Whitmire v. Powell , 103 Tex. 232 ( 1910 )

This suit was brought by R.H. Powell as administrator of the estate of Jennie E. Pippin, deceased, and by her minor son, against A.F. Whitmire and wife for the recovery of a half interest in fifteen acres of land and for partition. J.D. Pippin, the husband of Mrs. Jennie E. Pippin, being alive and his residence unknown, was made a party defendant and served by publication and an attorney appointed to defend his interests in the suit. There was a judgment that plaintiffs recover one-half of the land with a decree of partition and that of the one-half so recovered, J.D. Pippin was entitled to a one-third interest for life.

The following facts as disclosed by the record show the origin and nature of the controversy. J.D. Pippin bought of one Doran the fifteen acres of land in controversy for $625, cash, and five notes of $100 each, due in one, two, three, four and five years. These notes were secured by a mortgage upon the land with a power of sale, W.H. Lewis being trustee. Subsequently J.D. Pippin sold to his wife, Jennie E. Pippin, one-half of the land for $312.50 and the assumption on her part to pay one-half of the five notes. In the year 1900 Mrs. Jennie E. Pippin died and R.H. Powell was appointed administrator of her estate. The five notes originally given for the land were assigned by Doran to Mrs. E.E. Waller, who, after the death of Mrs. Pippin, caused Lewis to sell the land under the deed in trust and bought in the land, and then transferred the notes and the land bought in by her to A.F. Whitmire. The three last notes to mature not having been paid or satisfied by the sale of the property were subsequently presented to Powell, the administrator of Mrs. Pippin, and having been rejected were sued upon in the County Court. After the sale at the instance of Mrs. Waller and after this suit was brought, A.F. Whitmire brought suit for the land against Sallie May, the tenant in possession, asserting his title under the sale to Mrs. Waller and her conveyance to him, and it was adjudged in that suit that he was entitled to a one-half interest in the land and that the other half belonged to Mrs. Pippin's administrator and heirs. (Whitmire v. May, 96 Tex. 317.) At the time of the trial of the present case there seemed to have been a suit pending in the County Court of Dallas County on the three notes last maturing.

Clearly the judgment in Whitmire v. May, supra, was resadjudicata of the present controversy. That case was for the same land and was between the same parties or their privies and involved the same facts as in this case and it settled the controversy. If the suit on the notes in the County Court has resulted or should result in their establishment as a claim against the estate of Jennie E. Pippin, it may be that they can be enforced against her interest in the land recovered in this and the former suit. There is much discussion in the petition for the writ of error of the question whether the notes when presented to the administrator of Mrs. Pippin were supported by affidavit as required by our probate statutes. This seems to us unnecessary, for if the supporting affidavit to the notes appear in the suit in the County Court the suit may be held good when without them it would necessarily fail.

We think, however, upon the subject of improvements upon the property, the plaintiff in error has a right to complain. It is not a question of improvements in good faith made by a defendant who has no right to the property, but it is a question of the right of one tenant in common to be compensated for proper improvements made upon the common property. There is a very obvious distinction between the two questions. (Thompson v. Jones, 77 Tex. 626.) If Whitmire had lost the land entirely as a result of this suit, then the decision of the Court of Civil Appeals is probably correct, because he made the improvements while a suit was pending for its recovery. But as a tenant in common of the tract he had a right reasonably to improve it and to be reimbursed for the expense in partition; provided, the improvements were not placed upon it for the purpose of embarrassing his cotenants in the assertion of their rights. A tenant in common who has improved the land not for the purpose of embarrassing his cotenants, is entitled to have them set apart to him, providing it can be done in justice to his cotenants; if this can not be done, then he is entitled to compensation for them in the partition. (Robinson v. McDonald, 11 Tex. 385.)

It is assigned as error that the Court of Civil Appeals erred in holding that there was a final judgment in the case. The judgment did not mention Mrs. Whitmire; and is not a decree for her. The subject matter of the controversy is adjudged to others and she gets nothing. This is a judgment against her. Besides, it appears from the evidence that she has no interest in the suit. Her husband's interest in the land is clearly his separate estate and she has no interest in it.

For the error of the trial court and of the Court of Civil Appeals in their ruling upon the question of improvements in good faith the judgment is reversed and the cause remanded.

Reversed and remanded.