Gorman v. Campbell , 135 S.W. 177 ( 1911 )

FLY, J.

Appellees sued appellant and Mark O. Fisher and wife, Margaret Fisher, for partition of a certain parcel of land at the northwest corner of Travis street and Avenue D, described as facing 26 varas on the street first named and 28% varas along the west side of Avenue D, running back 42% varas to an alley, and having about 53 varas frontage on the alley. The cause was tried by the court without a jury, and judgment rendered that the property was susceptible of partition as between Campbell and wife and Fisher and wife and appellant, and that the interests of the latter were incapable of partition, and commissioners were appointed to make the partition of the land into two parts of equal value, allotting one part to Campbell and wife and the other to the defendants in the lower court. It is provided in the decree that, if the defendants, or either of them, desired to have their part of the land sold, a sale was ordered and a special receiver was appointed to carry out their wishes.

It is provided in an amendment to articles 3611 and 3621 of the Revised Statutes of 1895, enacted in 1905 (page 95, Gen. Laws), that the court shall determine before entering the decree of partition whether the property, or any part thereof, is susceptible of partition, and, if so, then a partition shall be decreed of the whole or that part susceptible of partition, and appoint commissioners to make the partition; and if the whole or a part of the property is not susceptible of partition, a sale shall be decreed. The object of the amendment seems to be to allow a partition of a part of the property and to place the duty on the judge of ascertaining whether the land is susceptible of partition in the first instance, instead of leaving 'that fact to be ascertained by the commissioners of partition and reporting it to the court for its decision, as was done under the old law. This is the only change in the old statutes relating to partition.

In the petition for partition appellees prayed that their one-half of the property be set apart to them, and neither of the defendants asked for a partition of their one-half interest, but the court held it incapable of partition and gave either of them the right to a sale, if it was desired. That action of the court is not objected to as being unfair or inequitable, the only objections urged being that it was not in accord with the amendment of 1905, as will more fully appear from the consideration hereinafter of the assignments of error.

In article 3618, which is unaffected by the amendment of 1905, it is provided that the property shall be divided into as many shares as there are persons; yet it has often been the case that estates have been divided so as to give several persons jointly an undivided part of the property, and the power to do this has never been questioned. In the case of Kremer v. Haynie, 67 Tex. 450, 3 S. W. 676, it was held: “Upon another trial, should the commissioners set apart to the plaintiff his portion of the land by metes and bounds, and the balance to the defendants jointly, as they did upon the former trial, it will not be proper for the court, over the objections of defendants, to order the sale of their portion of defendants’ land in order to make partition amongst them, though the commissioners should so recommend. It may be more convenient and suitable to the defendants to hold their share in common; and. as the plaintiff has accomplished the object of his suit in having his share severed from that of his co-tenants, it would be improper to force upon the only parties left to be affected by the decree as to the balance of the land a judgment which they do not ask, and against which they all protest.” That decision sustains that part of the decree which gives one half of the property to appellees, Campbell and wife, and would sustain a complaint against the sale of the other half allotted to appellant and her codefendants, if, as is stated in the first assignment of error, there had been any positive order of sale as to their part. They sought no partition of their interest, and the court held that, while the land could be divided into two equal parts, neither half was susceptible of division, and the sale was provided only in the event one of them desired it.' The ease of Kremer v. Haynie, herein cited, was cited in the case of Hensel v. Sturm, 25 S. W. 817, by this court, as sustaining the following proposition: “There is nothing to show that the part belonging to appellant could not be equitably set apart to him and the other sold. If that could have been done, appellant was entitled to the division.” So in this case Campbell and wife were entitled to their half of the land, and no complaint is made in either of the three assignments of error copied into appellant’s brief of their receiving one-half of the property. Fisher and wife offered no objection in the trial court to the decree and prosecuted no appeal to this court.

It is not claimed that there was no testimony tending to show that whatever half of the land, in value, might be allotted to the defendants in the lower court was not susceptible of partition, but the complaint is that there is the absence of such finding in the decree. It was not necessary for the court to set out in the decree the testimony upon which it rests, but the presumption will obtain that it is based upon the facts. The court, in terms, found that the part of the land allotted to the defendants was not susceptible of partition, and' it is easy to understand that a parcel of city property might be capable of being cut in half, and yet if either half was divided it might destroy the value of each part. Having determined this fact, the court did not order a sale of that part, but left it with the defendants themselves to determine that matter. The decree is fair and just, and strictly in compliance with the law.

In the case of Glasscock v. Hughes, 55 Tex. 469, the court, in discussing the rights of a plaintiff in suits for partition, held: “He can obtain partition of his interest, though partition may not be made of the several'interests of his cotenants. It is for the defendants, if they so wish, to set up their respective shares and have them allotted to them in severalty.” Appellant did not claim any specific share of the land, and cannot, with any effect, complain that the decree gave her more than she asked for in her pleading.

The judgment is affirmed.