Lea Benson v. Estelle M. Fox

This is a partition suit. In 1976, Mrs. Estelle Fox, appellee, and her sister, Mrs. Lea Benson, appellant, purchased a vacant lot in the city of Rusk, Texas. Each paid one half of the purchase price of the lot, but title was taken in Mrs. Bensons name only. Mrs. Fox moved her mobile home on the lot, and shortly thereafter Mrs. Benson moved her mobile home on the lot. In time, petty disputes led to their total estrangement. As a result, Mrs. Fox brought suit, requesting the court to: (1) find a resulting trust in her favor; (2) award her an undivided one-half interest in the lot; and (3) partition the lot under Rule 756 et seq. of the Texas Rules of Civil Procedure. In her answer, Mrs. Benson admitted that Mrs. Fox owned an undivided one-half interest in the lot and that she held title in trust for her. Mrs. Benson, however, resisted the suit for partition on the grounds that the parties had entered into an agreement that the property would not be partitioned until after the death of the survivor, and prayed for a declaratory judgment to that effect. Trial was before the court without a jury. The trial court, without appointing commissioners to make the partition as required by Rule 761, entered a judgment awarding Mrs. Fox the north one half and Mrs. Benson the south one half of the lot. Thereafter appellant, Mrs. Benson, duly perfected this appeal.