St. Louis, Arkansas & Texas Railway Co. v. Prather , 75 Tex. 53 ( 1889 )

GAINES, Associate Justice.

This was an action of trespass to try title, brought by the appellees against the appellant. The plaintiffs alleged in their petition that they were the owners of an undivided half interest in the lots in controversy, and that the defendant had unlawfully entered upon tlie property and still withheld the possession from them. The defendant pleaded not guilty and the statute of limitations.

The conclusions of fact found by the court show that-the lots were conveyed to one N. C. Prather while a single man; that he subsequently married, and died without issue, leaving his wife surviving him. The lots were the homestead of Prather and his wife at the time of his death, and continued to be occiypied by the wife as her place of residence until the 9th day of April, 1887, when she sold and conveyed them to the defendant. The plaintiffs are the brothers and sisters of the deceased husband and the descendants of his brothers and sisters.

The court below correctly held that the plaintiffs were owners of an undivided one-half interest in the property, but ruled that they could not recover possession in the action of trespass to try title, and decreed a. partition adjusting what was considered to be the equities between the parties.

The defendant gave notice of appeal and filed an appeal bond, but has not filed briefs in this court. Its assignments of error are, therefore, considered as waived. The appellees filed, cross assignments, which are presented in their brief. The first is in effect that the court erred in holding that they Avere not entitled to recover on their action of trespass to try title. We think this assignment well taken. It is elementary laAv that one tenant in common may maintain an action of ejectment against his cotenant Avhen the latter has ousted him of possession of the property owned in common. Freem. on Coten. and Part., sec. 291.

The author cited says: “While an ouster is essential to maintain the action of ejectment by one tenant in common against another, yet the circumstances of the case or the condition of the pleadings may be such as to concede the fact of ouster and thus dispense with proof of its existence. If the defendant by his ansAver claim the Avhole premises in his own right as owner thereof in severalty, he relieves the plaintiff from the necessity of proving an ouster at the trial." Id., sec. 292.

Our statutes provide that the plea of not guilty or other ansAver to the merits “shall he an admission by the defendant for the purposes of the action that he was in possession of the premises sued for, or that he claimed title thereto at the time of commencing the action, unless he states distinctly in his ansAver the extent of his possession or claim, in which case it shall be an admission to such extent only." Rev. Stats., art. 4794.

The defendant’s pleas clearly sIioav that it recognized no right of common ownership in the premises sued for. We think, therefore, that for the purposes-of the action they should be deemed under the statute equivalent to an ouster. Hence, Ave conclude that plaintiffs were entitled upon proof of their ownership of one-half of the lots to a judgment admitting to possession of the property with defendant, and that it Avas not competent for the court to decree a partition. If the defendant desired a partition it should have pleaded the facts and asked a judgment accordingly. Affirmative relief in an action of trespass to try title can not be granted a defendant upon the plea of not guilty. There must be a special apsAver with an appropriate prayer for relief.

For the error pointed out the judgment is reversed and the cause remanded at appellant’s costs.

Reversed and remanded.

Delivered November 8, 1889.