Boese v. Parkhill

LANE, J. For a better understanding of the opinion to follow, we at the outset deem it advisable to make a statement of the nature of the case and the proceedings of the trial thereof as follows: One H. -H. Massey, Under whose will appellants claim their right to recover in this suit, was married three times. His first wife was named Jane, by whom he had one child, to wit, James F. Massey. The name of his second wife was “Frances,” by whom he had seven children — Mack, Homan, Cassandra, Gus, Eugene, George, and Andrew. His third wife was named Fannie, by whom he had three children — Rnth, Ethel, and Mart; the last three known in these proceedings as the “young set.” On the 25th day of October, 1894, said H. H. Massey died and left surviving him his third and last wife, Fannie, the mother of Ruth, who married Claude Vinton; Ethel, who married R. L. Boese; andi Mlart. All his children hereinbefore named also survived him. He left a will, in which is to be found the following: “All my last debts and funeral expenses shall first by my executors hereinafter named be paid out of my estate as soon after my deceased has shall by them be found conviant. “I give, devise and bequeath to my beloved sune James Massey, five dollars of my estate, and all so my interest in my land estate in Missipuy. I want to presant wife to hav her part intrust in my undervided half of my old homestead. Jim to have 5.00 and my intrust in Miss. The young set to have in tliare mothers intrust in my homestead the balance of my real estat to go to my decease wife, F. E. Massey, children to be rented and kept together until Gus and Baby becomes of age then to be equally divided between F. E. Massey’s children, and I want the Ned Hill place to be equally divided between Mack, Homan, Cassey and Gus, and I want Gene to cultivate the Hill place, and take care of the four children, and to take charg of all my 6 head of horses, wagon, bugga, farm implements and household goods. I want Faney children by me to have three cows and ■ calves and also a reasonable suply of corn and meat for tulve month suply. I want Gene to make deed to Lexington place if the negro comes with paymen in Oct. which 47.00 too notes, 50.00' each, due 1895 and 1896, this to fill contract I made. If payment is not made in Oct. 1894 to be nul' and void, then then I want it to be rented for the suport of Myne and F. E. Masseys children and want the balance of my cattle to be kept on the place for the suport of family $387.00 to be pad Gene Massey, then the Millard place to want the Oort to make Gene a deed to 40 acres none as the Mialard place, of which the money to go to mine and F. E. Massey children.” At the time of his death, said H. H. Massey was purported to be the owner of some property in Mississippi, and five tracts of land in Texas, a lot in the town of Lexington, and some personal property. Some of this property, however, belonged to the community of one marriage, and some to another; none, [121] however, to the third marriage, so far as ■ the record discloses. The will of H. -H. Massey was duly probated, and M. L. Womack qualified as administrator of the estate of said Massey with the will annexed. James Massey, son of the first wife, refused to accept under the will of his father, H. H. Massey, and brought suit in the district court of Burleson county against M. D. Womack, administrator, Fannie Massey, the third wife of H. H. Massey, deceased, and all the children of the second and third marriages for such portion of the entire estate, real and personal, held by his father at the time of his death, as belonged to the estate of his mother, Jane, the first wife of said H. H. Massey. This suit was styled James F. Massey v. M. L. Womack et al., No. 2547, and is referred to hereinafter as suit No. 2547. A decree was entered in said suit No. 2547, on the 20th day of November, 1895, adjudging to James F: Massey one-fourth of all of said property, and to the 'administrator, Womack, and the other defendants, as heirs of H. H. Massey, deceased, the remaining three-fourths of said property. The court also appointed commissioners to partition said property in accordance with said decree, setting aside to James Massey a specific one-fourth thereof, and to the defendants Womack and others in bulk the remaining three-fourths thereof. Thereafter said commissioners made partition o'f said land and made their report of said partition to the court, which was by the court approved. In the decree approving said report the following language appears: “And it further appearing to the court that said commissioners have set apart to the defendant heirs the 178% acres, a part of the S. C. Bobertson league, 40 acres, a part of the N. W. Thornton survey, and 160 acres, a part of the Edward Hill survey, all in Burle-son county, Tex., it is therefore ordered, adjudged, and decreed that all of the rights, title, and interest of the said Jamos F. Massey in and to that property so set apart to the defendants be and the same is hereby divested out of him and vested in the defendants forever,” etc. This judgment became final