partition-suit-land | real estate transactions and litigation | condemnation and eminent domain proceedings
SUIT FOR PARTITION OF REAL ESTATE JOINTLY OWNED BY MORE THAN ONE
PERSON OR ENTITY (undivided interests in land)
Unlike most other proceedings, a partition cause involves two final appealable judgments. Griffin v. Wolfe, 610 S.
W.2d 466, 466–67 (Tex. 1980) (per curiam); Ellis v. First City Nat’l Bank, 864 S.W.2d 555, 557 (Tex. App.—Tyler
1993, no writ). In the first judgment, the trial court: (1) determines the interests of each of the joint owners or
claimants in the real estate sought to be divided and decides all questions of law and equity affecting the title to
such land; (2) determines whether the property is susceptible to partition or the subject of a sale; and (3) appoints
commissioners to partition the property in accordance with the respective shares or interests of each of such
parties entitled thereto. Ellis, 864 S.W.2d at 557; see also Tex. R. Civ. P. 760, 761. Although the first judgment
has been characterized as preliminary, it is final for purposes of appeal. Ellis, 864 S.W.2d at 557. Matters
decided in the first decree cannot be reviewed in an appeal from the second judgment. Id.
In the second judgment, the court approves the commissioners’ report and partitions the property in kind or by
sale. Campbell v. Tufts, 3 S.W.3d 256, 259 (Tex. App.—Waco 1999, no pet.). If, however, the trial court finds the
report “to be erroneous in any material respect, or unequal and unjust,” the trial court rejects the report and
appoints other commissioners to partition the land. Id. (citing Martin v. Dosohs I, Ltd., 951 S.W.2d 821, 824 (Tex.
App.—San Antonio 1997, no writ)); see also Tex. R. Civ. P. 771. A party objecting to the commissioners’ report
has the burden of proving that the report is materially erroneous or that it unequally and unjustly partitions the
property. Ellis, 864 S.W.2d at 557; Roberts v. Philpot, 435 S.W.2d 614, 615 (Tex. Civ. App.—Tyler 1968, no writ).
Johnson v. Evans (Tex.App.- Houston [14th Dist.] Feb. 9, 2010)(Hedges)
(suit for partition of land, two-stage proceedings with two final judgments, effect of nonsuit)
(amount of ad litem fee affirmed, ad litem attorney for defendants served by publication)
AFFIRMED: Opinion by Chief Justice Adele Hedges
Before Chief Justice Hedges, Justices Seymore and Sullivan
14-08-00610-CV Gerald K. Johnson v. Christine Evans and Frederick M. Evans
Appeal from 3rd District Court of Anderson County
Trial Court Judge: Bascom W. Bentley
Voluntary Partition
Common owners of land may voluntarily effect a partition, which segregates their possession and use. Bunting v.
McConnell, 545 S.W.2d 30, 31 (Tex. Civ. App.--Houston [1st Dist.] 1976, no writ); Houston Oil Co. v. Kirkindall, 136
Tex. 103, 109, 145 S.W.2d 1074, 1077 ( 1941). (1) This includes life estates. See Morris v. Morris, 99 S.W.2d 872,
874 (Tex. Civ. App.--Galveston 1907, no writ). "A partition of real property involving an owner of a life estate or an
estate for years and other owners of equal or greater estate does not prejudice the rights of an owner of a
reversion or remainder interest." Tex. Prop. Code Ann. § 23.003 (Vernon 2000). Because partition affects only the
right to possession, it does not confer or convey title of the property, and it merely dissolves the tenancy in
common. Dierschke v Cent. Nat'l Branch of First Nat'l Bank, 876 S.W.2d 377, 379-80 (Tex. App.--Austin 1994, no
writ); Bunting, 545 S.W.2d at 31; Tex. Prop. Code Ann. § 23.004(c) (Vernon 2000). Thus, life tenants cannot
voluntarily grant each other fee simple title in property to which they hold only a life estate, as no higher estate can
be acquired by partition. Tieman v. Baker, 63 Tex. 641 (1885); Dierschke, 876 S.W.2d at 379-80; Luker v. Luker,
226 S.W.2d 482, 483 (Tex. Civ. App.--Eastland 1949, no writ); Evans v. Graves, 166 S.W.2d 955, 958-59 (Tex.
Civ. App.--Dallas 1942, writ ref'd w. o. m.).
Backhus v. Werchan Wisnoski (Tex.App. - Houston [1st Dist.] Mar. 13, 2008)(Nuchia)
(probate law, construction of will, real estate law, partition of land)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
01-07-00041-CV Sharon Swank Backhus; Benjamin F. Swank, III; Shannon Lea Werchan Pickering; Swank Turner
Backhus; Benjamin Fontaine Swank, IV; Christian Harris Swank; and Suzanne Swank Porter v. Haven Lynn
Werchan Wisnoski and Shane Alan Werchan
Appeal from 12th District Court of Grimes County
Trial Court Judge: Hon. William McAdams
In their first issue, appellants ask, "Is the partition made by Sharon Swank Bacchus and Benjamin F. Swank, III valid
and binding on all persons? The partition deeds executed by Sharon and B. F. purport to partition fee simple title
in the lands to which each owns only a life estate in an undivided 1/2 interest. Because these deeds purport to
partition a higher estate than what Sharon and B. F. owned as cotenants, the partitions are not valid. See Tieman,
63 Tex. at 641; Dierschke, 876 S.W.2d at 379-80; Luker, 226 S.W.2d at 483; Evans, 166 S.W.2d at 958-59.
We overrule appellants' first issue.
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