Spires v. Hoover

466 S.W.2d 344, 1971 Tex. App. LEXIS 2806

• Court: Court of Appeals of Texas
• Decided: April 14, 1971
• Docket: 6133
• Status: Published

Opinions

OPINION

RAMSEY, Chief Justice.

This is a suit for the partition of real estate brought by appellant against appellee. The trial court, sitting without a jury, and based on stipulations of the parties, denied the partition. We reverse and remand.

The parties have title jointly to real estate described as Tracts 27 and 28 of the J. M. Jett Survey No. 155 in the City of El Paso, Texas, which said property was acquired by a deed to them. Some two weeks after acquiring the property, the parties entered into what they term a “joint tenancy agreement”. About a year later appellant brought this suit to partition the property, and appellee defended on the premise that the joint tenancy agreement was a partition, or, in the alternative, that appellant, by such agreement, had contracted away her right to partition.

The agreement recites that the parties are joint owners of the described property, and that in accordance with the provisions of Section 46 of the Texas Probate Code, they desire to provide between themselves, their heirs, devisees, legatees, executors, administrators and personal representatives, that the interest of either joint owner who dies will survive to the surviving joint owner and will not descend to the heirs or legal representatives of such deceased joint owner. A consideration is then expressed, followed by the recitation that they do agree and contract as follows:

1. Upon the death of either of us, the interest of the joint owner who dies will survive to the surviving joint owner and will not descend to, or be vested in, the heirs, devisees or legal representatives of such deceased joint owner.

“2. We shall henceforth hold and own the real property above described in the same manner as joint tenants with right of survivorship as at common law.

“3. This agreement and contract shall be forever binding upon us and our respective heirs, legatees, devisees, executors, administrators and personal representatives.”

This type of agreement is permitted by Section 46 of the Texas Probate Code, V.A. T.S. The right of survivorship existed at common law, but by Section 46 (formerly Article 2580, Vernon’s Ann.C.S.), survivor-ship was abolished, but it is provided by such Section 46 that joint owners, by agreement in writing, may provide that the interest of any joint owner who dies may be made to survive to the surviving joint owner or owners.

As a general proposition, the law in this country favors partition, and both the civil and common law supported the proposition that no one should be compelled to hold property in common with another. 40 Am. Jur. § 4, p. 5.

Under Article 6082, Vernon’s Ann. C.S., and the decided cases, the right to partition between joint owners is absolute. But this right can be waived or contracted away. Davis v. Davis, Tex.Civ.App., 44 S.W.2d 447, (n. w. h.), quoting from 47 C.J. § 131, p.321:

“ ‘But while the general rule is that the right to partition is absolute, it is nevertheless well settled that co-tenants may validly agree to postpone partition and to hold the property together for a reasonable time, and those joining in the agreement and their successors in interest with notice thereof will be denied partition during the period specified, the agreement acting as an estoppel against the right to partition or as a waiver of such right. * * * ’

“Further in section 131, ibid: ‘The general rule is well settled that partition will not be granted at the suit of one in violation of his own agreement, the agreement, it is said, operating as an estoppel against the right to partition.’ ”

In addition to Davis v. Davis, supra, appellee has cited Warner v. Winn, Tex.Civ.App., 191 S.W.2d 747 (ref. n. r. e.), and Elrod v. Foster, Tex.Civ.App., 37 S.W.2d 339 (wr.ref.). These two cases hold, in effect, that an agreement against partition may be implied when the granting of such relief would destroy the estate sought to be partitioned. All three Texas cases cited, however, are clearly distinguishable in that the matter of survivorship is not involved in any of them. In each of the Texas cases cited, the express or implied agreement against partition was to accomplish a particular purpose. Rights of heirship would not be impaired. Survivorship is the principal distinguishing characteristic of joint tenancy at common law. Moynihan on Real Property, p. 130.

The authorities are consistent in denying partition when to do so would abrogate contractual rights. 44 Tex.Jur.2d § 5, p. 251; 132 A.L.R. 666. Such is not the situation here. Partition of lands means a division according to quantity and value. Zanderson v. Sullivan, 91 Tex. 499, 44 S.W. 484 (1898). There is no estate or contractual interest involved to be increased or diminished. The partitioning court can adjust the equities.

The citation quoted from 47 C.J. § 131, p. 321, supra, recognizes that co-tenants may agree to postpone partition for a “reasonable” time. “Reasonableness” will depend on the purpose for which the agreement is made. 132 A.L.R. 670-673. If, for the sake of argument, we were to assume an implied agreement in this case not to partition, there is no time limit imposed, either express or implied.

“Conversely, agreements for the perpetual forbearance of a suit for partition are contrary to the policy of the law which maintains the right of partition as an absolute right. Smith v. Brasseale (1925) 213 Ala. 387, 105 So. 199; Etnier v. Pascoe (1923) 275 Pa. 308, 119 A. 406.”

See, also, Roberts v. Jones (1940), 307 Mass. 504, 30 N.E.2d 392 ; 40 Am.Jur. § 5, p. 6; Haeussler v. Missouri Iron Co., 110 Mo. 188, 19 S.W. 75.

Appellant sought partitioning under the provisions of Art. 6082, V.A.C.S. This was stipulated by both parties. Even though appellant alleged that the partitioning should be by sale, such is not binding on the court, and a partitioning in kind may be decreed. Moore v. Blagge, 91 Tex. 151, 38 S.W. 979 (1897).

Contrary to the law in this country, at common law joint tenancy with rights of survivorship was favored. 20 Am.Jur.2d § 11, p. 102. All four elements for a valid joint tenancy are present here; they being, unities of interest, title, time and possession. The right of partition of a joint tenancy has been available since 1539 and is recognized as one of several methods of terminating the joint estate. 64 A.L.R.2d §§26 and 28, pp. 954-956; Moynihan on Real Property, pp. 131-132.

The agreement, by its own wording, provides nothing more nor less than that the property was to be held and owned by the parties as “joint tenants with right of survivorship as at common law”, and should be so construed.

We conclude, based on the foregoing, that the judgment of the trial court should be reversed and the cause remanded.