Opinion
No. 6129.
April 7, 1920.
Appeal from District Court, San Saba County; W. M. Allison, Special Judge.
On motion for rehearing. Motion granted judgment reversed, and cause remanded for new trial.
Walker Burleson, of San Saba, for appellants.
Rector Rector, of San Saba, for appellee.
Appellant brought suit for partition of two tracts of land. The petition was in the form prescribed by article 6097, Revised Statutes. Appellant, to sustain her cause of action, introduced a deed to J. C Churchwell, and proved that J. C. Churchwell was her father; that at the time of the execution of said deed he was the husband of de defendant. Mrs. Lela Churchwell; that J. C Churchwell was dead; that she was his only child; and that Mrs. Lela Churchwell was his surviving wife. This made a prima facie case, entitling her to have set aside to her one-half of the land in controversy.
Appellee was permitted, over objection of appellant, to offer evidence to the effect that her separate means.
Appellant objected to this testimony upon the ground that such fact was not pleaded which objection was overruled. Such testimony was admitted, and upon special issue the jury found that the land in controversy was the separate property of appellee. Appellee pleaded only a general denial and a plea of not guilty.
We are of the opinion that the court erred in admitting this testimony. A partition suit is based upon the theory of a common title, and not of disputed ownership. Sedgwick Wait on Trial of Land Title, § 166. Partition of land may be prayed for in a suit of trespass to try title, where it is alleged that the plaintiff owns an undivided interest in the land, and that the defendant has ejected him therefrom, and denies his right of possession. McLean v. Moore, 145 S.W. 1074. But in such case partition is only an incident of the main action, which is to try title. A partition suit in the ordinary form may be converted into a suit of trespass to try title by the defendant alleging title and right of possession in himself to the whole of the land in controversy. De La Vega v. League, 64 Tex. 205; Banks v. Blake, 143 S.W. 1184, 1185.
In the absence of such allegation the part of defendant, a partition suit is not a suit to try title. It is true that the plaintiff must make out a prima facie case. His allegation that he is the owner of the land means that he is the owner of the legal title, and he must introduce evidence to establish this fact.
A plea of not guilty has no place in a partition suit. A plea of general denial only puts the plaintiff on proof of facts necessary to make a prima facie case. Mims v. Mitchell, 1 Tex. 447; Townes on Pleading, 365, 366, and 370.
The only facts necessary for plaintiff herein to have made a prima facie case — that is, to show that she held the legal title to a one-half undivided interest in the land in controversy — was to prove the facts, which it is hereinbefore stated she did prove, and which were not denied by the defendant. The defendant could not, under a plea of general denial, show an equitable title in herself by proving that the deed offered in evidence was other than what it purported to be, or that it was, as defendant claimed, made to her husband in trust for her benefit. Wiedner v. Hell, 26 S.W. 781; Griffin v. McKinney, 25 Tex. Civ. App. 432, 62 S.W. 78.
Not only is such evidence not admissible in a partition suit, but it would not be admissible in trespass to try title. In such case, if the defendant desires to prove equities outside of those disclosed by a deed, such equities must be pleaded. Groesbeeck v. Crow, 85 Tex. 200, 20 S.W. 49; Matthews v. Moses, 21 Tex. Civ. App. 494, 52 S.W. 113; Rippetoe v. Dwyer, 49 Tex. 506; Robbins v. Hubbard, 108 S.W. 775; Peak v. Brinson, 71 Tex. 310, 11 S.W. 269; Moody v. Rowland, 100 Tex. 370, 99 S.W. 1112.
The evidence introduced by appellee in this case was in the nature of confession and avoidance; that is to say, that she, in effect said to the plaintiff, although everything that you have testified to is true, and these facts show a prima facie legal title in you, yet there are other facts which avoid the force of the deed under which you claim, and these other facts show an equitable title in me.
As shown by the authorities above cited such facts could not be proven unless the; were pleaded. The doctrine that defective pleadings may be cured by verdict and judgment, as stated in Ellis v. Howard, 35 Tex. Civ. App. 566. 80 S.W. 633, cited by appellee has no application to the facts of this case.
For the reason that the court erred in admitting testimony hereinbefore referred to we grant appellant's motion for rehearing, and reverse and remand this cause for a new trial.