This is a second appeal of this case, the style of it on the former appeal being King v. Summerville, 80 S.W. Rep., 1050. On the former appeal the judgment of the trial court was reversed by this court, and a writ of error was obtained from the Supreme Court by the appellees on the ground that the judgment of this court *Page 363 practically settled the case. The Supreme Court affirmed the judgment, and in its opinion coincided with this court on every point. The Supreme Court, as required of it by section 8 of article 941, Revised Statutes, practically rendered judgment in the case, and only remanded it for a partition of the property, which under the facts, could not be done by that court.
That court said: "We affirm the judgment of the Court of Civil Appeals reversing the judgment of the District Court, but the facts necessary to a final judgment have not been developed and the case will be remanded to the District Court to be disposed of under the following instructions: The plaintiffs are entitled to recover one-half of the land exclusive of improvements, which will be set apart to them if it can be so divided as to give to King the other half and improvements; if not, then the partition must be conducted in the usual way." As the law of 1905 on the subject of partition was in force when the trial was had, the court tried the case under that law, which requires the court to determine whether property is susceptible of partition, and if so, to appoint three or more commissioners to make the partition; but if not susceptible of partition, to order a sale of the real estate, which sale shall be made as under execution, or by private sale, through a receiver, if the court so order, and the proceeds divided. (Gen. Laws 1905, p. 95.)
This court, and afterwards the Supreme Court, had fully determined the shares or interests of the parties in the land in controversy, that is, that the Summerville heirs were entitled to one-half of the land, and King, the vendee of Olschewske, was entitled to the other half and all the improvements. When the District Court had determined, as it did, that the land was not susceptible of a fair and equitable division, we think it should have ordered a sale, with instructions that the report of the sale should show the value of the improvements and the value of the land separately, and then, when the report was made, it should have given the Summerville heirs one-half of the value of the land and have given to the other party one-half the value of the land and the whole value of the improvements.
We are unable to comprehend that the Summerville heirs had any equities to be adjusted. They own a one-half undivided interest in land on which certain improvements were erected with the community funds of their father and mother. Those improvements were sold by the survivor, their mother, to settle a mechanic's lien resting on them. This court and the Supreme Court held that the survivor had the right and authority to sell the improvements. The Supreme Court said: "The conveyance of Mrs. Hanks carried with it to Olschewske the improvements upon the property made with the community funds upon which the lien existed as well as the half interest in the land which belonged to her, and King is entitled in the partition of the lands to be compensated for the improvements." If the improvements alone had been sold by Mrs. Summerville — Hanks — Moran to Olschewske, he would have had the right to have removed them from the land. In effect it was so held in this case by the Supreme Court. What equities would the children then have had in the improvements? None whatever. If Olschewske would have had the authority to move the improvements in *Page 364 that case he would have the authority to remove them if at the same time he bought one-half the land. Coupling a conveyance of the land with a sale of the improvements could in no way have created any equities in the children. If, as said by the Supreme Court, "Olschewske's vendee is entitled to receive the benefit of the improvements made with the community funds, which he bought from the surviving wife, as well as her half interest in the land," there are no equities to be adjusted between the parties. The children should have their one-half of the land, or its proceeds, and the vendee of Olschewske should have one-half the land and all the improvements, or their proceeds.
Such being our view of the case we have failed to understand how the equities as stated by the Supreme Court arose. That court said: "The court will ascertain the addition to the value of the land caused by the building of the house at the time the sale was made by Mrs. Hanks to Olschewske, and also the value of the lots conveyed by Olschewske; the sum of the amounts will constitute a charge against King, for the purpose of this case alone. The court will ascertain the value of Mrs., Hanks' interest in the lot at the time of the conveyance to Olschewske, the principal of the debt accrued on the property with interest and attorney's fee at the date of the said conveyance, also the amount paid by Mrs. Hanks for abstract of title and taxes on the land, and the sum of said items shall be a charge against plaintiffs' interest in the land. If the amount charged against King equals the sum charged against plaintiffs, King's equities will be satisfied and the court will consider the matter no further. If, however, the charge against plaintiffs be greater than the sum charged against King, then the court shall divide the excess equally, adjudge one-half to King with a lien on plaintiffs' interest in the land to be enforced through the Probate Court, unless it shall be necessary to sell the property for partition, in which case, the amount shall be paid out of the proceeds of plaintiffs' interest in the land." With the utmost deference and respect for that opinion we must say that we are unable to reconcile the equities suggested by the court with their ruling that one-half the land and all the improvements are the absolute property of King. If the improvements belonged at that time to King, now to Olschewske, and are so situated on the land as to prevent a division of the land, there can be no valid reason assigned for not allowing him the right to remove them to a point on the land so that the land can be divided, or to remove them from the land altogether. The children have no right in them whatever because their mother sold them, by and under authority of law, and that sale binds them as effectually as though they had made it themselves.
