Edwards v. Edwards

On Appellant’s Motion for Rehearing.

The motion contends that there is no pleading, trial court finding, or evidence to sustain the defense of verbal partition.

*661 It was not necessary to plead a verbal partition, specifically. The general denial, puts in issue any title appellees might show to defeat that asserted by appellant.

However, we regard the pleadings sufficient, independently of this holding. Ap-pellees set up the conveyance from A. H. to J. C. Edwards, and plead that it was in full settlement of the latter’s entire interest in his mother’s estate. We have given the substance of the evidence upon this issue 'in our original opinion. The court’s findings were in accordance with this pleading and-evidence.

The exact point appellant makes is that this showing (pleading, evidence, and finding) is of a settlement and not a partition.

The law regards the substance of a transaction, and) not the mere wording in which the parties have clothed their dealings. If A. H. Edwards conveyed to his son J. C. Edwards a portion of the community real estate in full settlement of the latter’s interest in his mother’s estate, and the conveyance was so accepted by J. C. Edwards, he going into possession of the community land conveyed to him and his father retaining possession of the remainder, the effect of the transaction was a partition of their respective interests in the community lands, it matters not by what term they designated it — settlement, payment, or what not.

“ ‘Settle’ is said to be a word of equivocal meaning; and to mean different things in different connections, and that the particular sense in which it is used may be explained by the context or the surrounding circumstances. Accordingly the term may be employed as meaning to agree, to arrange, to ascertain, to come to or reach an agreement, to determine, to establish, to fix, to free from uncertainty, to place, or to regulate.” 57 O. J. p. 526.

Where the legal title and possession of community real estate are in the father in trust for the community, a conveyance to the son of a portion of the real estate “in settlement of his interest in the estate” would be a partition; and, where this is the transaction, the terms “Settlement” and “partition” may be used interchangeably. At any rate, in popular parlance, such a partition would be termed a settlement.

But appellant contends that, since he only got fifty acres of the community lands, the transaction cannot be upheld as an “equitable partition.” As pointed out in our original opinion, we are not here concerned with the fairness of the partition. That issue, as beld by Judge Denman in Moore v. Blagge, could only be litigated in a direct proceeding brought for that purpose. It was only necessary to show that each party accepted

the portion allotted to him as his share in the whole, and that possession followed in accordance with the agreement or “settlement.” And this agreement, as we have shown, is one that may be established by parol testimony.

The motion is overruled.

Overruled.