
    William Caruth v. D. B. Grigsby et al.
    (Case No. 4554.)
    1. Practice.—A party will not he sustained when he complains that the judge, in his charge to the jury, assumed as true the existence of a state of facts not contradicted by evidence, and which was sustained by testimony introduced by himself.
    2. Grant — Community property.— Land granted by the republic to one because of his being a married man, was the community property of his wife and of himself, though the grant bore date after her death; one-half interest therein descended to her heirs, subject to the payment of community debts.
    3. Notice — Innocent purchaser.— A party is charged with notice of every fact recited in the chain of title through which his right to land is claimed.
    4. Conclusiveness of judgment.— A party is concluded by a judgment in the right only in which he sues or is sued.
    5. Partition — Judgment.—An administration was begun upon the estate of the husband before the wife’s death. There was no necessity for sale, and no sale made to pay community debts. After the death of the wife a partition was made of the estate of the deceased husband, on an application which recited that the minor heir of the deceased wife was entitled to an interest, and who was not represented by a legally appointed guardian. In the final partition, this heir’s interest in community lands inherited from the mother was ignored, and the partition made purported to be that of the deceased husband’s estate. Held,
    
    (1) The heir of the wife was not concluded by the proceedings and judgment of the probate court.
    6. Practice — Parties.— An objection based on the want of proper parties comes too late when made for the first time in the supreme court.
    Appeal from Dallas. Tried below before A. S. Lathrop, special judge.
    Suit of trespass to try title, and for partition, brought by D. B. Grigsby and the appellees, Swindle and his wife, Maria Louisa Swindle, against the appellant, William Oaruth, and a number of other persons.
    On the 22d of October, 1881, plaintiffs filed an amended original petition, and on the same day filed their first supplemental petition.
    The plaintiffs, Maria Louisa Swindle and her husband, sought to recover an undivided three-eighteenths, and the plaintiff, D. B. Grigsby, an undivided two-eighteenths of the James Sylvester six hundred and forty acre survey, in Dallas county, and a certain portion — described by metes and bounds — of the John Grigsby league and labor survey in the same county.
    The petition, as to the five-eighteenths sought to be recovered, was in the usual form of an action of trespass to try title, and alleged that defendants were the owners of the remaining thirteen-eighteenths of the said surveys, and asked for partition between plaintiffs and defendants.
    
      In their amended original petition, plaintiffs further alleged that, if any of the defendants claimed to be owners, in severalty, of any particular portion of the land, and desired a separate trial as to the part so claimed by them, plaintiffs were willing that they be granted the severance, provided it could be done without prejudice to plaintiffs’ rights, and provided the defendants so desiring a separate trial would set out by metes and bounds the particular part so claimed by him. Plaintiffs further alleged that in the partition sought by them they were willing for the court to set out to them the portion to which they were entitled out of each of the several portions which might be so separately claimed and held by defendants, provided it could be done without prejudice to plaintiffs’ rights.
    Quite a number of defendants, among them appellant William Caruth, were, upon motion, each, by'the court, granted a severance, and the judgment appealed from was a judgment rendered upon the trial had between plaintiffs and defendant William Caruth alone.
    The charactér of plaintiffs’ title was not alleged in their pleadings, but, as developed by the testimony, was as follows:
    John Grigsby and Louisa Grigsby ivere married in the state of Illinois, and emigrated to Texas in the year 1835, and settled in Houston county, and lived there until the time of their death.
    The part of Houston county in which they lived is now Anderson county, Texas.
    John Grigsby died in 1841. His wife, Louisa, survived him, and afterwards married Balis Edens.
    John Grigsby had only two children by his said wife Louisa, viz.: a daughter, Emeline, now dead, and the plaintiff, D. B. Grigsby, who was born in 1841.
    John Grigsby’s widow, who married Balis Edens, died in 1843.
    ' The only issue of this marriage was one daughter, Maria Louisa Edens, born in 1843, who was the plaintiff Maria Louisa Swindle, she having married C. C. Swindle.
    The land claimed by the defendant was one hundred and sixty-eight acres of the John Grigsby league and labor survey, which survey was the community property of John Grigsby and his wife, Louisa Grigsby, having been granted to him by the republic of Texas as his headright.
    Louisa Edens (formerly Louisa Grigsby) had only three children, viz., Emeline Grigsby and the plaintiffs D. B. Grigsby and Maria Louisa Swindle; and upon her death in 1843, her undivided half of said league and labor descended to her three children.
    
