McKellar v. Peck

39 Tex. 381 | Tex. | 1873

Ogden, P. J.

The motion to dismiss the writ of error in this case is overruled. It is not necessary that the appellant or plaintiff in error should sign the appeal or writ of error bond, provided the same be otherwise sufficient. (Shelton v. Wade, 4 Texas, 150.) And if it were necessary their attorneys of record have the right to sign the bond for them. If the attorneys have seen fit to violate Rule 9 of the rules adopted by the Supreme Court for the government of the District Courts, they might possibly be dealt with upon a motion for that purpose, but certainly such a violation could not lessen their responsibility or liability as security on an appeal bond.

The writ of error bond appears to be defective in stating the amount for which the judgment was rendered, but it correctly describes the parties, the time when and the county where the judgment was rendered, and its number on the District Court docket, and this has been held a sufficient description under the law. (Forshey v. The R. R. Co., 16 Texas, 525.) And should the bond be otherwise inaccurate, it might be corrected, if necessary, by the record.

The appellants complain that there were many errors committed in the trial below for which the judgment should be reversed, but under the pleadings we do not deem it necessary to notice but one of the many errors assigned, as that will necessarily dispose of the whole cause.

The appellee brought this suit in trespass to try title to about eight hundred acres of land, alleging that defendants were in possession. The defendants filed a disclaimer to all the land excepting two hundred acres, which they claimed as their homestead. On the trial, a deed of trust signed by both appellants, who are husband and wife, covering the whole land, including the homestead, was offered in evidence as the basis of the appellee’s title. This deed of trust is acknowledged by the husband and wife before a notary public in the usual form, excepting that the notary public, in attempting to fix his notarial seal to the certificate, probably by mistake, attached instead the seal of the county court. And the court charged the jury, in effect, that the deed of trust with the notarial certificate, verified by the seal of the county court, is valid and of binding force upon the defendants, McKellar and wife. We think there is error in this charge, which will require a reversal of the judgment.

There is but one mode known to our law by which the husband and wife can alienate or charge their homestead, and in order to bind them, that mode, with all of its essential forms, must be strictly complied with. One of the requisite forms is the privy examination of the wife before one of certain specified officers. And the law positively requires that officer to certify such privy examination under his hand and seal of office. It follows that without such privy examination, certificate, official signature and seal, any act of the wife attempting to convey her homestead is a mere nullity, to be disregarded by her or those claiming under her at pleasure. The statute provides that the several notaries shall have a seal of office, and that all official acts of such notaries shall be verified by their seal of office, and it further particularly prescribes what a notary public’s seal shall be. And to make the law still more definite and mandatory, Article 4684, Paschal’s Digest, declares that no notarial act shall be valid unless the seal of office of such notary be appended. There can be no mistaking the law in this respect, and the act of the notary who took the acknowledgment of appellants, McKellar and wife, to the deed of trust under consideration, had, under the statute, no validity whatever until his seal of office was affixed. And until the notary had affixed his seal to his certificate, Mrs. McKellar was at liberty to recall or retract her acknowledgment in any manner she saw proper. We think it could hardly be claimed that the county clerk’s seal could be substituted for the notarial seal, or that it could add any force or verity to the notarial act; and certainly the verbal statements of the person who acted as notary in taking the acknowledgment, many years after he had gone out of office, were improperly admitted to vary or explain the certificate, or to attempt to account for the mistake in putting the wrong seal to his official act. We must, therefore, consider the certificate as without a seal, and, as under the statute the notarial act is invalid without the seal, it follows that there is no legal evidence of the privy examination of the appellant, Mrs. McKellar, to the deed of trust under which appellee claims, without which neither she nor her husband parted with any right or interest in their homestead. It is true, as intimated by this court on a former appeal, that if the notary was still in office and under the control of the court, he might still attach "his seal to the acknowledgment, provided Mrs. McKellar had not in the meantime withdrawn her acknowledgment, but under no other circumstances. Under the pleadings and facts of this case we must, hold that appellants have never parted with their homestead in the land in controversy, and that the judgment of the lower court is erroneous in depriving them of that right, for which error the judgment is reversed and the cause remanded.

Reversed and remanded.