# Borden v. Hall

> Court of Appeals of Texas · September 27, 1951 · 255 S.W.2d 920

URL: https://www.frixlaw.com/law-library/cases/9653495

## Case

- **Full name:** BORDEN v. HALL Et Al.
- **Court:** Court of Appeals of Texas
- **Decided:** September 27, 1951
- **Citations:** 255 S.W.2d 920; 1951 Tex. App. LEXIS 1909
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Walker
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
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## Opinion text

On Motion for Rehearing.
We made the statement in that part of our opinion which discusses defendant’s Point 3 that “plaintiffs were at least co-tenants of Everett Price and could enforce their rights in this suit without accounting for the absence of Everett Price.” In the argument in his motion for rehear *927 ing, defendant points out that plaintiffs are collateral heirs of Everan Price and had to show that Everett, the brother of Ever-an, did not inherit Everan’s interest in the property in suit, and that consequently they could not be Everett’s co-tenants.
This argument is sustained and we withdraw the statement quoted from our opinion. The plaintiffs are descendants of a maternal uncle of Everan Price, and to prove their title, had to prove either that Everett Price did not inherit anything from his sister Everan or that they had inherited Everett’s title. They are claiming title under Everan and so could not be co-tenants with Everett Price. See: Sections 3 and 4 of Article 2570, Vernon’s Ann.T ex. Civ. St.
However, this conclusion and the withdrawal of the statement quoted from our opinion do not affect our judgment. As we understand Point 3 and the argument made thereunder, and the Bill of Exception referred to in this argument, the defendant’s bottom complaint is that the proof is not sufficient to raise a presumption of Everett’s death because there is no evidence that Everett had been searched for and not found; and we remain of the opinion that this evidence was not necessary to create the presumption of death for which Article 5541, Vernon’s Ann.Tex.Civ.St. provides.
The argument in defendant’s brief under Point 3 ends with these two sentences: “In Turner v. Sealock, 21 Tex.Civ.App. 594 , 54 S.W. 358 , the Court held that Article 5541, R.S. of Texas, 1925, does not apply where no absence from the State of Texas is shown. There is no competent evidence in the record that this court can accept going to show the absence from his residence of Everett Price.” However, the language of Article 5541 simply does not require absence from the State; and we construe the last sentence of the two just quoted as being a conclusion drawn from the argument that plaintiffs failed to show a search and absence from the State.
These seem to be the only attacks which defendant has made upon the sufficiency of the evidence to prove that Everett Price was dead, and that his death occurred before Everan Price died. Other matters stated in the motion for rehearing have been considered but do not require additional comment. The motion for rehearing is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9653495. Public record. Not legal advice.