Hinojosa v. Edgerton
447 S.W.2d 670
Tex.
1969
Check Treatment

*1 legislative history property the fact that in this State” in which statute, pointed respondent as out in the Article 2.08 was authorized to opinion of (354 legal reading Smith S.W.2d invest. The effect clearly Legis- 126-128), indicated that the two statutes if same as Ar- word, “Chapter”, read, “any lature meant to use the ticle 7064(7) bonds or evi- word, rather “Title”. dences of indebtedness of United States of America in this State.” responsible A rule statement the same agree I with the admonition that if in this interpretation found Legislature mean it what said Arnim, Court’s Simmons 7064, it, the omnibus clause of Article page 220 S.W. 66 at Court; say this should know of no so. as follows: provision constitutional which would find take statutes “Courts must as that, clude the saying that, they them. More than should purposes, Texas securities willing they them. to take them as find “property clude in this State in which carefully They should out search law such insurance carriers invest effect giving tendment of a full funds,” and thus United include find to all of But must its terms. Treasury States bills. also hold I would language, else- its intent in its State”, phrase, “in this means law-making They where. are physical State, would location in this af- They body. responsible are firm the * * *” legislation. omissions Appeals, rewriting and would leave the Legislature. omnibus clause case, Reverting to facts of this argues Treasury WALKER, United States JJ., join SMITH and bills are not Feder- State securities but are dissent.

al securities. ma- What State and the that,

jority pur- seem overlook is

poses or for matter of Article purposes, Legisla- all other

ture includ- can define Texas securities as if ing Federal do. securities it wishes so to HINOJOSA, County Jose S. exactly precisely That it has what County, Petitioner, 3.34, done in Insurance Article Texas Code, defining prescribing “Texas Respondents. EDGERTON compa- securities” in which insurance life B-1022. No. required by nies are Article 3.33 to invest Supreme By Court of of their Texas. “Texas Reserves”. 75% provisions 3.34, term, “Texas Article Jan. Securities”, is defined as “1. U. including On March 1969. Obligations,” S. Bonds and among “treasury Leg- it bills”. So is that the islature the so-called clause in- omnibus security

cluded as a Texas Treasury bills,

United States “in this

State,” just surely expressly it had if By 2.08,

said so. of Article Code, respondent

Texas Insurance au- “[bjonds

thorized to invest in or other evi-

dences indebtedness of United ** By States of America include, Securities”, “any

7064(7), “Texas

Rankin, Wie, Kern, Martinez & Van Rankin, Jr., H. H. and Stonewall Van III, McAllen, Wie, for respondents. Edgerton, Respondents, instituted seeking this suit an order forty-five declaring court instruments accepted filed County Petitioner, not subject were to recordation and that accepting the action in and filing the instruments was void and effect; Respondents of no further ordering stricken from the official records question in instruments con- marriage Camargo, sisted records of Mexico, Republic with affida- executed; also, family history vits of unspecified relaing to title Texas., Camargo land located in and in conveyances being by deed re- Mexican corded in Mexico. The instruments are Spanish language, and it is undis- puted that not properly authen- being ticated and hence ad- mitted record Texas under re- quirements of Articles 6625a and 6626.1 except All the instruments one were filed and recorded Petitioner 1957. This suit was instituted in 1964. court overruled Petitioner’s

plea was barred statute of ticle Respon- and thereafter granted summary judgment dents’ motion for judgment ordering rendered Petitioner “delete, remove strike” each of the instruments from the record “wherein the same is recorded so henceforth there any bewill no record of of the said above described instruments place office Court Appeals affirmed the the trial City, Luther Nye, Jr., overruling R. Rio Grande court plea F. Petitioner’s Christi, for Corpus petitioner. Jones, Jr., 636], E. S.W.2d [429 this is appear in are to the statutes as 1. All Vernon’s Annotated references Texas Civil Stat- utes. problem sole to us for prescribes review. a rule of presented No applicable to when the evidence actually run; limitations commenced to recorded for ten Appeals, proved as stated Corp.

