partition-suit-land | real estate transactions and litigation | condemnation and eminent domain proceedings  

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)
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.