The cross-plaintiffs, most of whom are nonresidents of Texas, sue to recover undivided interests in the land and the value of oil taken from the same. The cross-action discloses the cross-plaintiffs are claiming as the heirs of Jesse Blackwell, John Blackwell, and Elizabeth Edge, all deceased children of Jediah Blackwell, who died in 1874. The dates of death of the *Page 984 parties under whom they claim, other than Jediah Blackwell, are not shown.
I concur in the view the cross-action is subject to general demurrer because it fails to allege no administrations were pending in this state upon the estates of Elizabeth Edge, Jesse and John Blackwell, and none necessary, or any other fact which would authorize suit by the cross-plaintiffs as heirs. Northcraft v. Oliver, 74 Tex. 162, 11 S.W. 1121; Bluitt v. Pearson, 117 Tex. 467, 7 S.W.2d 524; Id. (Tex.Civ.App.)8 S.W.2d 310.
This affects a mere matter of pleading which may be amended. There are other questions presented by the appeal relating to the merits, which should be disposed of. They are not ruled upon by the main opinion. Briefly stated, my opinion relating to such other questions is as follows:
The land in controversy is a part of the M. J. Prue survey, being blocks 5 and 6, set aside to the heirs of Rebecca Anderson, Jesse Blackwell, Elizabeth Edge, Eliza Thompson, and John Blackwell by decree of the district court, dated February 12, 1895, partitioning the estate of Jediah Blackwell, deceased. By this decree a 1/5 interest in the blocks was set aside to each of the five sets of heirs.
The cross-plaintiffs allege Jediah Blackwell was the common source of title.
Appellants present the point that appellees failed to show a common source. For the purpose of showing the same, appellees offered in evidence three deeds under which appellants claim from some of the various heirs to whom blocks 5 and 6 were set aside by the partition decree which deeds contain recitals that it conveys the interest acquired and owned by the grantors by virtue of the decree, but such deeds do not purport to convey the undivided interests for which the appellees sue and which they claim under the decree. They merely show that appellants have acquired interests of some of the other heirs, but they are insufficient to show common source of the particular undivided interests for which the appellees sue. Halley v. Fontaine (Tex.Civ.App.) 33 S.W. 260; Greenwood v. Fontaine (Tex.Civ.App.) 34 S.W. 826.
Appellants also assert appellees failed to show any title through John Blackwell who, the evidence shows, preceded his father, Jediah, in death. This is based upon the theory that the land was community property of Jediah Blackwell and wife, and under the law as it was at the time of Jediah Blackwell's death, the children of John Blackwell did not inherit any part of such community property from their grandfather, Jediah. Article 1653, R. S. 1879; Cartwright v. Moore, 66 Tex. 55, 1 S.W. 263; Burgess v. Hargrove, 64 Tex. 110.
The decree of partition, as against the other parties to the decree and those claiming under them, vested in the heirs of John Blackwell title to a 1/5 interest in blocks 5 and 6. Article 6100, R. S. For which reason there is no merit in the contention that the heirs of John Blackwell failed to show any title in them from Jediah Blackwell.
The issue of limitation pleaded by appellants was one of fact for the jury. The court did not err in submitting same.
The objection to the charge presented by the appellants' eleventh proposition is well taken. Gibbs v. Lester (Tex.Com.App.) 41 S.W.2d 28,80 A. L. R. 431.
By the twelfth proposition the point is made that the appellees Jones failed to show with certainty the interest inherited by them. They show they are some of the heirs of their grandmother, Elizabeth Edge, but in the state of the evidence it cannot be ascertained the particular interest they inherited. This proposition should be sustained. Baldwin v. Goldfrank, 88 Tex. 249, 31 S.W. 1064.
A number of other propositions are presented by appellants, but in my opinion they are either without merit or relate to matters which should not recur upon the retrial.
The heirs of Jesse and John Blackwell cross-assign error to the action of the court in allowing appellants credit for the cost of drilling the oil wells upon the land.
The suit was originally filed by appellants May 28, 1931. Appellants had notice of the adverse claim of the Edge heirs when they answered on January 22, 1932, and of the adverse claim of the Jesse and John Blackwell heirs when they filed their motion to set aside the judgment on September 5, 1933. Ten wells have been drilled on the land. The first one was commenced June 26, 1931; the last one was commenced on September 20, 1933.
Moore and his lessees evidently developed the mineral resources in good faith believing they had full title. *Page 985
The parties were tenants in common. The development of the land for oil has operated to enormously benefit the estate in which all of the parties are jointly interested. Since the parties were tenants in common and the drilling of the wells has greatly benefited the land, appellants should be allowed credit upon the damages recovered by appellees for appellees' pro rata part of the reasonable expenses incurred by appellants in drilling the wells. This is true though appellants had ousted appellees from possession and were asserting title adverse to them. Hanrick v. Gurley, 93 Tex. 458, 54 S.W. 347, 55 S.W. 119, 56 S.W. 330; Duke v. Reed,64 Tex. 705.