46 Tex. 207 | Tex. | 1876
There was no evidence whatever tending to charge appellees, or their agents, with notice' of either the deception and fraud, alleged to have been practiced on the plaintiff by her husband, or the alleged intoxication of the officer who took her separate acknowledgment, and his failure to read over and explain to her the deed of trust. In the absence of such evidence the certificate of the officer is conclusive of the facts therein stated. (Hartley v. Frosh, 6 Tex., 208; Williams v. Baker, 71 Penn. St. Rep., 482; Louden v. Blythe, 4 Harr., 532.)
The court did not err in ruling that, notwithstanding the admission in evidence of the instrument of date November 20, 1873, it was competent for appellees to show that the property wMch that instrument purported to turn over to appellees, for the.purpose of securing or paying their claim, was never in fact received by them, but was appropriated by the husband of plaintiff. This instrument, at most, amounted to no more than a receipt, and whilst treating it as a receipt it was prima fade evidence of a payment; it was,, like other
The question as to whether the plaintiff was entitled to the credit was fairly submitted to the jury, and the evidence was certainly sufficient to support their verdict disallowing the credit. The purport of the evidence is, that this instrument was a mere device, with which in fact appellees had no connection.
The assignment that the judgment does not follow the verdict, and is not authorized by the pleadings, is not well taken. The plaintiff' claimed that she was entitled to a credit, and the verdict fixes the amount due on the notes, without allowing the credit claimed. So much of the verdict and judgment as refers to J. L. Pool, the plaintiff’s husband, may be treated as surplusage, and certainly constitutes no ground of complaint by appellant. Ho moneyed judgment is rendered sa^o for costs. The legal effect of the verdict and judgment is simply that the plaintiff is not entitled to relief against the enforcement of the deed of trust, and to ascertain, as she had sought to do, the amount of the debt for which the property conveyed in the deed of trust was liable to he sold.
Ho error is perceived in the judgment, and it is atfirmed.
Affirmed.