and has never been appealed from, nor otherwise vacated. Thereafter, and while M. L. Womack was administering the estate of said II. H. Massey, as such administrator, joined by James Massey, guardian of the minors, Mack Massey, Homan Massey, Gus Massey, and Cassandra Massey, four of the children of Frances, the second wife of H. H. Massey, brought suit in the district court of Burleson county against Eugene, George, and Andrew Massey, three other children of said second wife, for a partition of the 178% acres of land in controversy in this suit. This suit was styled M. L. Womack et al. v. Eugene Massey et al., No. 2596, and will be referred to hereinafter as suit No. 2596. It is alleged in the petition in said suit No.. 2596 that the estate of H. H. Massey was the owner of a one-half undivided interest in said 178% acres of land and that the other parties, plaintiffs and defendants, were the owners of the' other one-half thereof; each owning an equal portion thereof. The suit was for partition of said 178% acres and for commissioners of partition. The court sustained the allegations of the petition, and relief as prayed for upon a finding that said land was the community property of H. H. Massey, deceased, and his second wife, and therefore one-half undivided interest therein was in the possession of M. L. Womack, as administrator of the estate of I-I. H. Massey, and that the other one-half was owned by the children of the second wife, who were parties to said suit. Judgment was accordingly rendered, and commissioners of partition appointed to partition the land, who later reportea that said land was incapable of fair and equitable partition in kind. Said. report was approved, and later one E. B. Bell was appointed special commissioner to sell said land for the purpose of making a partition of the proceeds arising from such sale among those entitled thereto. The land was sold by Bell on the 11th day of December, 1896, to one G. W. Price for $1,000. Bell made a report of such sale to the court, which was by the court approved, and upon proper orders of the court Bell, as such special commissioner, by proper deed, conveyed the land to G. W. Price. The proceeds of such sale were distributed in accordance with the decree of the court, one-half thereof being paid to M. L. Womack, as administrator of the estate of H. H. Massey. On the 23d day of March, 1898, M. L. Wo-mack, administrator, filed his final account and showing in the probate court of Burle-son county and asked for his discharge, and on the 20th day of August, 1898, the court approved said final account and showing, discharged the administrator, and closed the administration of said estate. It may be here stated that the only answer filed by defendants in suit No. 2547, James Massey v. M. L. Womack, Administrator, et al., was a general demurrer, and that there was no answer filed in suit No. 2596, so far as shown by the record. Mrs. Fannie Massey, the third and last wife of H. H. Massey, deceased, the mother of plaintiffs Ethel Boese, Iiuth Vinton, and Mart Massey, was put in possession of 100 acres' out of the 160 acres of land, a part of the Ed Hill survey, owned and occupied by said Massey and family, at the time of his death, as the homestead of herself and children. She was also paid out of the effects of the estate of H. H. Massey the sum of $350, together with other property delivered to her. Mrs. Fannie Massey resided upon her said homestead within a few miles of the tract of land in controversy in December, 1896, at the time Special Commissioner Bell sold and conveyed said land to G. W. Price, and continued to so reside until her death in 1902. [122] G. W. Price bad bis said deed recorded shortly after bis purchase in December, 1896, and be and those bolding under him, down to and including the present owner, O. V. Massey, have since said purchase held and used the same continuously to the date of this suit, on November 19, 1914, and have paid all taxes due thereon. Whatever title G. W. Price had to the land in controversy passed by mesne conveyances to, and is now in, ap-pellee O. Y. Massey. On November 19, 1914, appellants Mart Massey, Ruth Massey Vinton, joined pro for-ma by her husband, Claude Vinton, and Ethel Massey Boese, joined pro forma by her husband, R. B. Boese, brought this suit against O. V. Massey, the present owner of the land in controversy, and others not necessary to mention, to recover a one-half undivided interest therein, upon the theory: That by the terms of the will of H. H. Massey, deceased, one-half undivided interest therein passed to their mother, Fannie Massey, during her life,, and that by the terms of said will the fee to said one-half interest passed to plaintiffs herein Ruth Vinton, Ethel Boese, and Mart Massey. That in cause No. 2547 the court construed the will of said Massey as now construed by plaintiffs, and by a decree in said cause adjudged one-half of the land in question to be the property of plaintiffs. That M. L. Womack, administrator of the estate of H. H. Massey with will annexed, had no authority to bring, nor the district court of