The trial court permitted witnesses to be introduced to show that the father of the Summerville children had paid $500 out of his separate estate on the improvements, and also permitted Olschewske to testify to a number of facts not bearing on the susceptibility of the land to be partitioned. Appellees having applied to the Supreme Court for a writ on the ground that the opinion of this court settled the case, confined their case to the testimony in the case at that time, and, when the Supreme Court affirmed the judgment of this court, the case could not be opened again for the purpose of hearing any testimony that might change the state of the case on the former appeal, except on the one *Page 365 question specifically designated by the Supreme Court in its opinion on rehearing, which related to the homestead character of the land when the mechanic's lien arose. The evidence as to King having reconveyed the land to Olschewske does not come within this rule as it does not bear on the merits of the case. The law contemplates that when a writ of error is granted in a case in which there has been a reversal and remanding, by the Court of Civil Appeals, that the Supreme Court, in case it agrees with the judgment of the Court of Civil Appeal, should render judgment in accordance with the opinion of the last named court. In this case the Supreme Court did render judgment that the Summerville children should recover one-half the land in controversy and that King should recover the other half and all the improvements on the whole of the land, and the case was remanded merely to have a partition of the property in accordance with its judgment. No evidence was admissible save that bearing on the questions of homestead, and the susceptibility of the land to be partitioned.
The trial judge stated that Olschewske offered to move the improvements from the property, and we are of the opinion that he should have been permitted to do so; in which event the court could readily have divided the land without entering into the solution of the equities presented to it by the Supreme Court. The judgment will be reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING. In case appellant should desire to remove the improvements from the land, it will be the duty of the trial court, under the opinion of this court, as well as that of the Supreme Court, to authorize him to make such removal, and then partition the land as directed by those opinions. We do not conceive, as intimated by appellant, that there will be any effort, upon the part of the honorable judge who tried this cause, to evade the duties enjoined upon him by the Appellate Court in connection with this case, for his long record in public life has been one of duty well and fearlessly performed. He will do the right "as God gives him to see the right."
We are of the opinion that in the partition of the land appellant should recover of appellees their pro rata of the taxes paid by him on the land. (Kalteyer v. Wipff, 92 Tex. 673 [92 Tex. 673]; Hanrick v. Gurley, 93 Tex. 458 [93 Tex. 458].) But as to compensation for the use of the premises, we do not think appellant should recover. Appellees are infants, and instituted this suit through their grandfather, as next friend. The doctrine of the payment of the rent by one tenant in common to another is based upon the ouster of one by the other. We do not understand that the minors in this case have been placed in such a position as to be liable for the use and occupation of the premises, if a minor could in any instance be held liable for ousting a tenant in common from the premises. We are unwilling to permit the interest of the infants in the land to be absorbed by rents alleged to have accrued to appellant for the time a few months before and while this suit has been pending. Those rents could not be *Page 366 made a lien upon the land, as could the taxes, and the minors can not be held personally liable for them.
Nothing should be inquired into as to homestead rights except insofar as indicated in the opinion on rehearing by the Supreme Court. That question can affect nothing but the matter of attorney's fees.
Appellees obtained a hearing by the Supreme Court, on the former appeal of this case, by representing that the opinion of this court had settled the case, and they can not now repudiate that representation and again reopen the case in the trial court. They will not be permitted to play fast and loose with courts, but will be compelled to act in consonance with the dictates of fairness and the demands of good faith. They fixed the status of their case by their voluntary representations and can not render judicial proceedings farcical by filing new pleadings and making out a new case, in the face of their allegations that their facts had been exhausted. The Supreme Court had no authority to grant a writ of error except on the ground that the case was settled by the opinion of this court, and the statute in such case contemplates that the Supreme Court shall render final judgment. Insofar as it could be done the Supreme Court did render judgment and that judgment was that appellees should have one-half the land, or its proceeds, and appellant should have the other half and the improvements, or their proceeds. This is the decision of this court, and there is no desire or intention upon the part of this court to ignore or treat with contempt the decision of the Supreme Court, as is so impertinently insisted on by counsel for appellees. If the rights of the minor children have not been properly protected, as is insisted by counsel, it is not the fault of the trial judge, nor of the Appellate Courts, but it comes from a failure to fully show the rights of the minors in the improvements, which failure was followed by a representation that the case had been fully developed. If appellees had acquiesced in the former decision of this court, they could on another trial have fully developed their case, but that was not done, and a writ of error was applied for, and the judgment of this court affirmed, and thereby every avenue for reopening the case on the facts was closed to the minors, whose interests, according to the motion for rehearing, have not been properly protected.
The motions for rehearing are overruled except as to the taxes as hereinbefore indicated.
Motion overruled.
Writ of error dismissed.