Jetton v. Jetton , 1952 Tex. App. LEXIS 2350 ( 1952 )

On Rehearing

I do not see that we have added anything to the case, by way of a new theory or otherwise. Our statement that the plaintiff had “consented to and adopted” the partition (it was the partition, not the partition decree, which the plaintiff consented to and adopted) “and effected a partition in fact” is a conclusion from facts stated in the opinion, and those facts are in accord with the trial court’s findings. It may be that we might have said “acquiesced in and ratified” instead of “consented to and adopted”, but the trial court, having found in paragraph 1 of the supplemental findings that plaintiff was present, in person and by attorney, when the partition decree was rendered, found in paragraph 2 of the supplemental findings that plaintiff "accepted the property so distributed to him under the aforesaid divorce judgment and has used the same for his exclusive use and benefit.” It is to be remembered that defendant owned one-half of the property so accepted and used by the plaintiff and that the plaintiff was not entitled to his. wife’s part except by virtue of the partition. Under the circumstances, the trial court’s finding that plaintiff accepted and used the property set aside to him would seem to necessarily imply that plaintiff "consented to and adopted" the partition. The relevant facts on which our conclusion is based are supported by the proof and by paragraph V of the defendant’s answer, but regardless of pleadings, were proved without objection that the proof was not supported by the pleadings, and the issue would seem to have been tried by consent. Use of the word estoppel is not limited to conduct which might deceive a party. Where an attempted partition was ineffective for some reason but had been carried into effect in ways analogous to that in which the partition between plaintiff and defendant was effected, it has sometimes been said that a party in plaintiff’s position was estopped to deny the partition. In addition to the authorities cited in our opinion see 68 C.J.S., Partition, § 16, pp. 19, 20; 40 Am.Jur. 17, Sec. 20; 21 Am. & Eng. Encyc. Law 1191, Sec. 9. The trial court’s supplemental conclusion of law was in accordance with these holdings.

We adhere to our statement that “at least some of this Mr. Jetton must have known.” Plaintiff had bought a residence in or near Jasper. See S.F. 17.

The motion,for rehearing is overruled.