Burleson county to entertain and try, said cause No. 2596, and grant the relief prayed for, as was done in said cause, because: First, at the time said suit was filed and disposed of in said district court an administration of the estate of H. H. Massey was pending in the probate court of Bur-leson county, and that said court had exclusive jurisdiction of said estate and was the only court which had authority to order the sale of property belonging to said estate for any purpose, and that, as said district court had no authority to try said cause No. 2596 and to order the sale of said land as it did do, the sale made by E. B. Bell, special commissioner, by order of said district court, was and is void and of no force and effect, and therefore the deed of said Bell to G. W. Price did not have the effect to convey the title to said land to said Price; second,, that as plaintiffs were not parties to suit No. 2596, and as they were the owners of an undivided one-half interest in said lands under the will of X-I. H. Massey and also under the decree in cause No. 2547, the sale made under the decree in cause No. 2596, if otherwise valid, did not have the legal effect to divest plaintiffs of their title to said land, and that they are therefore still the owners thereof. Defendants answered plaintiffs’ allegations by specially pleading the facts set out in the preliminary statement herein, and further specially pleading that the title to the whole of the tract of land in controversy was in defendant O. V. Massey, and they further pleaded the three, five, and ten year statutes of limitation in bar of plaintiffs’ right to recover in this suit. Plaintiffs by supplemental petition pleaded their disabilities as minors in avoidance of defendants’ plea of limitation. The case was submitted to the court without a jury, who upon the pleadings and evidence found every issue in favor of defendants, and rendered judgment that plaintiffs take nothing by their suit and that defendants recover of plaintiffs all costs by them incurred. From this judgment, R. L. Boese, husband of Ethel Boese, alone has appealed. It is apparent, from the brief filed in this court by counsel who represented the plaintiffs in the trial court, that they are laboring under the impression that all of the plaintiffs have perfected their appeal to this court. But such, we think, is not true. The only appeal bond found in the record is one executed by R. E. Boese alone, as principal, and Thos. O. Hall, M. G. Cox, and U. S. Hearrell, as sureties, which, after an attempt to describe the judgment rendered by the court, reads as follows: “Now, therefore, we, R. L. Boese, as principal, and Thos. C. Hall and M. G. Cox and U. S. Hearrell, as sureties, acknowledge ourselves bound to pay to Mrs. Nettie Massey Parkhill and other defendants (appellees herein) in the sum of two hundred and no/100 dollars; conditioned, however, that the said Ethel Boese and other plaintiffs (appellants herein) shall prosecute their appeal with effect, and shall pay all costs which have accrued in the court below and which may accrue, in the Court of Civil Appeals and the Supreme Court. “Witness our hands this the 26th day of November, A. D. 1915. R. L. Boese, Principal. Thos. C. Hall, M. G. Cox, U. S. Hearrell, Sureties.” It is apparent from the bond above mentioned that it is not an appeal bond executed by any one except R. L. Boese, as principal, and that he is the only one of the plaintiffs in the court below who has perfected an appeal to this court in this case. The pleadings of plaintiff and the undisputed evidence show that appellant R. L. Boese has no interest in the subject-matter of the litigation, except as the husband of his wife, Ethel Boese, and that he was joined with his wife in the suit only for the purpose of meeting the requirements of the law that in suits by a married woman she . shall be joined by her husband. Appellant, therefore is only a nominal party, -without any interest in his own right in the subject-matter of the litigation, and could not appeal. In the case of Hawley v. Whitaker, 33 S. W. 688, presenting practically the same proposition as here presented, it is said: “It appears from the foregoing facts that Hawley was a mere nominal party to the suit, as such interest in the land as was acquired by the conveyance from Cummings to Hawley was really for the benefit of the iron company. It [123] follows that, as Hawley had no real interest in the land, he is not injured by the judgment of the court below. Hawley having no real interest in the land, and the iron company being a party to this suit, and not having appealed, wo will not review the action of the court at the instance of appellant Hawley.” This cause being before this court solely upon the appeal of R. E. Boese, a nominal party only, and it appearing that Ethel Boese, Ruth Vinton, and Mart Massey, who are the parties for whose benefit the suit was brought, were parties to the suit and not appealing, we will not review the action of the trial court at the instance of appellant R. L. Boese. The judgment of the trial court is affirmed. Affirmed.