Humble Oil Refg. Co. v. Clara May Downey , 143 Tex. 171 ( 1944 )

DISSENTING OPINION. I disagree with the majority opinion, which holds that the Humble Oil Refining Company is not an innocent purchaser for value under the deed executed by Mrs. Downey and others, and my views are as follows:

This is an action in trespass to try title, brought by Mrs. Clara May Downey against Humble Oil Refining Company and Mrs. Grace Keller and husband, to recover an undivided one-half interest in 76.52 acres of land in Harris County, Texas. The trial court rendered judgment for plaintiff upon answers of the jury to special issues. Upon appeal the judgment of the trial court was affirmed by the Court of Civil Appeals in a majority opinion. 161 S.W.2d 803.

Mrs. Downey, who had been divorced from Dorsey Downey, filed this suit against petitioners on October 5, 1937. As a basis for recovery, Mrs. Downey alleged that the deed to Mrs. Keller was void because she, Mrs. Downey, did not appear before the notary whose certificate is attached to the deed for the purpose of acknowledging the deed.

The certificate of acknowledgment attached to the deed shows that Mrs. Downey's acknowledgment was taken by J.J. Shoemaker, a notary public in and for Montgomery County, State of Maryland, where the deed was executed. The form of the certificate complies in all respects with that prescribed by Article 6608, Vernon's Annotated Civil Statutes. It recited that Mrs. Downey "personally appeared" before the notary; that she was examined by him privily and apart from her husband; that the instrument was fully explained to her; and that she did not wish to retract it.

The jury found that Mrs. Downey knew that the purpose of the deed of date February 8, 1929, was to convey to Mrs. Keller the land therein described; that at the time she signed said deed she did not know that she had an undivided interest in the land described therein, but that she ought to have learned, in the exercise of ordinary care and diligence on her part, that she owned an interest in said land; that on February 8, 1929, there was in existence an understanding, agreement, or custom between Mrs. Downey and J.J. Shoemaker, the notary public, whereby he would, without her personal appearance, place upon any instrument bearing her genuine signature and providing for a certificate of acknowledgment, his duly executed certificate showing due acknowledgment of such instrument by her before him; that the acknowledgment to said deed was placed on same in accordance with or as a result of such agreement, understanding, or custom; that at the time she signed said deed to Mrs. Keller she understood and expected that said deed would be handed or sent to said J.J. Shoemaker for the purpose of having placed thereon by him, in pursuance of such agreement, understanding, or custom, a certificate of her due acknowledgment; that Mrs. Downey did not appear in person before J.J. Shoemaker for the purpose of acknowledging said deed to Mrs. Keller of date February 8, 1929; that Mrs. Downey understood and expected at the time she signed said deed that it would be sent or otherwise delivered to Mrs. Keller, the grantee, with the genuine signatures of the grantors and an apparently valid certificate of acknowledgment thereon; that Mrs. Downey knew, or under all the facts and circumstances ought to have known, that some other person, firm, or corporation would likely purchase from Mrs. Keller the land described in said deed, or some part thereof, or some interest therein, in reliance upon the apparent validity of said deed; and that Mrs. Downey, in the exercise of good faith on her part, ought not to have made known her claim to an interest in the land in controversy, prior to the time the defendant Humble Oil Refining Company purchased a lease thereon from Mrs. Keller and husband on April 28, 1934.

At the close of the testimony Mrs. Keller and husband and the Humble Oil Refining Company moved for an instructed verdict. After the verdict of the jury was returned they asked that judgment be rendered in their favor by virtue of the answers made by the jury to the special issues submitted. The trial court overruled these motions, and entered judgment as above indicated. The Humble Oil Refining Company and Mrs. Keller and husband appealed to the Court of Civil Appeals, and the judgment of the trial court was affirmed. Both Humble Oil Refining Company and Mrs. Keller appealed to this Court for writs of error, both of which were granted.

The facts in this case are unusual. They do not show that an inexperienced married woman was overreached in a land deal; nor do they show that Mrs. Downey was coerced or induced by deception to sign a deed to which a notary without her knowledge or consent attached thereto a false certificate of acknowledgment. On the contrary, the record discloses that Mrs. Downey is a woman of wide and varied business experience, and did not rely on her husband or anyone else to look after her business affairs, but relied solely on her own judgment. In the course of her dealings she had executed many deeds, and she well understood the meaning of the deed in controversy and its purpose, and signed same freely and voluntarily. She knew what she was doing and the consequences of her acts. It is also shown that she inaugurated the custom of having J.J. Shoemaker, a notary public, to fill in the certificates of acknowledgment to deeds signed by her, without her appearance before him, for her convenience, because she was so busy and because she was intolerant of the requirement that a married woman should personally appear before a notary public for the purpose of having him take her acknowledgment, — which requirement she termed "absurd and ridiculous."

