¶1 dissenting. — I can not assent to the disposition made of this case by the majority of the court. In my opinion, the judgment of the trial court should be affirmed, on the ground that the District Court of Galveston County rightfully acquired jurisdiction over the cause and the parties thereto in the partition proceedings had in that court, as *367 set out in the original opinion delivered by this court'. I think the cause pending in the District Court of Galveston County was essentially a suit or action for partition, and one over which the District Court had jurisdiction; and that the case there made is essentially different from that of Messner v. Giddings, 65 Texas, 301.
¶2 The validity of partition proceedings is not affected by the attitude that the parties stand to each other in the trial court, nor is it affected by reason of the fact that they do not stand in hostility to each other. If the court has jurisdiction over the subject of partition, they may invoke its jurisdiction and aid, although it may appear from their pleadings that there is no contest between them, and that they are willing that partition may be accomplished in a certain way. Friendly suits of partition are well known to the practice. And because the parties may agree that judgment may be rendered in a certain way, and because the effect intended by the judgment might have been accomplished by the parties out of court agreeing to what they desired the court to do, will not of itself defeat the jurisdiction of the court to render judgment in the matter. A decree under such circumstances would not be void. Grassmeyer v. Beeson, 18 Texas, 764.
¶3 This principle is to some extent illustrated in a line of cases that frequently occur, in which the parties, after suit brought, agree that a certain judgment may be entered. The effect produced by this judgment may have been between the parties by agreement accomplished out of court. But we apprehend that such a judgment would not be pronounced void because the parties agreed that it may be rendered in a certain way.
¶4 I do not believe that a court that has the jurisdiction over the subject matter will refuse to entertain jurisdiction and render judgment because the parties in interest may beforehand agree as to the manner in which the court shall dispose of the ease and render judgment, and how it shall be executed.
¶5 To illustrate: Suppose in an action of trespass to try title the defendant and the plaintiff, at the time the plaintiff files his petition, agree in a writing accompanying the petition that judgment may be rendered in a certain way, and the parties join in asking the court that no writ of possession issue, or other process issue. Will the court in such a case decline jurisdiction, because the parties have consented and agreed to a full and final disposition of the matter, and because the result sought to be accomplished by the judgment could have been reached by the parties under an agreement independent of a judgment by the court ? I think not. It seems to me that the case before the court is within this illustration.
¶6 Parties entitled to a partition, while they may agree, and might have fixed their several rights and interest by agreement, are not bound to do so; and because they may have agreed is no reason why a court will not decree partition between them when asked by a petition to that effect. *368 They may rather rest their rights acquired in the thing divided under a decree of partition than upon an agreement between them. The decree of partition is something more than an agreement, and gives the parties holding under the decree a greater security and protection than they would have simply under an agreement of partition. The decree of partition adjudicates the rights of the parties, and precludes and estops any subsequent controversy or contention about the matter. Under the decree the rights rest upon a sounder and firmer basis than, if based solely upon a contract. This argument is illustrative of the idea, that although the parties may agree, and have agreed, they may also, for a better security of their rights, avail themselves of the jurisdiction of the court.
¶7 It was in the power of the court, if the land was not susceptible of division, to order its sale by a commissioner appointed for that purpose. Grassmeyer v. Beeson, 18 Texas, 766. And the court having the power to judicially ascertain and do these things, it does not seem to me that the parties beforehand agreeing that the land can not be equally and fairly divided, and agreeing upon a commissioner to sell, will have the effect to render the judgment and decree actually made void.
¶8 I think the decree and judgment rendered by the court practically fixed and settled the rights of the parties, and that it was final, and that no further decree in the nature of a confirmation was necessary. 18 Texas, 767; McFarland v. Hall, 17 Texas, 690; 1 Black on Judg., sec. 39, p. 43.
¶9 In my opinion, the motion for rehearing should be granted, and the judgment of the court below, for the reasons here stated, should be affirmed.