48 Tex. 619 | Tex. | 1878
The record in this appeal contains a bill of exceptions to evidence admitted over exceptions to its admission by appellants, the charge of the court, and the verdict of the jury, and the judgment of the court thereon, in favor of appellees, without a statement of facts.
It is a suit to recover land, in which, as shown by the charge, the appellants, as plaintiffs below, were entitled to recover by virtue of the patent issued to their ancestor, unless they were prevented by the deed of their said ancestor, under which the appellees, defendants below, claimed title, as shown by their answer, as well as by the charge of the court.
The bill of exceptions shows that said deed of the ancestor was executed by a feme-covert, with her husband, without any certificate attached thereto of a private examination and acknowledgment before an officer, according to the statute; and that the court admitted parol evidence to establish the facts, which should have been shown by such certificate.
The court charged the jury to find for the defendants, if they were satisfied, from the evidence, that the deed was voluntarily executed by her.
The verdict shows expressly that the jury found the fact of the voluntary execution of the deed 'by her, upon the parol testimony admitted to establish it in pursuance to said charge.
Thus it is made to appear clearly and certainly under what charge and under what evidence the jury found their verdict,
The charge of the court, upon which this verdict was rendered in favor of the defendants below, is erroneous.
It has been held by this court, upon full discussion and mature consideration, that the deed of a married woman is not complete, so as to convey title to land, without the certificate of privy examination and acknowledgment, as prescribed by the statute. (Berry v. Donley, 26 Tex., 745.)
In the case cited, it was pleaded, as in this, that although there was no such certificate, still the deed was voluntarily executed by the married woman, showing that the same question was raised in that case as that upon which this case was decided.
Judgment reversed and cause remanded.
Reversed and remanded.