Pemberton v. Leatherwood

GRISSOM, Chief Justice. H. L. Pemberton and others filed this suit in the County Court of Erath County to partition the residue of the estate of Henry O. Pemberton, deceased. Plaintiffs alleged they were all of his heirs and that they were each entitled to a one-fifth interest in said estate. A. C. Leatherwood and others were defendants. Plaintiffs alleged that defendants had or claimed some interest in the properties belonging to the estate “which claim or interest therein, if any, was acquired while administration was pending on said estate and subject to said administration proceedings.” Plaintiffs also alleged that the nature of defendants’ interest or claims was unknown to plaintiffs but defendants were made defendants so that they could set up the interests claimed by them. A. C. Leatherwood filed a plea to the jurisdiction of the court to partition the real estate in which he owned an undivided interest, describing four tracts. He alleged, and the evidence showed conclusively, that as to the third and fourth tracts mentioned in said plea he owned an undivided interest in said lands with Henry O. Pemberton in his lifetime and since his death he has owned same* jointly with said estate. He alleged that the county court ■had no jurisdiction to partition said land between the heirs of the estate and said co-owner, who had been a tenant in common with their ancestor. He alleged that the district cou'rt alone had jurisdiction to partition said land. The evidence showed, as he alleged, that A. C. Leatherwood acquired his interest in tracts one and two, mentioned in said plea to the jurisdiction, by purchasing the interest of some of the heirs during the administration of said estate. He alleged that his grantors to tracts one and two were estopped to seek partition in the county court by virtue ‘ of the execution of their deeds to him, which were warranty deeds to their interests in said specific tracts. A. C. Leatherwood was not an heir of deceased. He did not acquire his undivided interest in tracts three and four while the estate was being administered in the county court. He acquired same prior to Henry O. Pemberton’s death. The grantors to tracts one and two, in their deeds stated and alleged in their original petition that the interest of some of said grantors of A. C. Leatherwood was one-fourth and the interest of others one-sixth. In a supplemental petition they alleged that the interest of each of said ■heirs and grantors of A. C. Leatherwood was one-fifth. A. C. Leatherwood thereupon filed a supplemental plea to the jurisdiction of the county court in which he asserted that they had thereby raised an issue of title that the county court did not have jurisdiction to determine. See Tide Water Oil Co. v. Bond, 136 Tex. 127, 148 S.W.2d 193, 195. The county court overruled A. C. Leatherwood’s plea to the jurisdiction, partitioned the land and he appealed to the District Court. The District Court sustained his plea to the jurisdiction, rendered judgment that plaintiffs take nothing and they have appealed. The probate court did not have jurisdiction to partition the land of A. C. Leatherwood which he owned jointly with Henry O. Pemberton in his lifetime. As to said lands Leatherwood was a co-tenant with the estate and, of course, his interest therein was never a part of the estate and the probate court had no jurisdiction over it. Cyphers v. Birdwell, Tex.Civ.App., 32 S.W.2d 937, 940 writ ref.; Feliczak v. Kopycinski, Tex.Civ.App., 153 S.W.2d 329, 331; Murphey v. Murphey, Tex.Civ.App., 131 S.W.2d 158, 160; Simpson v. Booth, Tex.Civ.App., 163 S.W.2d 1080, 1085; 32 Tex.Jur., 179. See also Simpson-Fell Oil Co. v. Stanolind Oil & Gas Co., 136 Tex. 158, 166, 125 S.W.2d 263, 267, 146 S.W.2d 723, 724; Ward v. Hinkle, 117 Tex. 566, 8 S.W.2d 641, 645; Thomas v. Southwestern Settlement & Development Co., 132 Tex. [492] 413, 123 S.W.2d 290, 297. If the .county, court did not have jurisdiction to partition the land owned by A. C. .Leatherwood as a. co-tenant with the estate, the district court on appeal had no su'ch jurisdiction and the district court was correct in sustaining the plea to the jurisdiction. •The district court sustained the plea and rendered judgment that plaintiffs take nothing. The judgment is reformed so that the case is dismissed for want of. jurisdiction and the judgment ordered certified to the county court for observance. The judgment is reformed and affirmed.