Mrs. Downey testified that for a period of over two years, ever since her marriage to Downey, it had not been necessary for her to appear before Shoemaker for the purpose of having him take her acknowledgment; that on numerous occasions, without her personal appearance, Shoemaker had executed certificates of her acknowledgment to instruments which she had signed and sent to him, but that she did not contemplate bringing suit against other parties who had acquired property under conveyance to which such false certificates of acknowledgment had been attached pursuant to the above-mentioned agreement, "when * * they paid money for it and acted in good faith."

Mrs. Downey knew when she sent the deed in controversy to Shoemaker that he would, in pursuance of the above-mentioned agreement, attach thereto a regularly-executed form of her acknowledgment, and that the deed would be delivered to the grantee. She also knew that persons dealing with the property in Texas would have no opportunity to learn that she had not acknowledged the deed before the notary and would have no reason to make inquiry concerning same, and that a purchaser would rely upon the truth of the recitals in said deed and certificate of acknowledgment. In short, it was her acts which caused the notary to attach his certificate of her acknowledgment to the deed without her appearance before him.

It is undisputed that Humble Oil Refining Company paid value for its lease, and that it had no knowledge of the infirmity therein until shortly before this suit was filed. The Humble Oil Refining Company contends that, in view of the undisputed facts, the trial court and the Court of Civil Appeals erred in holding that respondent could assert the invalidity of the deed in controversy against an innocent purchaser for value, on the following grounds: (1) That she did not in any way invoke the exercise of the notary's authority in making the certificate to the deed; (2) that she was not estopped to claim that she had not called upon such officer to exercise his authority to take her acknowledgment to the deed; and (3) that she was not guilty of any positive act of fraud.

The rule is firmly established that where a married woman, who has with her husband signed a deed conveying her separate real estate, appears before an officer authorized by law for the purpose of acknowledging the conveyance, and the officer fails to do his duty in taking such acknowledgment, but makes a certificate which shows a full compliance with the law, such certificate is conclusive upon the married woman in favor of an innocent vendee who paid value for it without notice. Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488; Pool v. Chase, 46 Tex. 207; Waltee v. Weaver, 57 Tex. 569; Adkins-Polk Co. v. Rhodes, (Com. App.), 24 S.W.2d 351; Sanger v. Calloway (Com. App.), 61 S.W.2d 988; Gore v. Citizens State Bank (Civ. App.), 88 S.W.2d 721 (writ refused); Jones v. Equitable Bldg. Assn. (Civ. App.), 45 S.W.2d 438 (writ refused).

It is also the law of this State that where a married woman, joined by her husband, signs a deed conveying her separate real estate, but does not appear before a proper officer for the purpose of acknowledging it, and no acknowledgment is in fact made, she having in no way invoked the exercise of his authorityto take her acknowledgment, the certificate of such officer is not binding upon such married woman, even in favor of an innocent purchaser for value. Wheelock v. Cavitt, 91 Tex. 679,45 S.W. 796, 66 Am. St. Rep. 920; Speer's Law of Marital Rights in Texas (3rd ed.), sec. 245.

The argument that the certificate of acknowledgement here involved can have no greater effect than a forgery is not convincing, in the light of the facts reflected by this record. The facts involved in Wheelock v. Cavitt, supra, show that Mrs. Wheelock had nothing to do with the selection of the notary, nor did she personally appear before the notary, nor did she have anything to do with the false certificate of the notary attached to the deed. Since the respondent in this case procured the notary to affix the false certificate to the conveyance by means of the antecedent agreement and custom, the certifiate here involved had nothing in common with a forgery.

It is respondent's contention that the authority of the notary cannot be invoked except by a physical appearance before the notary. That seems to have been the basis for the judgments of the trial court and the Court of Civil Appeals, and the acts of the respondent in other respects were considered immaterial. While there are intimations to that effect in some cases (Brietling v. Chester, 88 Tex. 586, 32 S.W. 527; Robertson v. Vernon (Com. App.), 12 S.W. 991), a careful examination of the opinions reveals that the facts involved were not the same as in this case. After diligent search we have been unable to find a case, with facts similar to those in this case, holding that a married woman could impeach a regular certificate of acknowledgment as against a good faith purchaser for value.

