Walker v. Howard

Citations

• 34 Tex. 478

Syllabus

<p>1. Trespass to try title may be maintained in the courts of this State upon a merely equitable title.</p> <p>2. Errors in the original form of action or in the,misjoinder or nonjoinder of . parties may be corrected by amendment.</p> <p>3. In this case the court quotes with approval the rulings in Henderson v. Kissam, 8 Texas, and in Smith v. McGaughey,-13 Texas, on the subject of amendments, but adds that repugnance in pleading cannot be tolerated, and commends the practice of imposing terms upon parties who introduce substantial changes in their pleadings.</p> <p>4. In a suit against a surviving husband’s vendees, by the heirs of his deceased wife, to recover her interest in community real estate, evidence by the defendants that community debts were outstanding after, the death of the wife would be competent in connection with further proof that the husband sold the land and applied its proceeds in liquidation of such debts; but, in the absence of such further proof, it seems that it was not error to exclude evidence of the indebtedness.</p> <p>5- In an action for partition the plaintiff need not deraign his title beyond the common source under which both he and the defendant claims.</p> <p>6.. A defendant in a suit for partition is estopped in pais from denying the . title of his vendor, which he had accepted, and under which he obtained and held possession of the land. But he might set up an outstanding title, if he showed that he claimed under it, and not under the title relied on by the plaintiif.</p> <p>7. The legal rights of a surviving husband in community real estate could not be divested by the last will and testament of his wife ; and it is not clear that an administration upon the estate of a deceased wife could affect her surviving husband’s-power over her portion of the community property.</p> <p>8. Nine years having elapsed after the death of a married woman before her surviving husband sold and made full conveyance of land pertaining to their comm