      Plaintiff Maria Louisa Swindle thus inherited, as an heir of her mother, one-third of one-half, or three-eighteenths of the whole land, and for this she sued.
    The plaintiff D. B. Grigsby also inherited three-eighteenths of said land as an heir of his mother, and, in addition to this, he inherited his proportionate part as an heir of his father, John Grigsby.
    In 1848 an attempted partition of the whole of the land among the heirs of John Grigsby was had in the course of administration upon the estate of John Grigsby, and the whole of the land ivas divided equally among nine persons as the children of Grigsby, giving to each one two-eighteenths of the same as an heir of John Grigsby, and ignoring the rights of the heirs of Louisa Edens (the widow of John Grigsby). In this attempted partition, two-eighteenths of the land was set apart for plaintiff D. B. Grigsby, but nothing for the plaintiff Maria Louisa Swindle.
    At the date of the attempted partition, D. B. Grigsby was about seven years old, and Maria Louisa Swindle about five years old.
    After D. B. Grigsby arrived of age, he sold the tract of land which had been set apart for him.
    All of the league and labor except that part described in plaintiffs’ petition had been sold by John Grigsby during the life-time of himself and wife, and it was only his unsold part which was embraced in the attempted partition.
    The defendant Caruth disclaimed any interest in any of the lands described in plaintiffs’ petition, except one hundred and sixty-eight acres described by metes and bounds out of the John Grigsby league and labor.
    His defense, as pleaded, was;
    1. A general denial.
    2. A plea that plaintiffs ought not to sue after so long a time.
    3. A judgment of the probate court of Anderson county partitioning the land sued for herein between the heirs of John Grigsby, deceased, to which suit and judgment appellants "were parties.
    4. That D. B. Grigsby accepted the land allotted to him by the said judgment of partition, and sold the same, referring in his deeds to the partition as the source of his title to the land conveyed to him.
    o. The statutes of limitation of three, five and ten years.
    6. Innocent purchaser in good faith.
    Plaintiffs, in their first supplemental petition, alleged, in reply to defendants’ plea of statute of limitations, in substance, that they, at the time their cause of action accrued, were minors, and that sufficient time had not elapsed since the removal of their disabilities to bar them. The land claimed by defendant was no part of the land which had been set apart to D. B. Grigsby, under the aforesaid attempted partition, and which had been sold by him.
    The court, in-its charge to the jury, instructed them: “ In the year 1841, administration was opened on the estate of John Grigsby, in Houston county, Texas, the place of his residence and death, and, during said administration the said Louisa Grigsby intermarried with Balis Edens, and she died, in 1843, leaving three children, two of whom are plaintiffs in this suit, viz., Daniel B. Grigsby and Maria Louisa Edens, now Maria Louisa Swindle, who were her heirs at law, each inheriting one-third of her estate.”
    The proceedings for the partition of the lands in controversy was filed by Balis Edens, administrator of the estate of John Grigsby, deceased, to the November term, A. D. 1847, of the probate court of Houston county, November 9,1847, and álleged that the representatives of Louisa Grigsby, deceased, who was the surviving marital partner of John Grigsby, deceased, were entitled to one-half the estate, and the children of said John Grigsby, deceased, nine in number, including D. B. Grigsby, were entitled to the other half; that Louisa Grigsby left surviving her, children, Maria Louisa Edens, Emeline Grigsby and Daniel B. Grigsby, wTho were entitled to the one-half of said estate; that he, the said Edens, is the natural guardian of Maria Louisa Edens, and legally appointed guardian of said Emeline and Daniel B. Grigsby; alleged that some of the heirs had received advancements; praying for partition, etc.
    On application of the heirs of Grigsby, the proceedings pending in regard to the administration were transferred to Anderson county.
    At the March term, A. D. 1848, of the probate court of Anderson county, at the instance of Balis Edens, administrator of the estate of John Grigsby, deceased, and husband of ¡Ruth Ann Edens, formerly Grigsby, a decree was entered, upon a hearing of the facts, adjudging the land to be partitioned between the heirs of John Grigsby, deceased, and, after naming the commissioners of partition, directed the real estate belonging to the estate of John Grigsby, deceased, to wit, all the real estate situate in Dallas county, to be pointed out by the administrator or heirs of said decedent.
    At the July term, A. D. 1848, the commissioners of partition submitted their report, partitioning all the lands in Dallas county, and the report of the commissioners was approved and ordered of record, and the lands allotted, etc., and the administrator was ordered to convey the land to the parties as allotted by the commissioners.
    It was agreed, in the proceedings for partition, that Louisa Grigsby was properly chargeable with four hundred and seventy dollars’ worth of property.
    The heirs of Louisa Grigsby were represented in the proceedings by no legally appointed guardian.
    