The case of Wheelock v. Cavitt, supra, is the leading case on the question of personal apperance before a notary. In that case this Court held that where the married woman did not appear before the notary, and where she had not in any way invoked his authority or caused the false certificate to be made by him, the certificate was not binding upon her. This Court in reaching a decision in that case used the following significant language:

"But where it is shown that the married woman has not appeared before the officer for the purpose of acknowledging the execution of the deed, and no acknowledgment has been in fact made, shehaving in no way invoked the exercise of the officer's authorityin that respect, the certificate, however formal, is not binding upon her, even in favor of an innocent purchaser for value without notice." (Italics mine.)

Then, in concluding its opinion, the Court said:

"Our conclusions are based upon the alleged fact that Mrs.Wheelock did nothing that called upon the officer to exercise hisauthority to take her acknowledgment to the deed. No phase of thecase that might estop her to deny the truth of the certificatehas been considered." (Italics mine.)

The courts have zeaously guarded the rights of married women in property, and they will not permit those rights to be destroyed by others by means of deeds not executed as required by law. Courts have also kept in mind that the laws enacted to protect such rights should not be used to defeat the rights of an innocent third party, who in good faith, without notice, for a valuable consideration, has acquired valid rights in certain property. Sanger v. Calloway (Com. App.), 61 S.W.2d 988; Pool v. Chase, 46 Tex. 210; Waltes v. Weaver, 57 Tex. 569.

It has been held that the taking of a married woman's acknowledgment over the telephone does not constitute a personal appearance by her before a notary public. 1 Amer. Jur., p. 343, sec. 69, id. p. 387, sec. 168; Myers v. Eby, 193 P. 77, 12 A.L.R. 535, and annotation of cases; Logan Gas Co. v. Keith, 117 Ohio State 206, 158 N.E. 184, 58 A.L.R. 600, and annotation of cases. But it has also been held that such an acknowledgment is valid in favor of an innocent purchaser for value. Timmins v. Independent Lumber Co. (Civ. App.), 7 S.W.2d 130; Humble Oil Refining Co. v. Davis (Civ. App.), 282 S.W. 930, id.296 S.W. 285; Wooten v. F. M. (Ark.), 249 S.W. 569.

Respondent cites the case of Daniel v. Mason, 90 Tex. 240,38 S.W. 161, 59 Amer. St. Rep. 815, as an authority here. In that case the husband did not join the wife in signing the deed, and the notary's certificate was in the ordinary form required by law for a single person or feme sole. Under the law, without his joinder she had no contractual power to make the conveyance. If she had personally appeared before the notary, and he had taken her acknowledgment as a married woman in legal manner and form, the deed would have been void, because without her husband's joinder she lacked contractual capacity to execute the deed. This court held in that case that the rule protecting a bona fide purchaser for value without notice applies only to cases of purchase from a holder of the legal title who has power to contract, and does not protect the purchaser as against a married woman in whose deed the husband did not join. The facts in this case are clearly distinguishable from the facts in the cases relied upon by respondent.

In view of the undisputed facts and the findings of the jury on issues submitted, the finding of the jury that Mrs. Downey in the exercise of good faith ought not to have made known her claim to an interest in the land prior to the time the Humble Oil Refining Company purchased a mineral lease therein, does not change the results of the other findings of the jury. Mrs. Downey was the cause of the notary's certificate being attached to the deed. The notary acted in accordance with her plans. There is not a scintilla of evidence that any fraud or influence was practiced on her to sign the deed, or that the notary attached his certificate to the deed reciting her acknowledgment except with her consent and knowledge.

In order for a conveyance to be valid, it is not essential that it have a consideration expressed therein. Baker v. Westcott,73 Tex. 129, 133, 11 S.W. 157; Galveston, H. S.A. Ry. Co. v. Pfeuffer, 56 Tex. 66, 72; Rogers v. Rogers (Com. App.), 15 S.W.2d 1037; Kahn v. Kahn, 94 Tex. 119, 58 S.W. 825. It is also well settled that a deed by one having legal title and power to convey, given in consideration of love and affection, is valid and passed good title to the donee. Robinson v. Douthitt,64 Tex. 101; Parker v. Stephens (Civ. App.), 39 S.W. 164; Couch v. Schwalbe (Civ. App.), 111 S.W. 1046 (writ refused); Robertson v. Hefley (Civ. App.), 118 S.W. 1159. The deed in question is regular on its face, and there is nothing in its provisions that would give a purchaser from the grantee notice of its invalidity. It is true that it is a deed of gift, but that does not carry notice to an innocent purchaser for value that the certificate of the notary was false.

