Eva Mae Largent Hickman v. Georgia Renee Largent Jones--Appeal from 278th District Court of Leon County

NO. 10-90-102-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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EVA MAE LARGENT HICKMAN,

Appellant

v.

GEORGIA RENEE LARGENT JONES,

Appellee

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From 278th Judicial District Court

Leon County, Texas

Trial Court #10,120

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O P I N I O N

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Eva Hickman appeals from a summary judgment granted to her sister, Georgia Jones, that orders the partition of real property owned by the parties. Hickman, by two points, alleges that the court erred in finding that the property was capable of partition in kind as a matter of law, because a genuine fact issue existed regarding ownership of the home, and in ordering partition without first adjusting the equities between the parties. We will overrule the first point, sustain the second point, and reverse the judgment.

Jones brought the action, seeking partition of a 193.93-acre tract of land which she and Hickman had inherited from their mother and had received by a partition deed from their siblings. Along with her general denial, Hickman counterclaimed for a judgment declaring herself to be the owner of the home and two surrounding acres of land. She also sought equitable reimbursement of expenditures made by her for property taxes, maintenance and improvements on the property. Jones filed a motion for summary judgment alleging: (1) she and Hickman were co-owners of all the real estate; (2) she and Hickman each owned an undivided one-half interest in the surface of the property; (3) the property was susceptible to partition; and (4) she and Hickman had an equal right to possession of the property. The court granted Jones a summary judgment and signed a decree ordering partition of the property and appointing commissioners. See Tex. R. Civ. P. 166(a), 761.

To have been entitled to a summary judgment on her claim for partition, Jones had to show that no genuine issue of any material fact existed and that she was entitled to a judgment as a matter of law. See Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985); Duke v. Squibb, 392 S.W.2d 885, 887 (Tex. Civ. App.--Texarkana 1965, no writ). The parties agree that they inherited the land by their mother's will and that this tract was conveyed to them equally by the partition deed from their brothers and sisters. Hickman claims, however, that her mother made a parol gift to her of the home and two acres of land while she and her mother were living together in the home and that this portion of the property should not be partitioned. Thus, Hickman contends that a genuine fact issue existed regarding the ownership of the home and that the trial court erred in granting the summary judgment. We disagree. Jones presented a copy of the will and partition deed establishing equal ownership interests in the entire property. Hickman negated her own claim to the home and two acres by stating in her response to the motion for summary judgment that "it was her mother's wish that [she] have the home and that [her mother] expressed that fact to other family members, as well as her intent to change her will to reflect that wish." See Texas Department of Corrections v. Herring, 513 S.W.2d 6, 9 (Tex. 1974) (holding that "a party may plead himself out of court; e.g., the plaintiff may plead facts which affirmatively negate his cause of action.") As Jones notes in her brief, this statement revealed that their mother did not intend to surrender possession of the property during her lifetime. "Where an owner of land makes a verbal sale or gift of it to take effect after his death but retains possession, no title is acquired." Hooks v. Bridgewater, 111 Tex. 122, 229 S.W. 1114, 1118 (1921). Therefore, as a matter of law, the summary judgment proof conclusively established Jones's and Hickman's equal ownership of the property. We overrule Hickman's first point.

Hickman is correct in her second point, however, that the court was required to adjust the equities between the parties before entering the decree ordering partition. See Tex. R. Civ. P. 760; Stefka v. Lawrence, 7 S.W.2d 894 (Tex. Civ. App.--Austin 1928, writ dism'd). Jones's proof that she owned one-half of the property did not entitle her to a summary judgment on the entire cause. Hickman specifically pleaded, by counterclaim, for reimbursement of amounts expended by her for property taxes, maintenance, and improvements of the property. Therefore, to prevail on the summary judgment motion, Jones had to show by competent summary judgment proof that no material issue fact existed as to this counterclaim. See Adams v. Tri-Continental Leasing Corp., 713 S.W.2d 152, 153 (Tex. App.--Dallas 1986, no writ); Duke, 392 S.W.2d at 887. Not only did she fail to negate the material facts of the reimbursement claim alleged in the counterclaim, Jones actually introduced a material fact issue about sums paid for property taxes. Her summary judgment proof included excerpts from Hickman's deposition which contained statements that Hickman had paid four years' taxes on the property. Hickman was entitled to set up her equities to support her claim for reimbursement from Jones so that the court could make all necessary adjustments in the decree ordering partition. See Tex. R. Civ. P. 760, 761; Duke, 392 S.W.2d at 888. Stefka, 7 S.W.2d at 894. Hickman's second point is sustained. The judgment is reversed, the decree ordering partition and appointment of commissioners is vacated and the cause is remanded for trial. See Tex. R. Civ. P. 760, 761.

BILL VANCE

Justice

Before Chief Justice Thomas, Justice Cummings

and Justice Vance

Reversed and Remanded

Opinion delivered and filed February 21, 1991

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