¶1(dissenting).
¶2This case, in my opinion, should be either affirmed or reversed and rendered. There is no assignment of error by either party which, if sustained, requires a remand. I am of the opinion that the judgment of the trial court should be reversed and rendered in behalf of appellant for the recovery of an undivided one-half interest in the 45 acre tract in suit.
¶3I will not attempt to retrace the com- • píete title to the 45 acre tract but will only discuss what, to me, are its controlling aspects.
¶4The 45 acre tract was part of a 320 acre tract which Mrs. M. A. Davis et al., as heirs of J. J. Goodrum, in 1900 conveyed to J. M. Cupp and J. S. Smith.
¶5Two grandchildren, then minors, of J. J. Goodrum, Willie R. and Selvin Smith Goodrum, did not join in this conveyance, nor is it shown by the record the interest in the 320 acre tract owned by each grantor.
¶6In 1900 J. S. Smith was married to Lecie Smith and his interest in the 320 acre tract was community property of himself and Lecie Smith. Lecie Smith died in 1920, and her interest in the 320 acre tract passed to her children of whom ap-pellee J. A. Smith is one.
¶7In 1924, J. S. Smith conveyed the 45 acre tract to Willie R. and Selvin Smith Goodrum. This deed recited that it was for the purpose of effecting a partition of the 320 acre tract of which it was a part.
¶8Even though this deed may not be effective as a legal partition of the 320 acres, it is effective as an equitable partition under the rule stated in Larrison v. Walker, 149 S.W.2d 172, Texarkana C.C. A., writ ref., as follows:
“The deeds of a tenant in common to specific parcels of the land are not absolutely void. They are always good as against the grantor. Such deeds do not convey or destroy any of the title of the nonjoining cotenants to their undivided interest to the lands described in the deeds. The non joining cotenants may avoid such deeds, if and to the extent only they are injured by such deeds. Though one cotenant has no power to divest the title of other cotenants by selling specific parts of the common property, yet under the well-settled doctrine of equitable partition the court in adjusting the equities of all the interested parties will protect such purchasers by setting aside to them the particular tracts purchased, if it can be done without injury to the other owners, where, as here, the acreage of the common property is of *457equal and uniform value; and will set aside to the non joining cotenants the equivalent of their interest in all the land out of the unsold tract if it is sufficient to satisfy same; and if the unsold tract is not sufficient to fully satisfy the interest of the non-joining cotenants, then the remainder of their interest will be satisfied out of that sold, in the inverse order of the execution of such deeds.”
¶9See also Merriweather v. Jackson, 38 S.W.2d 599, Austin C.C.A., n. w. h.
¶10Willie R. and Selvin Smith Goodrum conveyed an undivided one-half interest in the 45 acre tract to their attorney, L. E. Laurence, Jr. Willie Goodrum then conveyed his remaining interest in the 45 acre tract to appellant. The interest which Willie Goodrum then owned in such tract was an undivided one-fourth interest. The undivided one-fourth interest in the 45 acre tract owned by Selvin Smith Good-rum was conveyed to appellant by the established heirs of Selvin Smith Goodrum.
¶11These facts, in my opinion, establish a record title to an undivided one-half interest in the 45 acre tract described in the pleadings.
¶12Appellant contends that he is entitled to recover the full title to the 45 acre tract because appellee is a naked trespasser and that as a tenant in common he has this right. I cannot agree to this contention for the reason that appellee had an interest as an heir of his mother, Lecie Smith, in the 320 acre tract out of which the 45 acre tract was formed. This interest is equitable and of the nature described in the above cited authorities. This interest prevents, in my opinion, the classification of appellee as a naked trespasser.
¶13I would reverse and render judgment for appellant for an undivided one-half interest in the lands described in his petition.