Keener v. Moss

Citations

• 66 Tex. 181
• 18 S.W. 447
• 1886 Tex. LEXIS 476

Syllabus

<p>1. Partition—Commissioners—Statutes construed—Rents—Costs—Plaintiff instituted proceedings against R. and K. for partition of a certain lot, and prayed that IC. be required to account for plaintiff’s share of the rents and profits. R. answered admitting and adopting the allegations of the petition, and alleging that the property was not susceptible of partition, and asked that it be sold and the proceeds be divided between all parties. At the first term of the court, K. having made default, it was decreed that the lot be sold and the proceeds divided among all parties to the suit. Held:</p> <p>(1) The court could not order a sale of the lot until commissioners had reported that a fair and equitable division could not be made. (R. S., art. 3479.)</p> <p>(2) K. had the right to file objections to their report; the statute intended such objections to be filed after the report was returned, and the action of the court deprived K. of his right. (R. S., art. 3480.)</p> <p>(3) Judgment could not be rendered against K. for rents to accrue after the judgment, and down to its final execution.</p> <p>(4) Judgment could not be rendered against K. for costs accruing down to the entry of the decree fixing the interests of the parties, unless it appeared that he was contesting the rights of the other parties. (Johns v. Northcutt, 49 Tex., 444.)</p>