Emma and B. L. Aycock v. William H. Kimbrough et al., 71 Tex. 330

Maltbie, Judge. It is insisted that the court erred in not sustaining Aycock’s general demurrer to the defendant A. P. Morris’s answer—said answer asserting that the one hundred, acres of land had been allotted to Mrs. Perkins, Kimbrough and Price in a parol partition of George Morris’s estate among his heirs, in the year 1877, the two former being married women. It has been long settled that a parol partition of lands among joint owners or tenants in common is not within the statute of frauds. (Houston v. Sneed, 15 Texas, 309; George v. Thomas, 16 Texas, 89; Stewart v.

Baker, 17 Texas, 419.) That some of the parties to the partition are married women is not believed to be a valid objection to such partition, or at all events that it would not be void and subject to a collateral attack on that account.

Married women, it is true, can only convey their real estate in the way pointed out by the statute; but a partition of lands is neither within the statute of frauds nor the statute regulating the transfer of real estate of a married woman—a parol partition being a division, but in no sense a conveyance of lands, and only vesting the equitable title of the respective shares in the tenants to whom allotted; the legal title remaining as before the partition, but held in trust for the benefit of those holding the equitable interest. There was no error in overruling the demurrer.

It is claimed that there was error in the judgment of the court partitioning the lands belonging to George Morris’s estate among his heirs, on account of the contradictory allegations in the petition of plaintiffs and the answer of the defendant A. P. Morris—the petition alleging a partition by mutual deeds in 1878, and the answer alleging a parol partition in 1877. It not being apparent that said decree, if erroneous, could affect appellants—it having been determined in this suit that they had no interest in the land partitioned—we are of opinion that they can not be heard to complain.

It is next asserted that the court erred in not finding that the suit, as against appellants, was collusive and fraudulent, and brought and conducted to defeat the collection of their debt. If there was a parol partition of the land in the year 1877, in which the one hundred acre tract was allotted to the sisters of A. P.

Morris, said partition being prior to the levy of appellants’ execution on the twentieth day of November, 1878, their title being equitable and not within the operation of the registration laws, was not subject to levy and sale under appellants’ execution; and there could be no fraud in resisting appellants’ attempt to subject their land to the payment of A. P. Morris’s debt.

The court found that the partition was made in 1877, as claimed, and that there was a written partition in 1879 confirming the verbal partition, which the court in this case again approved and confirmed; and there being sufficient evidence to authorize the finding, though there may have also been circumstances calculated to throw suspicion upon some of the evidence upon which the finding was predicated, under repeated decisions of the Supreme Court, the finding will not be disturbed, there being nothing in the record inconsistent with its truth.

The last complaint is that “the court erred in not holding the defendant A. P. Morris and the plaintiffs estopped by the judgment rendered at the January term, 1885, against the plaintiffs and in favor of appellants, plaintiffs having abandoned the suit before the rendition of said judgment, and the judgment having been set aside solely on the motion of A. P. Morris, he never having before that time appeared in the case, and the attorneys that had before that time represented the plaintiffs then appearing for A. P. Morris, and that A. P.

Morris, having been silent for six years, should not then be permitted to come into court and reopen the case upon a new issue.” It was no doubt a very great irregularity for the court to permit A. P. Morris to appear under the circumstances of the case and favorably entertain his motion for a new trial. Why it was done the record fails to disclose. But it is undoubtedly the law in Texas that district courts in civil matters have authority to set aside all orders, judgments- and decrees of the term when made either with or without a motion.

Having this complete authority over its records, the setting aside judgments or the granting of new trials, whether rightfully or not, can not estop the parties thereto from again litigating the question involved, nor could the action of the court in an appeal be held to be error, as no judgment can be appealed from unless it is final. There being no error in the record of which appellants cam 'complain, we are of opinion that the judgment should be affirmed. Affirmed. Opinion adopted November 18, 1887. Willie. Chief Justice,