This is a suit in trespass to try title in which the principal question presented is: What effect, if any, is to be given to the judgments in a prior partition suit between the parties or their predecessors in title involving the land in suit?
The property in controversy is an undivided 1/9th of 1/8th royalty in 445 acres of land in Coke County, Texas.
Plaintiffs below, appellants here, are J. D. and S. C. Padgett, Viola and Patsy Ann Blair and O. G. Heins who are the heirs and hold the title, if any, of J. C. Padgett, the only child of J. N. Padgett and his first wife Melissie Padgett.
Appellees are Sidney and Hugh Padgett, Mary Ella Jackson and husband Ira Jackson, Julia Davis and husband J. K. Davis, Beaulah Stuckler, Ruby Mae Manicchia, Bertie Anna Mann and husband Fred Mann, Floyd E. Shepley, J. A. Drane, guardian of George K. Jackson and George K. Jackson, who, excepting pro forma parties, are the heirs and hold the title, if any, of J. N. Padgett and V. A. McMillan Padgett, who was the second wife of J. N. Padgett.
The pleadings in the case are purely formal.
The lands in suit having been acquired by J. N. Padgett by purchase during his second marriage belonged to the community estate of such marriage and J. C. Padgett, son of the first marriage, had no interest therein when in November 1926, J. N. Padgett commenced partition proceedings in the District Court of Coke County. These facts and conclusions are without dispute.
In the 1926 partition suit J. N. Padgett named as defendants his nine children, J. C. Padgett the only child of his first marriage and the eight children of his second marriage. He alleged that he and his nine children were the "joint owners in fee simple" of certain described lands including the property in suit and that he was the owner of an undivided "one-half (1/2) part of the above described lands and premises and that the defendants (naming them) are each the owners of an equal undivided one-eighteenth (1/18) part of the aforesaid lands and premises."
All of the defendants in such suit although being duly served defaulted and the trial proceeded without their appearance.
On April 12, 1927, the Court in the partition suit entered judgment finding that plaintiff was the owner of an undivided one-half interest in the lands sought to be partitioned and that his nine children, naming them, were "each the owners of an undivided one eighteenth interest in said premises" and "it would be to the best interest of all parties hereto that said land be divided into two equal shares and that one share be allotted to the plaintiff and other share be allotted to the defendants in common so that each of said defendants named above will own an undivided one-ninth interest, and the court further finds that said lands is susceptible to partition in such manner."
Partition was then decreed in this language:
"It is therefore ordered and decreed by the court that said above described land and premises be and it is hereby ordered and directed, partitioned and distributed so that an equal share of said land above described shall be distributed to the plaintiff and to defendants so that the plaintiff shall own one-half part or interest and that the defendants named above, shall jointly own the other one-half part or interest in and to said land and premises."
The Commissioners appointed to make the partition decreed by the Court reported on April 22, 1927, that they had in "obedience" to such decree and after having "notified the parties" executed the writ of partition by dividing the premises into two tracts and recommended that one tract be assigned to the plaintiff and the other tract to the defendants "to be owned by them jointly which partition we judge to be fair and equitable between said parties and in proportion to the shares to which said parties are respectively entitled."
This report of the Commissioners was confirmed by Court judgment which vested title to one tract in the plaintiff J. N. Padgett and to the other tract in the defendants and decreeing "that the share or portion of said lands allotted by said Commissioners to ...