Wade v. Wade

• Decision Date: 03 February 1943
• Docket Number: No. 7986.,7986.
• Citation: 167 S.W.2d 1008
• Parties: WADE et al. v. WADE.
• Court: Texas Supreme Court

Page 1008

167 S.W.2d 1008

WADE et al. v. WADE.

No. 7986.

Supreme Court of Texas.

February 3, 1943.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by Mrs. Hettie Wade and Beatrice Flannery, joined pro forma by her husband, H. E. Flannery, against Ernest W. Wade and others, to reform a partition deed. From a judgment in favor of the plaintiffs, the named defendant appealed to the Court of Civil Appeals. To review a judgment of the Court of Civil Appeals, 160 S.W.2d 127, reversing the judgment and remanding the cause for another trial, the plaintiffs bring error.

Judgment of the Court of Civil Appeals reversed, and judgment of the trial court affirmed.

Morrow & Calvert, of Hillsboro, for plaintiffs in error.

Allred & Allred, of Hillsboro, for defendant in error.

ALEXANDER, Chief Justice.

This is a suit by Mrs. Beatrice Flannery and others to reform a partition deed by which certain land was set aside to her as her separate property. The material question to be determined is whether her husband was properly joined as a party plaintiff in the suit.

J. W. Wade and his wife, Hettie Wade, owned several tracts of land during his lifetime. After his death his widow and the children partitioned the land among themselves. At the time of the partition it was agreed that a certain tract containing 104 acres should be so partitioned as to give Mrs. Flannery, one of the daughters, fifty acres off the east end of the tract, together with all the improvements, and to give the remaining 54 acres, without any improvements, to Ernest W. Wade, one of the sons. The attorney in drawing the partition deed called for the dividing line to run straight across the tract, so as to leave 50 acres on the east end and 54 acres on the west end. Sometime after the partition deed had been executed, Mrs. Flannery discovered that the line had been so drawn as to leave the improvements on the tract set aside to Ernest W. Wade. This suit was brought to reform the partition deeds and to have the cross line dividing the two tracts so run as to leave the improvements on the 50 acres set aside to Mrs. Flannery.

A trial before a jury resulted in a judgment for the plaintiffs. The judgment was reversed by the Court of Civil Appeals. Happ v. Happ, 160 S.W.2d 127. The Court of Civil Appeals held that the trial court erred in failing to sustain a general demurrer to plaintiffs' petition because H. E. Flannery, the husband of Beatrice Flannery one of the plaintiffs, did not properly join in the petition as a party plaintiff.

The essential part of the plaintiffs' petition is as follows:

"Now comes Mrs. Hettie Wade, a feme sole, and Mrs. Beatrice Flannery, joined pro forma by her husband, H. E. Flannery, hereinafter called plaintiffs, complaining of Ernest W. Wade, Clifford Wade, Vallie Wade McNutt and husband, W. E. McNutt, Zula McNutt and husband, J. M. McNutt, hereinafter called defendants, and for cause of action and grounds of relief show unto the court the following:

"I. That the plaintiffs, Mrs. Hettie Wade and Beatrice Flannery and husband, H. E. Flannery, are all residents of Hill County, Texas; that the defendants, Ernest W. Wade, Clifford Wade, Zula McNutt and husband, J. M. McNutt, are all residents of Hill County, Texas; and that the defendants, Vallie Wade McNutt and husband, W. E. McNutt, are residents of Runnels County, Texas.

* * * * *

"III. Plaintiffs further show that in drafting the deed to the plaintiff Beatrice Flannery to the 50 acres off of the east side of the 104 acre tract, hereinabove described, the field notes thereof and therein were so drawn as that the said 50 acre tract conveyed to the plaintiff Beatrice Flannery did not and does not include the improvements located on said 104 acre tract; * * *

"Wherefore, defendants having been heretofore cited to appear and answer herein, plaintiffs pray that on a hearing hereof these plaintiffs have judgment correcting and reforming the deed conveying 50 acres off of the east side of the 104 acre tract to the plaintiff Beatrice Flannery in such manner as that said conveyance will operate to transfer and vest title to all improvements located on said 104 acre tract in the plaintiff Beatrice Flannery; * * *"

Revised Statutes, Article, 1983, provides that: "The husband may sue either alone or jointly with his wife for the recovery of the separate property of the wife." This suit involved the interest of Mrs. Flannery, a married woman, in her separate property. Under the above statute the husband was an indispensable party plaintiff in such a suit, in the absence of a showing that he refused to join therein.

We have been unable to find any case in which this Court has discussed the question as to whether in a suit to recover the wife's separate property there was a sufficient compliance with the statute where the husband joined "pro forma" as a party plaintiff. There is considerable conflict in the decisions of the Courts of Civil Appeals on the question. In the cases of Gulf, C. & S. F. Ry. Co. v. Jones, 3 Willson Civ.Cas.Ct.App., § 21, page 39; Bullock v. Englert, Tex.Civ.App., 125 S.W.2d 663; Houston Electric Co. v. Potter, Tex. Civ.App., 51 S.W.2d 754, writ dismissed; Houston & T. C. R. Co. v. Red Cross Stock Farm, 22 Tex.Civ.App. 114, 53 S.W. 834, it was held that even though the husband joined in the petition as a plaintiff "pro forma," he was properly before the court as a party plaintiff so as to authorize the court to adjudicate the subject matter of the suit.

In the case of Gulf, C. & S. F. Ry. Co. v. Jones, 3 Willson Civ.Cas.Ct.App., § 21, page 39, it was there said: "The husband was a necessary party plaintiff, and was in contemplation of law such party from the commencement of the suit. Describing him in the petition as a party pro forma did not have the effect to make him other than a real party. The law made him a real party, ex necessitate, and as such he was in all respects liable. Such being his status, the plea of the statute of limitations was properly disregarded." The contrary was held in the following cases: Newell v. State, Tex.Civ.App., 103 S.W.2d 194, 195; Rhodes v. Taliaferro, Tex.Civ. App., 119 S.W.2d 703; Cruse v. Archer, Tex.Civ.App., 153 S.W.2d 679; Texas Bldg. & Mortgage Co. v. Rosenbaum, Tex. Civ.App., 159 S.W.2d 554; Lucas v. Dallas County, Tex.Civ.App., 138 S.W.2d 179.

The test to be applied in determining whether or not there was a sufficient joinder of all necessary parties plaintiff is whether the judgment, if it had been favorable to the defendant, would have protected the defendant under a plea of res judicata against a subsequent suit involving the same subject matter. If H. E. Flannery and his...