Miller v. Fenton

WILLSON, C. J. (after stating the facts as above). The judgment is fundamentally wrong, because not warranted by either Mrs. Fenton’s pleadings or the facts found by the trial court. [1,2] To entitle her to recover, as she did, Mrs. Fenton must have alleged, and she did not, either that appellant had wrongfully deprived her of the possession of the property, or that he then wrongfully withheld possession thereof from her. 14 Cyc. 258, 265; 34 Cyc. 1386, 1464 ; 38 Cyc. 2044, 2068. For anything to the contrary appearing in the pleadings, appellant was never in possession of the property, and Mrs. Fenton was herself in possession thereof at the time she commenced her suit. The general demurrer in appellant’s answer, if called to the attention of the court, should have been sustained; and if it was not called to his attention, the court should of his own motion have held that the petition did not state a cause of action. [3, 4] As shown in the statement above, the court found that Mrs. Fenton repurchased of J. R. Fenton the half interest she sold him in the property, agreeing to pay him therefor $400; that of that amount she paid him $247 with money earned by operating the mill and gin; and that the remainder of said $400 remained unpaid at the date of the trial. The effect of those findings was to show that the half interest in the property owned by J. R. Fenton became a part of the community estate between Mrs. Fenton and her husband, R. Fenton. Yernon’s Statutes, arts. 4621, 4622; Bank v. McWhorter, 179 S. W. 1147; Epperson v. Jones, 65 Tex. 425; Short v. Short, 12 Tex. Civ. App. 86, 33 S. W. 682. Such being the legal effect of the facts found by the court, of course he erred when he rendered judgment in favor of Mrs. Fenton for all the property. According to those findings, she at most owned only an undivided one-half interest in it. Assuming the facts to be as the court found them to be, Mrs. Fen-ton’s suit should not have been for the property, but should, instead, have been for a partition thereof. [5] The judgment will be reversed, and the cause will be remanded for such further proceedings in the court below as the facts warrant. With reference to such proceedings attention is called to the fact that it does not affirmatively appear from the pleadings of the parties or the findings of the court whether the ginhouse in controversy was personal or real property. 19 Cyc. 1036, 1047. The inference from the description of the property as a “house” probably is that it was real property, in which event, of course, the county court was without power to hear and determine its ownership, or to partition it. Footnotes [1] (SxaFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes