The opinion
On Motions for Rehearing.
The appellee J. H. Patrick and the appel-lee Stephens-Roach Company have each presented motions for rehearing.
We think the questions presented in the motion of the appellee J. H. Patrick are sufficiently disposed of in our original opinion. This motion will accordingly be overruled without discussion.
As to the motion of the appellee Stephens-Roach Company we think that the prima fa-cie effect given by article 4156 and 4161, Rev. Statutes of 1925, cannot be held to apply to the recitation in the mother’s inventory that the minor’s undivided half interest in the property therein described was burdened with an “equity” in favor of the guardian “of $400”; thus leaving the minor’s interest y10 only. The “claim” was in hostility to the minor, and he not in court with opportunity to contest, or, if so, in a court having jurisdiction to determine the claim. At most, the recitation was a mere conclusion; no fact being stated from which the law would imply and fix the equity asserted. As already in dieated, we do not think the statutes invoked give to such recitation in an inventory the character of prima facie proof of the facts recited. Moreover, the subsequent inventory of the plaintiff’s guardian and the evidence, to which no objection was made, abundantly overcomes any prima facie effect that may be ascribed to the recitations in the inventory returned by the minor’s mother.
Nor do we feel prepared to say that the case should be reversed as to the appellant minor in order to determine the question of improvements in good faith. Only two of the defendants and appellees, to wit, F. L. Chil-dress and Mona Bowery, pleaded improvements in good faith, and the prayer for the recovery thereof was only against J. H. Patrick and Mattie B. Patrick, their grantors. The answer of the appellee Stephens-Roach Company was by demurrer, a general denial, and a plea of not guilty. And the Stephens-Roach Company is now the only appellee seeking a reversal for the purpose of adjudicating the question of alleged improvements in good faith. As stated in our original opinion, no evidence whatever was offered that improvements have been made, and we cannot say from the record that there are such. We think the rule stated in the case of Wilson v. Wilson, 35 Tex. Civ. App. 192 , 79 S. W. 839 , is to be applied. At page 840 of that report ( 35 Tex. Civ. App. 194 ) the court said:
“The burden of proof was upon the appellant to establish by the evidence the questions of value referred to, and, having failed to do so, there was no basis in the evidence upon which the jury could have predicated a verdict for improvements.”
But, if so, this suit was one in trespass to try title, and distinguishable from the case cited by the appellee Stephens-Roach Co. of Whitman v. Power, 103 Tex. 232 , 125 S. W. 889 . In that the case there was one in which there was a prayer for partition. The case here was prosecuted upon a petition in trespass to try title with no prayer for partition on the part of plaintiff or any defendant, and we think it will be time enough for the settlement of equities arising out of improvements in good faith, if any, when and if the parties in interest undertake a partition. In Kesterson v. Bailey, 35 Tex. Civ. App. 235 , 80 S. W. 97 , it is said:
“This action was brought for the entire tract, and plaintiffs have recovered an,undivided half, and were found to be tenants in common with defendants. There was no prayer for partition, hence there has been and can be no adjudication in this cause as to defendants’ right to improvements which are ascertainable only in partition proceedings. We may here state that, if a partition of the land could be fairly made, so as to give defendants that portion containing all, or, if not all, then as far as practicable the substantial portion, of the improvements made by them, this they would be entitled to regardless of the question of good faith. * * * It seems to us that the judg- *487 meat in this case ought not to have the effect of cutting off the above right in some future suit for partition. * * *”
Again it is said in the case of Garcia et al. v. Illg, 14 Tex. Civ. App. 482 , 37 S. W. 471 :
“As plaintiff in error can only recover a part of the land in controversy, the question of the value of the improvements for which they might be held responsible can only be determined in partition, as it may be that, on an equitable division of the land, no improvements would be allotted to plaintiff in error” — citing Yancy v. Batte, 48 Tex. 46 ; Johnson v. Bryan, 62 Tex. 623 .
We conclude that both motions for rehearing should be overruled.