Zamora v. Zamora, 4813

• Citation: 241 S.W.2d 635
• Decision Date: 31 May 1951
• Docket Number: No. 4813,4813
• Parties: ZAMORA v. ZAMORA et al.
• Court: Texas Court of Appeals

Page 635

241 S.W.2d 635

ZAMORA v. ZAMORA et al.

No. 4813.

Court of Civil Appeals of Texas, El Paso.

May 31, 1951.

Rehearing Denied July 25, 1951.

Kelley, Looney, McLean & Littleton and Van N. Culpepper, all of Edinburg, for appellant.

Deane C. Watson and Rankin, Kilgore & Cherry, all of Edinburg, for appellees.

PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of Hidalgo County. Guadalupe Garza Zamora, joined by all the other heirs of Maria Ignacia Zamora de Garza, save and except Felicitas Garza Zamora and her husband, as plaintiffs sued the said Felicitas Garza Zamora and her husband, seeking a declaratory judgment as to the attempted partition of the estate of Maria Ignacia Zamora de Garza. The defendants plead in abatment to the suit of plaintiffs and urged certain exceptions thereto. On a pre-trial hearing the court sustained the plea in abatement with special exceptions urged and the plaintiffs declining to amend, dismissed the suit. This appeal was perfected from the orde of dismissal.

As stated, this litigation is between the heirs of Maria Ignacia Zamora de Garza. One of the plaintiffs, who was an heir of the said deceased Maria Ignacia Zamora de Garza was likewise the administrator of her estate. Plaintiffs alleged in substance that plaintiffs and defendants had all joined in an agreement whereby it was agreed that Guadalupe Garza Zamora be appointed the Commissioner to partition the estate of Mariz Ignacia Zamora de Garza among her heirs, the parties to such contract. A copy of this contract was attached to the plaintiffs' petition. There was also attached to plaintiffs' petition a deed in which all the plaintiffs joined Guadalupe Garza Zamora, signing the deed by virtue of being an heir and by virtue of the authority purported to be conferred upon him by the agreement between the heirs naming him commissioner for partition. This deed purported to partition to Felicitas Garza Zamora share No. 8 containing 69.96 acres. The nine portions into which the lands were divided were each specifically described in the deed.

Felicitas Garza Zamora and her husband declined to execute the deed and repudiated the partition sought to be consummated thereby. They claimed share No. 3, which was by the said deed purported to be partitioned to Jesus Garza Zamora. They asserted in their answer that Guadalupe Garza Zamora had verbally partitioned that tract to them.

The instrument appoinging Guadalupe Garza Zamora commissioner to partition the land recites that he should have power to determine the amount that each was entitled to receive from their mother's estate, and to make distribution to each. It was recited that each was entitled to an undivided one-ninth interest in the estate. He was to prepare the necessary field notes and instruments to effectuate the partition. All agreed to be bound by the judgment of Guadalupe Garza Zamora with reference to the partition of the estate.

In substance the plaintiff's petition sought to have it declared that the partition as attempted by the deed of Guadalupe Garza Zamora, joined by all of the heirs other than defendants, was valid in law and a valid and binding partition of said lands. In the alternative it was stated in the petition that plaintiffs sought specific enforcement of the agreement to partition.

By way of abatement the said defendants plead the agreement for partition and made the agreement for partition attached to plaintiffs' petition a part of thier plea; further that in conformity with the agreement Guadalupe Garza Zamora caused said property to be surveyed and had the lines thereof established upon the ground; that Guadalupe Garza Zamora made an oral partition by granting, giving and telling the defendants that their share of the property belonging to the estate in San Salvador del Tule Grant in Hidalgo County would be tract No. 3, as denominated in the partition deed described in and attached to plaintiffs' original petition; that in pursuance of such partition the defendants entered upon and took possession of Tract No. 3 some time during the latter part of October or during the month of November, 1949; further that approximately a year after the date that they entered into possession of tract No. 3 Pablo Garza Zamora, the Administrator of the estate, instituted in the County Court a proceeding to divest these defendants of the possession of said tract No 3; thereafter, upon motion of the said Pablo Garza Zamora said suit was dismissed and these defendants remained in possession of tract No. 3; that defendants under said oral partition which was prior to the execution of the purported partition deed, had entered into possession of said tract No. 3 and that when they so entered into possession a justiciable cause of action had arisen and existed, and exists, and the court does not have jurisdiction to issue a declaratory judgment in such a case; that there is a legal remedy open and available, ample and adequate. By way of special exception defendants urged that the plaintiffs' petition stated no cause of action in that it seeks to have declared as valid a certain agreement for the purpose of partitioning the personal and real property of the estate of Maria Ignacia Zamora de Garza, and further to declare valid a certain deed executed by Guadalupe Garza Zamora as a partition deed under and by virtue of the agreement of partition, and to declare that these defendants have no right, title or claim or interest in and to tract No. 3 as designated in plaintiffs' original petition for the reason that prior to the execution of said partition deed a cause of action at law had already matured and the customary processes of law were open and...