In a suit for the partition of a fund jointly owned or claimed by different parties, brought by one of the claimants of an interest therein, all parties interested in, entitled to or having claims upon any part of such funds so sought to be partitioned and distributed, are necessary parties to the suit, and a petition seeking such partition and distribution which fails to disclose that all the parties interested in said fund are made parties, but affirmatively discloses that there are other parties interested in or having title to an interest in such funds who are not made parties by the petition, is subject to a general demurrer. De La Vega v. League, 64 Tex. 205; Ship Channel Company v. Bruly, 45 Tex. 8; Latham v. Tombs, 32 Texas Civ. App. 270[ 32 Tex. Civ. App. 270], 73 S.W. 1060; Hanner v. Summerhill, 6 Texas Civ. App. 764[ 6 Tex. Civ. App. 764], 26 S.W. 906; Summerhill v. Hanner, 72 Tex. 226; Stachley v. Peirce, 28 Tex. 328; Holliman v. Rogers, 6 Tex. 91; Barlow v. Linss, 180 S.W. 652; Williams v. Railway Co., 82 Tex. 553; Zwernerman v. Rosenberg, 11 S.W. 150; Railway Company v. Ellis, 153 S.W. 701; Railway Company v. Oliver, 159 S.W. 853; Needham v. Cooney, 173 S.W. 979. A recovery cannot be had by or on behalf of the payee in a nonnegotiable note or conditional obligation which by its terms expressly provides that the same shall not become payable except upon certain conditions to be thereafter determined, unless it is shown that the conditions under which the same is to become payable have been met or complied with.
See cases cited below. (2) The evidence showed Charles L. Prine to be a non-resident of the State of Missouri, and Sec. 5396, R.S. 1919, does not apply to a non-resident of Missouri. Sec. 5396, R.S. 1919; Gray v. McDowell, 69 Ky. 482 (6 Bush, 475); Supreme Ruling, F.M.C. v. Hoskins, 171 S.W. 812; Ross v. Blount, 60 S.W. 897; Latham v. Toombs, 73 S.W. 1060; Stiles v. Hawkins, 207 S.W. 89; 22 C.J. 89. (3) If the statute applies to a non-resident, then the evidence did not show failure of Prine to return to this State for seven successive years, and the demurrers of appellant should have been given. Sec. 5396, R.S. 1919. (4) The evidence was not sufficient to submit the case to the jury on the common-law doctrine of absence from home for seven years without tidings. Biegler v. Supreme Council, 57 Mo. App. 423; Duff v. Duff, 156 Mo. App. 252; Walsh v. Ins. Co., 162 Mo. App. 552; Hitts v. Ahlgren, 170 Ill. 60; Modern Woodmen v. Gerdon, 82 P. 1002; Renard v. Bennett, 93 P. 263; Hansen v. Owens, 64 S.E. 800; Marquet v. Ins. Co., 159 S.W. 733; Francis v. Francis, 180 Pa. 644; Gorham v. Settegast, 98 S.W. 665; Smith v. Smith, 49 Ala. 158; Donovan v. Twist, 93 N.Y.S. 990; Ins. Co. v. Lyons, 98 N.E. 824. (5) There was no issue of fact for the consideration of the jury on the question of Prine's death, in view of the testimony of the witnesses off
It says: "When suit was filed in the Johnson County District Court the jurisdiction of that court attached, with power on the part of the court to permit the pleadings to be amended and amplified, new parties to be made, to determine all essential questions, and to do any and all things with reference thereto authorized by the Constitution and statutes, or permitted District Courts under established principles of law. 31 Cyc., pp. 360, 361, 365, 367, 470, 396; Revised Statutes (1911), Arts. 1824, 1848, (1925) Arts. 2001, 1998, 1992; Reagan v. Copeland, 78 Tex. 551, 14 S.W. 1031; Jolley v. Oliver, 106 S.W. 1152; International G. N. Ry. Co. v. Howell, 105 S.W. 560; Hartford Fire Ins. Co. v. City of Houston, 110 S.W. 973, 102 Tex. 317, 116 S.W. 36; Latham v. Tombs, 32 Texas Civ. Appeals, 270, 73 S.W. 1060; Taylor v. Hulett, 15 Idaho 265, 19 L. R. A. (N. S.) 535, 539; 15 Corpus Juris, p. 810; Lanes v. Squyres, 45 Tex. 382; Foster v. Wright, 217 S.W. 1091, 1092; see also Benson v. Fulmore (Com. Of App.), 269 S.W. 71; Bailey v. Fly, 97 Tex. 425, 79 S.W. 299; Reed v. Harris, 37 Tex. 167; Connolly v. Hammond, 58 Tex. 11; McDannell v. Cherry, 64 Tex. 177." Again it says:
Departure, intended to be permanent, and continued absence under these circumstances does not even tend to raise a presumption of death, but on the contrary, is perfectly explained by the circumstances surrounding his departure. See 17 Corpus Juris, 1166, Sec. 5; 17 Corpus Juris, 1170, Sec. 9; 17 Corpus Juris, 1172, Sec. 13. See also Gorham v. Settegast, 98 S.W. 665; State v. Teulon, 41 Tex. 249; Ross v. Blount, 60 S.W. 894; Schwartzhoff v. Necker, supra; Latham v. Tombs, 73 S.W. 1060; Styles v. Hawkins, 207 S.W. 89. The judgment of the court in favor of the plaintiff can only be supported, therefore, upon the assumptions (1) that the facts of this case are sufficient to raise a presumption of death (which we have already discussed), and (2) that there are no facts in the record which tend to rebut that presumption, both assumptions being necessary for plaintiffs' recovery. This latter assumption, it seems to us, is entirely unwarranted and clearly unsupported either by authority or common sense. 17 Corpus Juris, 1172, Sec. 14, says: "Evidence showing a motive for the disappearance of a person is admissible to rebut the presumption of his death arising from absence.
