any real estate, or of any interest therein, may compel a partition thereof,” etc. R. S., 3465.

And it may be that in such case, with the owners of the entire estate, including reversioners or remaindermen, before the court, the property might be sold, if necessary, to secure to the holder of only a life estate his exclusive and specific interest. This, however, is not entirely clear, for the statute declares: “When a partition is made between a joint owner who holds an estate for a term of years or for life, with others who hold equal or greater estates, such partition shall not be prejudicial to those entitled to the reversion or remainder of such estates.” R. S., 3481; Van Arsdale v. Drake, 2 Barb., 600.

The very purpose of partition is to enable one holding or entitled to hold with others an undivided possession, to sever that possession and right, and thenceforth to hold an exclusive possession of a specific part of the property, which before partition all the co-owners had the equal right to possess.

When the right to possess the entire property exists in one holding a life estate, if such person has no other estate, no right to partition exists; for it could confer no benefit, as no higher estate can be acquired by partition.

From this it follows that the demurrers to the...

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28 cases
  • Voth v. Felderhoff, 2-87-047-CV
    • United States
    • Texas Court of Appeals
    • March 16, 1989
    ...or of the actual execution and carrying out of the partition." Id. at 247. Citing White v. Mitchell, 60 Tex. 164 (1883) and Tieman v. Baker, 63 Tex. 641 (1885), the Pfeffer court There is no suggestion in either of these cases that the court was without power to enter the later orders compl......
  • Henderson v. Chesley
    • United States
    • Texas Court of Appeals
    • April 8, 1925
    ...acts, are not restrictive, and resort may still be had to a partition upon equitable principles without the aid of these statutes. Tieman v. Baker, 63 Tex. 641; Keener v. Moss, 66 Tex. 188, 18 S. W. It will be noted from this history that statutory partition, limited at first to estates of ......
  • Gardner v. McAuley
    • United States
    • Arkansas Supreme Court
    • December 2, 1912
    ...1. This was simply a suit for partition of lands, and in no sense an adversary suit. 95 Ind. 184; 43 Ark. 296; 33 Id. 429; 75 Md. 486; 63 Tex. 641; 76 Ark. 150; 47 175; 53 F. 872; 64 Ark. 353; 21 D. C. 74; 141 Pa.St. 93. 2. In such cases it is proper to tax an attorney's fee as part of the ......
  • Pfeffer v. Meissner
    • United States
    • Texas Court of Appeals
    • November 23, 1955
    ...1908, 110 S.W. 79, construing Article 3621 of the Revised Statutes of 1895. Earlier and similar statutes are referred to in Tieman v. Baker, 1885, 63 Tex. 641, where it is said that upon the report of the commissioners coming in the issue of susceptibility to partition in kind vel non was t......
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