citing Gulf Coast Investment Law laws and hence whether or yers Surety Corp., 416 (Tex. S.W.2d 779 entitled to be recorded. See Holland *3 Votaw, 534, Sup.1967), Respondents no attempt made 103 Tex. 131 (1910), S.W. 406 to Lauderdale, establish when the discovered Frede v. 322 S.W.2d wrongful the (Tex.Civ.App.1959, ref., admission instruments to 379 e.). of r. writ n. Additionally, record. is The not purport prescribe statute does to right Respondents period raised as to of the a a of within which bring power the suit or to of brought the the court suit must be ac corrective grant sought; relief nor is against of the act a Clerk of the Coun claim that wrongfully suit is cast as instru admitting equity suit invoking quiet a of ten-year period aid ments to record. es by title removing by gov a cloud therefrom. See tablished Articles 3726 and 3726b Mortgage Corp. Ludwig, admissibility 121 Tex. erns of a in evidence (1932). necessity 48 S.W.2d 950 recorded without instrument execution, proof running and the Appeals The Court of was may interrupted period by of such be application view of Article 55292 to assertion claims adverse or inconsistent Respondents’ suit would “restrict and limit by to the claim evidenced the instrument 3726,” period provided for in Article di Respondents itself. The was pertinent provisions of which are: rected against the act of the “Every writing instrument of which in accepting recording the instruments permitted by or law di operate would recorded in the office rectly by striking thereon been, and which has from the records of the be, recorded, or may hereafter so after the court would no Such an order of doubt being proved acknowledged or in the inapplicable; render but by provided manner the laws of this Respondents fact remains that State in regis- force at the time of its period of limitation one for which no tration, or at time it was proved prescribed by Article or acknowledged; every or instrument statutes, accordingly governed and it is been, which has hereafter be ac- which establishes tually (10) Cf. period of in such instances. limitation in the used book said Clerk Wendel, Eckert 40 120 Tex. S.W. instruments, of such 2d Trust 796 and Farmers’ Loan & proved in such 1027 Beckley, Co. v. 54 93 S.W. not, manner or shall be admitted as evi- (1900). dence without below are reversed execution; the necessity proving judgment is rendered provided, no claim adverse or inconsist- suit. nothing take ent to the one evidenced such instru- ment during shall have been asserted McGEE, years; J., sitting. that ten (10) “Every 3. action of Article 3726b are sub- for the recov- ery stantially respects estate, here of real for which no in the limitation same prescribed, is otherwise involved. shall be right next after bring the same shall have accrued and not afterward.” REHEARING Annotated Texas

ON MOTION FOR Vernon’s that the statute Statutes. It is true purport prescribe does not However, limitations. it was incumbent upon declaratory to seek Respondents in their motion for re expiration judgment the ten- before hearing our to the call attention fact statute; year period oth- mentioned Petitioner did not file a motion for sum would, erwise, wholly invalid mary judgment and record afforded no as evidence under the be admitted basis for the rendition of To proof without of their execution. agree. judgment ren Petitioner. Our respond- statute, the the force vent IS, 1969, January accordingly dered on prior ents must take some set aside. ten-year period or es- *4 wrong- tablish that discover The granted. Motion for is ful admission of the instruments to record judgments The below are reversed and the until after cause is remanded to the trial court. ten-year period. trespass try title is not a This suit McGEE, J., participating. land. the title to to remove cloud on instru- simply a situation where have il- subject to have been ments not SMITH, (dissenting). correct- legally respondents recorded. The them in ly pursued only open course delivered on Jan- declaratory judg- filing petition uary 1969, withdrawn, fol- in- given ment. The Court has statutes lowing is substituted therefor: intend- never meaning volved which was Articles language ed. is clear It from County presents This 3726b rather unusual state of facts. The Coun- the re- give litigants, tended to such ten spondents, right, for petitioner is the here. petitioner four just for a partition pend- have years, complain the recorda- regard ing. It alleged petitioner that the has do bility an instrument. caused to be recorded in the records 3726b Articles 3726 contend Clerk’s Office numerous however, they do limitation, are statutes of struments in violation stat- contend, agree, utes of Texas. I have been unable to find that suits holding basis the Court’s in the record a denial of the trial court’s brought regarding finding that the instruments were recorded to recordation must in violation of law. only defense raised years. rather than petitioner is that barred cause remanding this in lieu of .The judg- court, should render ticle 5529. ment that the the Clerk of illegally holding The Court’s amounts no more filed for record petitioner than an assist to in his effort of Starr thereby give validity affirming to the instruments recorda- Appeals. only ten-year period provided trial court and the Court