      Stemmons & Field, for appellant.
    
      Richard Morgan and Jeff. Word, Jr., for appellants.
    Appellants’ counsel filed an able and lengthy argument, relying on the following authorities:
    I. As to character and effect of judgment. Merle v. Andrews and Lynch v. Baxter, 4 Tex.; Cannon v. Hemphill and Hartwell v. Jackson, 7 Tex.; Booth v. Todd, 8 Tex.; Townsend v. Munger, 9 Tex.; Jones v. Jones and Dancy v. Stricklinge, 15 Tex.; Ellis v. Rhone and McFarland v. Hall, 17 Tex.; Soye v. McCallister and Soye v. Maverick, 18 Tex.; Berry v. Love, 22 Tex.; Thompson v. Cragg and Millican v. Millican, 24 Tex.; Withers v. Patterson, 27 Tex.; Page v. Arnim, 29 Tex.; Wood v. Davis, 37 Tex.; Simmons v. Blanchard, 46 Tex.; Johnson v. Harrison and Teal v. Terrell, 42 Tex.; Guilford v. Love, 49 Tex.; Steele v. Renn, 50 Tex.; Tieman v. Robson, 52 Tex.; McGowen v. Zimpleman, 53 Tex.; Murchison v. White, 54 Tex.; Freeman on Judgments; Freeman on Cotenancy and Partition; Grice v. Randa11, 23 Vt.; Feather v. Strohoecker, 3 Penn.; Bourig’s Appeal, 8 Watts (Penn.); Snyder’s Appeal, 36 Pa. St.; Dresher v. Allentown Water Co., 52 Pa. St.; Sumner v. Parker, 7 Mass.; Shields v. Ashley, 16 Mo.
    II. As to limitation. De Cordova v. Galveston, 4 Tex.; Paschal v. Perez, 7 Tex.; Bender v. Crawford, 33 Tex.; Bentinck v. Franklin, 38 Tex.; Wood v. Welder, 42 Tex.; Riddle v. Bickerstaff, 50 Tex.; Lewis v. Davidson, 51 Tex.; French v. Strumberg, 52 Tex.; Mc-Gregor v. Goldammer, Texas Law Journal, voL 3, p. 476; Cooley’s Constitutional Limitations; Dash v. Van Kleeck, 7 Johns. (N. Y.); Brigham v. Bigelow, 12 Metcalf (Mass.).
    III. As to estoppel against D. B. Grigsby. Dunham v. Chatham, 21 Tex.; Millican v. Millican, 24 Tex.; Burleson v. Burleson and Scoby v. Sweatt, 28 Tex.; Page v. Arnim, 29 Tex.; Thomas v. Groesbeck, 40 Tex.; Fitzgerald v. Turner, 43 Tex.; Bigelow on Estoppel.
   Bonner, Associate Justice.

This case comes before us on the appeal of William Caruth. We have carefully considered such of the assigned errors as are believed to be necessary to a proper disposition of the case as presented.

The first three alleged errors object to so much of the charge of the court to the jury in which it is assumed that the plaintiffs Daniel B. Grigsby and Maria Louisa Swindle were two of the- children of Louisa Grigsby, deceased, born after her marriage with John Grigsby; that said plaintiffs were the heirs at law of said Louisa Grigsby, and as such, each entitled to one-third of her estate; and that none of the lands in .controversy were needed to pay the community debts of John and Louisa Grigsby.

All the above were undisputed facts in the case, and appeared from the proceedings of the probate courts of Houston and Anderson counties, introduced by appellant Oaruth himself. In such case it is not a charge upon the weight of evidence for the court to assume the existence of the facts. Hedgepeth v. Robertson, 18 Tex., 871.

The fifth assigned error is that the court refused to give certain special charges asked by defendant.

So many of these special charges as are considered necessary to be disposed of in this connection are those numbered 1, 2, 6 and 8.

The first reads: “ If the jury believe, from the evidence, that the marriage relation existing between John Grigsby and Louisa Grigsby was terminated prior to the date of the issuance of the patent to said John Grigsby, the presumption is that the land embraced by said patent was the separate property of John Grigsby, and this being a legal presumption, can only be changed by clear and satisfactory proof.”

