3 S.W.2d 573 | Tex. App. | 1927
The jury found that neither Billie Vernon nor his wife, Ruby Louise Vernon, appeared before the notary public and acknowledged the mechanic's lien. They found that Billie Vernon did go before a notary public and acknowledge the deed of trust, but found that his wife did not. The jury further found that the actual value of the improvements placed on the property was $1,575.00. There was no objection made by any of the parties to the issues as submitted. Appellants did not request any additional issues submitted.
Based on the findings of the jury and additional findings by the court, judgment was entered by the court canceling the mechanic's lien and deed of trust as well as the deed executed by the trustee, and judgment was rendered in favor of appellants against appellees for the unpaid portion of the amount of the two notes which they had executed. Appellees make no complaint of the money judgment rendered against them.
Appellants, by various assignments of error and propositions thereunder, contend that the findings of the jury are not only against the preponderance of the evidence, but are entirely unsupported by the testimony; and further contend that in no event is a trial court or jury authorized to find, on the uncorroborated evidence of the grantors, that a mechanic's lien or deed of trust was not acknowledged, when the notary's certificate thereto is in proper form. We overrule these assignments. Appellant E. W. Robertson testified that the mechanic's lien was signed in his office by appellees late in the afternoon, between 5 and 7 o'clock and that he personally called the notary public to the office, and that appellees each signed and acknowledged same before the notary in his (appellant's) office. The notary whose name is signed to the certificate testified to the same effect. Each of the appellees testified positively that, when they signed the mechanic's lien, it was late in the evening, and that the notary was not in the office at the time, and that no one was in the office except appellant E. W. Robertson; that they did not know the notary whose name is signed to the certificate, and had never prior to the trial of this suit seen him; and that they did not acknowledge the mechanic's lien before any person.
The notary public testified that he kept a notary book in which he recorded the acknowledgments he took to deeds, but that he did not record acknowledgments to mechanic's liens. His notary book was produced, and revealed the fact that he did record at least in some instances the acknowledgments he took to mechanic's liens, but said book did not show that he took the particular acknowledgment in question.
There was no contention that the acknowledgment was taken at any other time or place except there in the presence and hearing and under the supervision of the appellant Robertson. If, as the jury found, the notary was not there and appellees did not acknowledge same, appellant could not have been misled, *575
and could not have been defrauded thereby. The tendency of our courts has always been to uphold, when possible, certificates as made by notaries to conveyances. The weight of authority, however, seems to be that, where it is shown that the parties did not appear before a notary for the purpose of acknowledging the execution of the instrument, and no acknowledgment in fact was made, the notary's certificate to the instrument is not binding upon the grantors named therein, and their property rights cannot be destroyed or impaired by said certificate of acknowledgment. Wheelock v. Cavitt,
In this case, as in Mission Bldg. Loan Ass'n v. Stoltz, supra, in addition to the testimony of each of the grantors that they did not know the notary whose name is attached to the notarial certificate, and that they never appeared before him and never acknowledged same, and that he was not in the office, and that no one else was in the office, of appellant Mr. Robertson at the time they signed the mechanic's lien, the notary himself testified that, while he kept a record, as required by article 5955 of the Revised Statutes, of a part of his notarial acts, he did not make any record of the acknowledgment of appellees to the mechanic's lien. The witnesses testified in the presence of the jury, and it is their prerogative to pass upon controverted issues of fact.
The necessity for a deed being properly acknowledged by a married woman in order for same to pass title is fully and ably discussed and the authorities elaborately collated, in the case of Stewart v. Miller (Tex.Civ.App.)
Appellants contend that appellees are estopped from denying the execution of the mechanic's lien and deed of trust by reason of the fact that they accepted the work and went into possession thereof, and for nearly two years made the regular monthly payments. This contention is, we think, not tenable. There can be no estoppel where the truth is known to all of the parties. 21 C.J. 1131; Hutchenrider v. Smith (Tex.Com.App.)
Appellant complains of the action of the trial court in submitting to the jury a question as to the value of the improvements placed on the premises by him. We overrule this assignment. The issue with reference to the value of the improvements was made by the pleadings and evidence of all parties. No objection was made by any of the parties to the issue being submitted to the jury. In view of the findings by the jury, which are supported by the evidence that appellees did not acknowledge the mechanic's lien, and that appellee Ruby Louise Vernon did not acknowledge the deed of trust, no lien could have been fixed by the court upon the homestead of appellees, and the finding of the jury with reference to the value thereof be came an immaterial issue. If it could be said that same should not have been submitted, it would be a harmless error.
We have examined all of appellants' assignments of error, and same are overruled. The judgment of the trial court is affirmed. *576