Burns v. Parker , 1911 Tex. App. LEXIS 243 ( 1911 )

1. The judgment as to the title to the land is correct.

2. We cannot, however, approve of the judgment in reference to the improvements. Mrs. Nussbaumer, now Mrs. Parker, erected rent houses on the lots A, B, C, and D shown on the map to get an income to pay taxes, insurance, and the support of the family. She testified she had no intention of abandoning any part of the homestead by doing so. Since that time she has only occupied for homestead purposes that part of the original homestead lying in the northeast corner of the same and fronting 100 feet on Chestnut street and extending back the width of its front along the north side of Dawson street 191 1/2 feet, upon which the residence is situated. A house was erected for rental purposes on a lot beginning at the northwest corner of the present homestead lot; thence running south, with the line of Chestnut street, 50 feet; thence eastwardly, parallel with Dawson street, 191 1/2 feet; thence northwardly, at right angles to Dawson Street, 50 feet, to the north boundary line of the original Nussbaumer homestead; thence westwardly, 191 1/2 feet, to the place of beginning. The front part of this lot is not inclosed, and it is not separated from the home lot by any fence. At the rear of the lot, extending from the back end thereof, between said lot and the present home lot, the fence reaches nearly to the rear of the house, and from this point runs across the lot northwesterly to its northwest line, and helps to inclose a cow lot used by the occupants of the rent cottage. A fence runs entirely across the home lot east and west, separating the three lots, B, C, and D from the rest of the home lot, and they are separated from each other by a fence. The evidence was sufficient to support the court's finding that Mrs. Nussbaumer had abandoned, as a homestead, all that part of the original homestead, except the 100 × 191 1/2 feet upon which the residence is situated. Wynne v. Hudson, 66 Tex. 1, 17 S.W. 110; Langston v. Maxey,74 Tex. 155, 12 S.W. 27; Blackburn v. Knight, 81 Tex. 326, 16 S.W. 1075.

3. There was no error in refusing to award appellant anything for rents. It was not shown that appellant or his guardian had ever made formal demand to be admitted in the possession, and that such possession had been refused.

4. The court adjudged the title to the four lots segregated from the homestead, and on which rent houses were built, to appellant, subject to Jennie E. Parker's use of one-third of same for life, and adjudged the houses on these four lots to belong to Jennie E. Parker, and ordered partition of same, and, if not susceptible of partition, the right to remove the houses from the lots. The court correctly adjudged the title as to these four lots; but the court was in error in adjudging title in Mrs. Parker in the houses thereon, and allowing the removal of the houses from the lots. These houses having been erected by Mrs. Parker on land in which she only had an estate of one-third for life, and in which Ernest Burns was the absolute owner of the fee, subject to the life estate, they could not be removed by her from the land. Mrs. Parker must have known, at the time of the erection of the houses, that after her death the property would become the absolute property of Ernest Burns, the remainderman; and it must be held that she intended the improvements as a gratuity to him. The court should have ordered these four lots partitioned between Mrs. Parker and Ernest Burns, giving her a one-third interest therein during her life, without regard to the improvements. Clift v. Clift, 72 Tex. 144, 10 S.W. 338; Dearing v. Jordan, 130 S.W. 876; Calhoun v. Stark, 13 Tex. Civ. App. 60, 35 S.W. 410; Thurston v. Dickinson, 2 Rich. Eq. (S.C.) 317, 46 Am.Dec. 56.

5. The court did not err in refusing to partition the 26 feet by 150 feet between appellant and Mrs. Parker. This property was the individual property of Mrs. Parker, and the fact that she had permitted it to be platted and used by the tenants occupying lots B, C, and D, as shown by the map, did not convey title thereto, or render the same subject to partition.

6. Lots 1 and 8, in block 3, were conveyed to Theodore Nussbaumer and his wife, Jennie E. Nussbaumer, during their marriage, and they owned the same as community property. During the lifetime of Theodore Nussbaumer, Mrs. Jennie E. Nussbaumer erected out of her separate funds two houses thereon; one being on lot 1, fronting on Chestnut street, and one on lot 8, facing College street. The house still stands on lot 1. But the house on lot 8 burned after the death of Theodore Nussbaumer, and Mrs. Nussbaumer rebuilt it out of the insurance money, which insurance money was her separate property. It burned a second time, and she again rebuilt it out of her separate funds.

Appellant contends that the court erred in not awarding him an undivided interest in the house on lot 1, block 3, since, having awarded him a half interest in the lot, the improvements thereon go with it. This contention is not sustained. The house on this lot was erected during the lifetime of Theodore Nussbaumer out of the separate funds of his wife upon their community property, and upon partition of the community estate between her and the heir of the deceased member of the community she was entitled to be reimbursed for the money expended by her in improving the same. She was entitled, upon partition, to be reimbursed the amount the community property of herself and deceased husband was enhanced by such improvements. Clift v. Clift, supra.

No contention is made that the wife was not entitled to recover for the improvements on lot 8, block 3. The house on that lot had burned and was rebuilt after the death of Theodore Nussbaumer, and at a time when Mrs. Parker and appellant, Burns, owned the lot as tenants in common. A tenant in common has the right reasonably to improve the land on which he is such tenant, and to be reimbursed for the expense on partition, provided the improvements were not placed upon it for the purpose of embarrassing the cotenant in the assertion of his rights. A tenant in common, who has improved the land, not for the purpose of embarrassing his cotenant, is entitled to have such improvements set apart to him, providing it can be done in justice to his cotenant. If this cannot be done, then he is entitled to compensation for the same in the partition. Whitmire v. Powell (Sup.) 125 S.W. 890; Robinson v. McDonald, 11 Tex. 385,62 Am.Dec. 480.

If lots 1 and 8, block 3, cannot be partitioned so as to give Mrs. Parker the improvements thereon, then the lots should be sold, and out of the proceeds Mrs. Parker should be paid the amount the lots were enhanced in value by the improvements placed by her thereon, and the remainder equally divided between appellant and appellee.

The judgment is affirmed as to the title to the property, but reversed and remanded to be partitioned in accordance with this opinion.

Affirmed in part, and reversed and remanded in part.