
When one tires of owning real estate with his co-owners, Texas law allows him the right to sue for partition of the property. In James et al v. Thornberry, 59.79 acres in Walker County, Texas, was owned by Ms. James and Ms. Warren, each with an undivided 15% interest, and Mr. Thornberry with 70%. Thornberry sued for partition by sale. (The lesser-used alternative is partition by deed in which the property is surveyed and divided up with each co-owner taking a portion with as close to the same value as the others.) The court appointed commissioners to partition the property and a surveyor to be used as the commissioners deemed necessary. But in his petition Thornberry forgot (as the court put it) that one Charles Mack owned a 50% mineral interest. Thornberry neglected to include Mack as a defendant.
The purpose of partition is to segregate ownership and to allow to each owner the free use, control, and possession of the interest set apart to that owner to the exclusion of all other former joint owners. A partition suit must seek a division of the whole of the common property.
The general rule is that before property can be partitioned all of the joint owners must be made parties so that the trial court may determine the interest each party has and make a proper distribution of the property. Implicit in this rule is that all owners must be joined as owners of the property sought to be partitioned.
That brings us to the purpose of Texas Rule of Civil Procedure 39 which requires the presence of all persons who have an interest in the litigation so that any relief awarded will effectively and completely adjudicate the dispute. Incidentally, that explains why those fixed-or-floating NPRI cases have so many “Rule 39 defendants”.
The judgment ordering partition was reversed and the case was sent back to the trial court so that Mr. Mack could be invited to the party. The court of appeals declined to consider several remaining issues raised by Thornberry. That would be inappropriate because those issues could not be fully resolved by a judgment without Mr. Mack.