Mealy v. Lipp

Counsel

James B. and Charles J. Stubbs, for plaintiffs in error. (From petition for writ of error.) — 1. The court erred in its third conclusion of law in holding as follows: "We do not think that the instrument copied in our conclusion of fact shows an outstanding title to any of the property in controversy. It simply showed a contract by which A.B. Buetell would have an interest in the property for his fee as an attorney, upon prosecuting the suit to a successful termination. However, if it should be conceded that the effect of the instrument was to vest title in Buetell it would constitute him a tenant in common with the plaintiffs, and, upon the principle that one co-tenant can recover the interest of his co-tenants as well as his own (Pilcher v. Kirk, 60 Tex. 162 ), it would not avail appellants as an outstanding title." The two points were, we submit with deference, incorrectly decided, because the contract or deed granting A.B. Buetell an interest in the property, vested title in him. It was not a mere agreement to convey. The word "grant" and others were operative words of conveyance. Harlowe v. Hudgins, 84 Tex. 111 [ 84 Tex. 111 ]; Alford v. Alford, 1 Texas Civ. App. 245[ 1 Tex. Civ. App. 245 ]. And if the instrument did vest title in Buetell, and he thereby became a tenant in common with the plaintiffs, the principle that one co-tenant can recover the interest of his co-tenants as well as his own and that this deed could not avail appellants as an outstanding title does not apply in this case, because, while one tenant in common can recover, in trespass to try title, the entire amount sued for against a mere trespasser, such plaintiff when a defendant establishes title to a part interest is not entitled as against the defendant to recover for other tenants in common not parties. Boone v. Knox, 80 Tex. 642 ; Bennett v. Land Co., 1 Texas Civ. App. 324[ 1 Tex. Civ. App. 324 ]. The authorities referred to by the court were suits against a wrongdoer, or trespasser and not against a co-tenant, and they are inapplicable. This will appear from Contreras v. Haynes, 61 Tex. 106 ; Sowers. v. Peterson, 59 Tex. 217 . In the case at bar the only tenant in common was the minor, Paul Lipp, as Buetell who had acquired the entire interest of the other heirs, was not a plaintiff; and as Mealy was in possession and not a wrongdoer or trespasser, but a co-tenant, Paul Lipp could recover only whatever interest he had and no more. Buetell was not a party to the suit and he held whatever title the other Lipp heirs formerly had. 2. This court erred in holding that the superior outstanding title in Buetell was not a good defense pro tanto. Styles v. Gray, 10 Tex. 504 ; Hughes v. Lane, 6 Tex. 289 .