Ellington v. Bryant , 293 S.W. 327 ( 1926 )

In Deaton v. Rush, 113 Tex. 176, 252 S.W. 1025, it was held that a suit by the maker of a deed to cancel it was not a suit to recover the land the deed conveyed, and therefore that the statute of limitations applicable to such a suit was the one (article 5690, Vernon's Statutes) declaring that "every action other than for the recovery of real estate, for which no limitation is otherwise prescribed, shall be brought within four years next after the right to bring the same shall have accrued and not afterward."

In the same case it was held that, if the cause of action was in favor of a married woman, the operation of the statute just referred to was suspended by force of another statute, to wit, article 5708, Vernon's Statutes, declaring that the time during which a woman is married "shall not be deemed a portion of the time limited for the commencement of the action." And in the same case it was held further that a cause of action to recover land did not arise in favor of a married woman who had conveyed it by a deed until after she had obtained a cancellation of such deed.

It follows from the rulings made as stated that the judgment in appellees' favor cannot be supported on any findings the trial court could have made on the theory that either the 4 or 3 year statute of limitations applied in the case. Therefore, if the judgment is sustained, it must be because it did not appear that appellants were entitled to have the deed canceled on the ground that the officer taking her acknowledgment did not comply with the requirements of the law.

By the terms of the statute (articles 1114 and 6802, Vernon's Statutes), a conveyance by a married woman of land belonging to her separate estate does not take effect until on an examination "privily and apart from her husband" it has been fully explained to her by an officer authorized to take her acknowledgment, and she has acknowledged to the officer that "the same (quoting) is her act and deed, and that she has willingly signed the same, and that she wishes not to retract it." "It is the acknowledgment," said Judge Stayton in Waltee v. Weaver, 57 Tex. 569, "and not the signature, which passes the title in a conveyance by a married woman."

From recitals in the certificate of the officer who took Mrs. Ellington's acknowledgment to the deed in question here it appeared that all the requirements of the statute above referred to were complied with. Hence the deed on its face was sufficient to pass to Mrs. Bryant the title of Mrs. Ellington to the undivided interest she owned in the land.

Appellants' contention was and is, as here-inbefore stated, that the recitals admittedly sufficient, if true, to show a compliance with the requirements of the statute, were in fact false — that the officer did not examine Mrs. Ellington privily and apart from her husband, and did not explain the instrument to her, and that she did not acknowledge to him that the instrument was her act and deed and that she had willingly signed it and wished not to retract it.

Appellees, on the other hand, insist there was an absence of testimony tending to show fraud or imposition of any kind practiced upon Mrs. Ellington to induce her to execute the deed, and, therefore, that the recitals in the officer's certificate conclusively established as a fact that in taking her acknowledgment the officer complied with all the requirements of the law.

We agree there was no testimony showing fraud to have been practiced upon Mrs. Ellington. It appeared from her own testimony as a witness that she was fully informed as to the purpose and effect of the deed she executed, and that, in explaining it to her, the officer who took her acknowledgment could not have told her anything she did not already know about the transaction; and we think there is no reason to doubt from her testimony that, with such knowledge, she willingly signed the instrument, and desired it to be effective as her deed. We think it is apparent from her testimony that she relied for the relief she sought solely upon the fact (as testified to by her, her husband, and Mrs. Ayres) that the officer who took her acknowledgment failed to perform the duty the statute imposed upon him.

The rule is, in the absence of fraud or mistake, that the officer's certificate is conclusive of matters stated therein as facts as against a married woman who appeared before him for the purpose of acknowledging the execution of a deed conveying land belonging to her separate estate. Herring v. White, 6 Tex. Civ. App. 249, 25 S.W. 1016. If there is an exception to the rule, it is in a case like Stewart v. Miller (Tex.Civ.App.) 271 S.W. 311, where the deed of the married woman was without a consideration sufficient in law to support it.

In the case cited authorities pertinent to the question were discussed by Chief Justice Gallagher, who, in concluding the discussion, said the grantee in such a deed, though not a participant in fraud, practiced on the married woman grantor, "should not, * * * be entitled to deny the right of the grantor or her heirs to impeach the truth of the material recitals of such certificate, unless he shows some equitable ground growing out of some action in good faith on his part in reliance upon such conveyance; such, for instance, as actual occupancy of the property and valuable improvements thereon."