pp. 723 to 726; Swift Co. v. Memphis Cold Storage Warehouse Co., 128 Tenn. 82, 158 S.W. 480, 485. When suit was filed in the Johnson County District Court the jurisdiction of that court attached, with power on the part of the court to permit the pleadings to be amended and amplified, new parties to be made, to determine all essential questions, and to do any and all things with reference thereto authorized by the Constitution and statutes, or permitted District Courts under established principles of law. 31 Cyc, pp. 360, 361, 365, 367, 470, 396; Revised Statutes (1911), Arts. 1824, 1848 (1925) Arts. 2001, 1998, 1992; Reagan v. Copeland, 78 Tex. 551, 14 S.W. 1031; Jolley v. Oliver, 106 S.W. 1152; International G. N. Ry. Co. v. Howell, 105 S.W. 560; Hartford Fire Ins. Co. v. City of Houston, 110 S.W. 973, 102 Tex. 317, 116 S.W. 36; Latham v. Tombs, 32 Texas Civ. Appeals, 270, 73 S.W. 1060; Taylor v. Hulett, 15 Idaho 265, 19 L. R. A. (N. S.), 535, 539; 15 Corpus Juris, p. 810; Lanes v. Squyres, 45 Tex. 382; Foster v. Wright, 217 S.W. 1091, 1092; see also Benson v. Fulmore (Com. of App.), 269 S.W. 71; Bailey v. Fly, 97 Tex. 425, 79 S.W. 299; Reed v. Harris, 37 Tex. 167; Connolly v. Hammond, 58 Tex. 11; McDannell v. Cherry, 64 Tex. 177. It is too plain for argument that Whaley, Long, T. K. and George Cleveland, and the American Exchange National Bank, were all either necessary or proper parties to the suit filed in Johnson County.
American Nat. Ins. Co. v. Garcia, Tex. Civ. App. 46 S.W.2d 1011; Id., 124 Tex. 466, 78 S.W.2d 170. If the evidence demonstrates that the absentee has established a new residence after leaving a former one, it must be shown that the absence relied upon to establish the presumption of death was from the last known residence, and absence from a former residence will not suffice Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S.W. 1060. Evidence was introduced upon the trial which was sufficient to support findings that Myrtle Brown was alive at Alleytown in 1932, at Eagle Lake in 1935, at Wharton in 1936 and 1937.
Civ. App.) 32 S.W.2d 880; Garcia v. American National Ins. Co., 124 Tex. 466, 78 S.W.2d 170. In Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S.W. 1060, the court said: "While the statute does not expressly so read, we think it must be construed to mean that the person referred to must absent himself from his home." The court was discussing a prior statute, but we think the same construction should be placed upon the present statute.
We think the evidence insufficient to raise this presumption under the holding of the following cases to the effect that, where a person changes his residence from one state to another, evidence "that he had not been heard of in the former state for a period of seven years, does not make a case within the statute." Stiles v. Hawkins (Tex.Com.App.) 207 S.W. 89; Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S.W. 1060. Appellees' limitation claim under the 5-year statute is predicated upon partition deeds between them filed for record November 1 and 4, 1922.
Under both the common law and our statute, the absence relied upon must be from the last residence of the person, and, where it is shown that he established a residence in another state, proof of absence from his former residence does not raise the presumption. State v. Teulon, 41 Tex. 249; Stiles v. Hawkins (Tex.Com.App.) 207 S.W. 89; Turner v. Sealock, 21 Tex. Civ. App. 594, 54 S.W. 358; Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S.W. 1060. It may be questioned whether the statement was sufficient, without corroboration, as tending to show that Bert Thetford had established a residence in Mississippi.
Where it is found in the development of the case that additional parties are necessary in order to properly adjust equities and prevent multiplicity of suits, the court of its own motion may and will stay proceedings until such additional parties as are necessary are made parties to the suit. Latham v. Tombs, 32 Tex. Civ. App. 270, 73 S.W. 1060; Ship Channel Co. v. Bruly, 45 Tex. 6. It is accordingly ordered that the judgment be reversed and the cause remanded for further proceedings not inconsistent with our holding herein; the costs of appeal to be taxed against appellants.