Story v. Story

On Rehearing.

LOONEY, Justice.

In our original opinion, among other things, we said: “We also overrule appellant’s contention that the effect of the temporary writ was to change the status quo and accomplished the main purpose of the suit. The property in question was in possession of the administrator, through his tenant, when, without the knowledge or consent of the administrator, appellant became an intruder, taking possession under circumstances that, in effect, constituted a trespass. The operation of the writ, in our opinion, will restore and maintain, rather than disturb, the status quo. see Houston Funeral Home v. Boe, Tex.Civ.App., 78 S.W.2d 1091.”

In her motion for rehearing, appellant states that, “If the above statement of the court were correct, then the findings of the court would be correct; but the above statement of the facts are in conflict with the undisputed evidence”; at another place in the motion, appellant states: “But on the contrary the facts show that appellant had been for many years in possession of this property by tenants, and to oust appellant out of the possession at this time would disturb the status quo as it had existed for many years.”

Appellant’s claim that she had been in possession of this property for many years was based upon the fact that, prior to the settlement, by common understanding of the parties at interest, she was permitted to collect the rents accruing upon this and other properties belonging to the Story estate, aggregating from $65 to $75 per month. She does not contend that the property in question constituted the family homestead, as that seems to have been in Dallas County; nor does she contend that at or prior to the settlement, she was in actual pedal possession; nor is she asking the probate court to set aside this, or any other designated property, as a homestead; on the contrary, is asking that she be allowed $5,000 in lieu of a homestead and $500 in lieu of exempt personal property; and it is not denied that she did not enter personally upon this property until after the consummation of the settlement, prior thereto it being in actual possession of a tenant.

The instrument executed by appellant on the settlement, conveyed to the Story heirs, naming them, several tracts of acreage lands and certain city and town lots in Dallas County, also including the property in question, described as “All that certain lot', tract or parcel of land lying and being situated in the County of Somer-ville, State of Texas, described as follows, to-wit: Part of the East ½ of Lot No. 5, division of the town of Glenrose, Texas, known as the Farr Division in the County of Somerville, Texas.”; the instrument, among others, contained the following language: “And for such consideration of Five Thousand Dollars ($5,000.00) I, the said Ella Coats Story, a widow, do hereby acquit, release and discharge the said Isaac B. Story (naming other heirs) and the said estate of the said Shelton A. Story and any property of the said Shelton A. Story, deceased, known or unknown, listed or unlisted, described or not described, from all claims, demands and causes of action whatsoever that I have or claim to have against the said parties, estate or property, rising out of any of the foregoing matters or my marriage to the said Shelton A. Story or any other will of the said Shelton A. Story, known or unknown, or which may be found, and I do by these presents bargain, sell, transfer, and convey any future interest that I may or might have in said above described property unto the said (naming the grantees).”

It is obvious, we think, that the property in question belonged to the estate of Shelton A. Story and was in the constructive possession of the administrator, subject to the right of appellant to collect the rents above mentioned, which it seems she was permitted to do by common consent of the parties at interest; but when the settlement was consummated and she conveyed and relinquished all her right, title and interest to the heirs and to the estate, she was no longer entitled to collect rentals, and, if it could be said that, prior to the settlement, she was in constructive possession of the property by reason of the fact that she was authorized to collect rentals, that, of course, ended when her authority and right to collect further rentals ceased, and her subsequent personal entry upon the property was a trespass upon the constructive possession of the administrator and the heirs, hence we think the writ mandatorily requiring her to vacate did not disturb, but restored the status quo as it existed on the consummation of the settlement between the parties. We therefore overrule appellant’s motion for rehearing.

BOND, C. J., dissents.