The instruction given by the court to the jury in the general charge on this point was, we think, under the evidence, the law of the case. It was as follows: “If you believe, from the evidence, that the grant of said league and labor of land, although said grant is dated after the death of said John Grigsby, was made by the republic of Texas for the reason that said Grigsby was a married man, and that Louisa Grigsby was his wife, you are instructed that said land wras the common property of John Grigsby and his wife, Louisa Grigsby; and if the same was undisposed of at the date of the death of John Grigsby in 184:1, the undivided one-half of said land belonged to the heirs of John Grigsby, and the other half to his widow, Louisa Grigsby, subject only to the payment of debts contracted during the existence of the marriage.”

The second, sixth and eighth special charges asked and refused will be considered together, and are as follows:

2d. “ And though the jury may believe, from the evidence, that the proof adduced upon the trial of this cause is sufficient to rebut the legal presumption arising from the issuance of the patent to. John Grigsby, then they should find for the defendant, unless they further find that when he acquired the property he had notice of the facts constituting this the community property of John and Louisa Grigsby.”

6th. “ If the jury believe, from the evidence, that the probate court of Anderson county, by its judgment, determined that the lands embraced in the partition proceedings were the lands of-John Grigsby, deceased, and that, under the said judgment and the title flowing therefrom, the defendant purchased the lands sued for herein, and paid the fair value of the said lands, the law would protect him in the said purchase of the lands so made.”

8th. “ If the jury believe, from the evidence, that the defendant Caruth purchased the lands in good faith, paid a valuable consideration therefor, without notice of plaintiffs’ claim thereto, they will find for the defendant.”

Under repeated decisions of this court, the interest of the estate of a deceased wife in the community lands is equal to that of the husband, though the title may be in his name, subject only to the control of himself or his administrator for the payment of community debts; and a purchaser with notice of the interest of the deceased wife, from the husband or his administrator, when the sale is not made for this purpose, takes the title to the husband’s interest only. Hays v. Wright, 10 Tex., 130; Johnson v. Harrison, 48 Tex., 257; Yancy v. Batte, id., 46.

In this case, the chain of title under which defendant Caruth claims shows upon its face that the land was community property of John Grigsby and his wife, Louisa, the mother of plaintiffs; that it was not necessary to sell the same for the payment of debts; and that the deed of partition made by the administrator conveyed John Grigsby’s interest only. Appellant Oariith was charged with a knowledge of these facts patent upon the face of his title, and estopped from denying the same.

The decisive question in the case arises under the fourth assigned error, which relates to the legal effect of the partition proceeding had in the probate courts of Houston and Anderson counties.

It is contended on behalf of appellant Caruth, who claims under said partition proceeding, that it was binding on plaintiff Maria Louisa Swindle, in the capacity of an heir of her mother’s estate, in which right she here sues, for the reason that she was a party thereto, and that her remedy, if aggrieved, was by a direct appeal from that judgment.

On the other hand, it is contended that she was thereby concluded as an heir of John Grigsby only, and not of her mother, in which latter right she was not before the probate court. It is further contended that the probate court, as then constituted, did not have jurisdiction, in an administration on John Grigsby’s estate, to partition that of Louisa Grigsby.

As unnecessary to this case, we pass by the last question, as to the jurisdiction of the probate court, and rest the decision upon the question whether it in fact or legal effect made partition of Louisa Grigsby’s estate.

It is an established general principle that a party is concluded by a judgment in the right only in which he sued or is sued.

In Thompson v. Cragg it was decided that a decree of the district court against children, £ as the heirs of their deceased father,’ * for specific performance of a bond given by the father for title to land, the community property of himself and wife, sold by him in 1837, after the death of his wife, does not affect the interest which the defendants have in the land as heirs of their mother.” 24 Tex., 582; Grice v. Randall, 23 Vt., 242.

The administration of John Grigsby’s estate was commenced in the probate court of Houston county at the July term, 1841, before the death of the wife, Louisa Grigsby, in 1843. It purported to be an administration on his estate alone, and did not involve the administration of the community property to the extent even that a sale of the same was necessary to pay community debts, as in Soye v. McCallister, 18 Tex., 99.