The Humble Oil Refining Company unquestionably is a bona fide purchaser for value, and the fact that it knew that it was taking title from a person who had acquired her interest by a deed of gift does not alter its status. A bona fide purchaser for value occupies a better position than his vendor in that he acquires a good title free from the burden of equity which would prejudice the continuance of title in the hands of the vendor. Pure Oil Co. v. Swindall (Com. App.), 58 S.W.2d 7; Maxfield v. Pure Oil Co. (Civ. App.), 91 S.W.2d 892 (writ dismissed); 43 Tex. Jur., p. 615, sec. 361, p. 678, sec. 399 et seq.

Articles 6605 and 6608, Vernon's Annotated Civil Statutes, were enacted to protect married women from fraud and coercion in the execution of instruments, and they contain the requirements regarding the acknowledgment of a married woman to a deed executed by her. Their main purpose is to secure freedom of will and action on the part of the wife in the conveyance of her property, to see that she understands the contents of the deed, and to protect her from the possible coercion of her husband. Angier v. Coward, 79 Tex. 551, 15 S.W. 698; Hollis v. Francois,5 Tex. 195, 51 Am. Dec. 760; Ellington v. Bryant (Civ. App.),293 S.W. 327 (writ dismissed); Putman v. Coleman (Civ. App.),277 S.W. 213 (writ dismissed); 1 Tex. Jur., pp. 515, 516, sec. 112. In effect these Articles provide that an officer authorized to take a married woman's acknowledgment in doing so performs duties of a quasi-judicial nature, and acts in an advisory capacity in seeing that the married woman understands the instrument signed by her and that she freely and voluntarily executes same. But such Articles were not enacted to permit a married woman to freely and voluntarily sign a deed, the contents of which were thoroughly familiar to her, and in pursuance of an agreement or custom established between her and the notary, in order to suit her own convenience, have such officer without her personal appearance place upon such deed bearing her genuine signature his certificate of her acknowledgment of such deed, and then allow her to repudiate such acts when such repudiation results in damage or injury to an innocent purchaser for value.

One holding under a void deed can not claim protection as an innocent purchaser. 43 Tex. Jur., p. 628, 371, and cases cited; Wall v. Lubbock (Civ. App.), 118 S.W. 886 (writ refused); Daniel v. Mason, 90 Tex. 240, 38 S.W. 161, 59 Am. St. Rep. 815; Terry v. Cutler, 14 Texas Civ. App. 520[14 Tex. Civ. App. 520], 39 S.W. 152 (writ refused). In this instance this rule will not apply, because the deed under consideration was not absolutely void as between the grantor and an innocent purchaser thereunder for value. This holding rests on the ground that Mrs. Downey invoked the exercise of the authority of the notary to attach his certificate of acknowledgment to the deed. If the grantor wanted to set same aside as to an innocent purchaser, the burden rested upon the grantor to allege and prove that such deed was obtained by fraud or imposition. Brand v. Colorado Salt Co., 30 Texas Civ. App. 458[30 Tex. Civ. App. 458],70 S.W. 578 (writ refused); Hartley v. Frosh, 6 Tex. 208, 55 Am. Dec. 772; Freiberg v. DeLamar, 7 Texas Civ. App. 263[7 Tex. Civ. App. 263],27 S.W. 151 (writ refused); Cox v. Sinclair Gulf Oil Co. (Civ. App.),265 S.W. 196, 198 (writ refused); Timmons v. Independent Lumber Co. (Civ. App.), 7 S.W.2d 130; Essex v. Mitchell (Civ. App.),183 S.W. 402; Stringfellow v. Brazelton (Civ. App.), 142 S.W. 938. In this case no fraud or imposition is alleged as a basis for setting Mrs. Downey's deed aside.

I think that under the facts Mrs. Downey unquestionably invoked the authority of the notary to take her acknowledgment and attach his certificate to the deed, and that such certificate is conclusive against her as to the rights of an innocent purchaser for value. As to the rights between her and the Humble Oil Refining Company, no question of fact is presented for determination.

In my opinion the motion for rehearing filed by the Humble Oil Refining Company should be granted, and the former judgment of this Court affirming the case as to the Humble Oil Refining Company should be vacated.

Opinion delivered October 25, 1944.