Steddum v. Kirby Lumber Co. ( 1920 )

We approve the recommendation of the Commission of Appeals as to the judgment to be rendered in this case, but rest the decision upon the ground on which we granted the writ of error, namely, that there was some evidence adduced showing the plaintiff's ownership of a definite interest in the land, and he was therefore entitled to have the case go to the jury on the issue.

The Court of Civil Appeals, while in our opinion reaching an erroneous conclusion as to the effect of the evidence on this question, correctly held that it is incumbent upon a plaintiff suing in trespass to try title for an undivided interest in land to establish his title to a definite interest, whether it be the whole interest for which he sues or a less interest; and that he is not entitled to recover the exclusive possession of the land unless he establishes not only his own title to an undivided interest, but also that the defendant has no title to any interest. Such is the holding on the first proposition in Baldwin v. Goldfrank, 88 Tex. 249, 31 S.W. 1064, and on the other in Davidson v. Wallingford, 88 Tex. 619, 23 S.W. 1030. Both decisions are clearly correct, and the Court of Civil Appeals properly followed them.

Neither of these decisions in any way contravenes the rule many times announced by the court, that as against a trespasser one tenant in common may recover the possession of the entire tract, and this, though he only claims in his petition and establishes title to an interest less than the whole. The reason for a tenant in common being so entitled is that he owns his particular interest in the whole land; and since he is entitled to the possession against everybody except his co-tenants, he is necessarily entitled to the exclusive possession against a trespasser.

Before the enactment, in 1879, of the requirement of the statute, now Article 7733, that a plaintiff suing in trespass to try title for an undivided interest in land, must state in his petition "the amount" of the interest, it was held that as against a trespasser a tenant in common was entitled to recover the exclusive possession upon establishing title to an undivided interest in the land though the interest was undefined. Pilcher v. Kirk, 55 Tex. 208, is such a decision. But this requirement of the statute having been enacted after the trial in that case, the Judge writing the opinion was careful to point out at its conclusion that because of the change introduced by the statute a different rule in this respect from that applicable to the first trial would govern the second trial, expressly directing attention to the holding to like effect in Stovall v. Carmichael,52 Tex. 383. In Baldwin v. Goldfrank, Judge Gaines was stating the rule, not as it existed before the enactment of the statute, but under the statue.

It is only as against a trespasser that one tenant in common is entitled to recover the exclusive possession of the entire land. He is not entitled to evict a defendant in possession by merely showing the ownership of his own particular undivided interest. Before he can evict him and thus appropriate the exclusive possession, he must show that he is a trespasser and therefore justly subject to eviction. Davidson v. Wallingford so holds, and correctly states the rule.

Phoebe Steddum was divorced in 1839, and died about 1851. Under the rule that a status once established as existing will be presumed to have continued, in the absence of proof of the contrary; and the evidence adduced strongly indicating that she bore the name of Phoebe Steddum down to the time of her death, coupled with the fact that after a long lapse of time there has been nothing to show the existence of children of another marriage, a jury would, in our opinion, have been warranted in finding that she died without issue of a second marriage and without having remarried. These facts and circumstances clearly afforded some evidence of the plaintiff's inheritance of her original interest in the land; and he was entitled to have the issue submitted to the jury.

Whatever may have been the rule under the laws in force in the Republic at the time of the divorce decree with respect to a wife's adultery operating as a forfeiture of her interest in the community property, we are unwilling to hold that under the Constitution of the Republic such a forfeiture could have resulted from a mere divorce proceeding, or could have been decreed otherwise than in a direct proceeding for the purpose of declaring the forfeiture, with full opportunity on the part of the wife to be heard. A wife against whom such a forfeiture was sought, would have been entitled to a trial upon the direct issue. Such a decree without the opportunity of having such a trial would not have been countenanced by that Constitution.

The judgments of the District Court and Court of Civil Appeals are reversed and the cause remanded to the District Court.

Reversed and remanded.