A difference between that case and this one lies in the fact that in that one it did not conclusively appear, as it did in this one, that the married woman fully understood the transaction she engaged in and willingly signed and delivered the deed with the desire that it should operate as a conveyance of her interest in the land.

We think the difference is a material one, and that relief by cancellation ought not to be granted to a married woman on the ground that the officer who took her acknowledgment did not comply with the requirements of the law, when she is in the attitude of saying, in effect, if the officer had fully discharged his duty in taking her acknowledgment, she nevertheless would have acted as she did in the matter.

The purpose of the statute is to protect the wife in the exercise of her right to freely dispose of her lands, and the officer's certificate, when in due form, is prima facie evidence that the purpose had been accomplished. The burden of proof is on the married woman to show to the contrary; and we think she does not do so when she not only fails to show that the failure of the officer resulted in her executing the deed when otherwise she would not have executed it, but shows, instead, that she would have executed the deed as she did had there been no such failure. Ward v. Baker (Tex.Civ.App.) 135 S.W. 620. In the case just cited the court said:

"The evidence tended to show that Mrs. Baker was fully acquainted with the recitals in the deed and the terms of the notes, but under the instruction [of the court] the deed would be invalidated, if not fully explained by the officer, although she had full knowledge of it from other sources. That proposition could not be sustained, for the reason that the failure to explain could not invalidate the deed unless a fraud was perpetrated upon Mrs. Baker, and a fraud could not be perpetrated if she knew all that could have been told her by the officer."

In Stewart v. Miller, referred to above, the only consideration for the married woman's deed was love and affection she had for the grantees. We are inclined to think that case also differs from this one, in that in this one there was a consideration the law recognizes as sufficient in the mutual undertakings of the heirs of Mrs. Joyce, including Mrs. Ellington, to join each other in the execution of a deed conveying the land to Mrs. Bryant. M. L. Joyce, testifying about the visit he made to appellants in Oklahoma, said:

"I told them I came up to see if they would sign the deed; we had had trouble with Mrs. Ellington before when Mrs. Harrall (Mrs. Ellington's mother) died — I told them I did not want the deed drawn up if they would not sign it, and they said for me to bring it up and they would sign it. Mrs. Ellington said that everybody knew Cornelia (Mrs. Bryant) was to have this land from the time she came to Mrs. Harrall's house."

Mrs. Ellington, testifying in her own behalf, said M. L. Joyce did not have the deed he wished her and her husband to execute with him at the time he visited them; that he declared he was making an effort to have Mrs. Joyce's wishes as to the land in controversy carried out; and that the purpose of his visit was to ascertain if she and her husband would join the other heirs in a deed conveying the land to Mrs. Bryant; that the deed was sent to her and her husband for their signatures before it was sent to any of the other heirs; and that, when she and her husband, after executing the instrument, sent it to another one of the heirs, it was because she understood it was "to be sent around and signed by the others." Mrs. Ellington's husband, testifying as a witness, said:

"I did not want to sign the deed, but I did sign it, because I knew if I did not the whole family would jump on me. I knew they sent me one to sign once and I failed to do it, and three or four days afterwards they sued me, and for that reason I signed this one. After the deed was signed, I sent it to Mr. Harrall, at Durant. I did that at the request of Mr. Joyce. I did not write Mr. Harrall what to do with the deed. He already knew that."

We think the testimony set out above, together with that referred to but not set out, warranted a finding by the court, involved in the judgment rendered (article 2190, Revised Statutes 1925), that the parties who executed the deed, including Mrs. Ellington, did so in conformity to a mutual understanding and agreement between them, and that such agreement and performance thereof by the parties thereto constituted a sufficient consideration within the doctrine which upholds voluntary subscriptions as valid on the ground that "one gratuitous subscription is the consideration for the other." 1 Elliott on Contracts, § 229; 25 R.C.L. 1400; Scott v. Trigg, 76 Ind. App. 69, 131 N.E. 415.

The judgment is affirmed.