Although there is a recital in the petition for partition of the estate of John Grigsby, made to the probate court of Houston county on November 9, 1847, that the plaintiff in this suit, then a minor of tender years, and who was not represented by any legally appointed guardian, was entitled to an interest in the property in right of her mother, and the same was asked to be distributed, yet, in the final partition made in the probate court of Anderson county at the March term thereafter — to which county the administration had been removed,— her interest in the property, though much larger than many of the other distributees, was entirely ignored, and the distribution had among the children of John Grigsby only, she not being one of his children or his heir. The property partitioned purported to be that of John Grigsby’s estate, was pointed out by his administrators as such, and who under the order of the court made deeds to the several distributees in his capacity as such administrator only. The partition in its legal effect seems to have distributed to the children, and heirs of John Grigsby, in severalty, his undivided interest in the community property, which before that time had been held bv them in common.

Under all the facts and circumstances of the case, we are of opinion that, neither in fact nor in its legal effect, did the proceedings and judgment in the probate courts of Houston and Anderson counties partition the estate of Louisa Grigsby, through whom plaintiff Maria Louisa Swindle derives title to the land in controversy, and that she is not estopped thereby. The seventh and only remaining error necessary to be considered is, that “ The court erred in awarding a partition of the lands between plaintiff and defendant, because the heirs of Emeline Grigsby, who was a part owner of said land, were not before the court, or parties to the suit.”

It appears that Emeline Grigsby was dead, and that Bobert F. Aspley, her heir, was made a party defendant to the suit as originally brought, but that, as defendant William Caruth claimed a severance, Aspley was not represented as a party on the trial from which this appeal was taken. What his pleadings were, if any, does not appear from the record. It is affirmatively adjudged, however, in the court below, that the land in controversy was owned jointly by the plaintiff Maria Louisa Swindle and the defendant William Caruth, she owning one-sixth and he the remaining five-sixths, and partition ordered on this basis, and commissioners appointed. As thus presented by the record, we must presume that the interest of Emeline Grigsby had been vested into defendant Caruth, and that therefore all the parties in interest were before the court.

There being no apparent error in the judgment below, the same is affirmed.

Affirmed.

[Opinion delivered May 19, 1882.]

Ox Motion fob Bbhearixg.

Gould, Chief Justice.

In overruling the application for rehearing in this case and in Ho. 4571, it is only desired to add to what is said in the original opinion, a brief statement embracing an additional reason for refusing to reverse the judgment because of the alleged error, in proceeding to decree a partition of the lands sued for, when the record showed that necessary parties, viz., the heirs of Emeline Grigsby, were not before the court.

The brief of counsel for appellee, in a statement made under the assignment of error , covering this point, treated Robert F. Aspley as the heir erf Emeline Grigsby, and that statement not being contested, or at least nothing appearing in the brief of counsel of appellant indicating such contest, was treated by this court as having been acquiesced in, and as correct. From the statement made in the application for rehearing, it now appears that the record does not show that Robert F. Aspley is the heir of Emeline Grigsby. But, if it be conceded that this fact could avail appellant as fully as if the statement of counsel for appellee had been contested at the right time, and if it be further conceded that in the face of the statements in the petition admitting part ownership in Aspley, it could not be presumed that the interest of Emeline Grigsby was vested in appellant Caruth, still, although this would show that the court erred in proceeding to partition the land-, we are of opinion that the appellant, having failed to object to these proceeding in the court below, cannot make the objection for the first time in this court. The rule is that an objection for the want of parties comes too late when taken for the first time in the appellate court. Shelby v. Burtis, 18 Tex., 648; Hughes v. Roper, 42 Tex., 116.

Ho where in the record, not even in the motion for new trial, dbes it appear that appellant- Caruth objected to the partition on,the ground that there were other part owners not before the court. Had the objection been made and overruled, he would have had good cause to claim that so much of the decree as ordered partition should be reversed. That part of the judgment settling the question of title, however, would not have been affected by the error, and would have remained undisturbed. But as the objection to the want of proper parties was not made below, it cannot now avail appellant, even for the purpose of reversing that part of the judgment and decree awarding partition. ,

It is proper to notice that the title of the case as it appears on the docket does not indicate who is the true party appellant. As tried below, D. B. Grigsby and Maria Louisa Swindle were plaintiffs, and Win. .Caruth was defendant. Grigsby recovered nothing, and Maria Louisa Swindle recovered one-sixth of the premises. Caruth appealed from the judgment in her favor giving land to her. Caruth as appellant, and Maria Louisa Swindle as appellee, are the only parties to this appeal. The motion for rehearing is overruled.

Motion ovebbuled.

[Opinion delivered June 26, 1882.]  