50 Tex. 224 | Tex. | 1878
Evidently the court did not err in overruling appellants’ demurrers to appellee’s (plaintiff in this court) petition and amended petitions. That the owner of land has such seizin by reason of his title, whether legal or equitable, as will support an action of trespass to try title in this State, has been too often recognized to now admit of
The instrument dated December 9,1856, signed by Martin H. Ragsdale, acknowledging and in effect ratifying the previous sale and conveyance to J. IÍ. Johnson of the portion of the certificate claimed by appellee, appears upon its face to have been duly acknowledged before an officer authorized by the statute to take such acknowledgment, and to have been correctly admitted to record in the county in which the land is situate, on the certificate of such officer. Subsequent purchasers from Ragsdale are, therefore, chargeable with constructive notice of Johnson’s equitable title, unless they can in some way impeach or invalidate this record. They seek to. do so on the grounds (1) that McClure, before whom the acknowledgment was made, was, by contract with Johnson, to receive a portion of the land, in consideration for his services in locating and surveying it for him; (2) that McClure was claiming and holding the office of surveyor as well as that of notary public at the time he took and certified Rags-dale’s acknowledgment, but which of these offices he last
In support of these objections we are referred to the cases of Brown v. Moore, 38 Tex., 645; Johnson v. Brown, 25 Tex. Supp., 120; and Johnson v. Newman, 43 Tex., 628. We„ cannot perceive, however, that the last two of these cases have any bearing whatever upon the question, and the case of Brown v. Moore merely holds that the grantee in a deed of trust was interested in the conveyance to the extent of his commissions, and was, therefore, disqualified from taking the acknowledgment of the grantors, one of whom was a married woman.
It is a familiar principle, that the deed of a married woman does not take effect or become operative and binding upon her until she makes the acknowledgment prescribed by statute before an officer authorized to take it. Obviously, it would be incompatible with the object and purpose of the law requiring the privy examination of the wife separate and apart from her husband by an officer charged with the duty of explaining the nature of the instrument and examining her, to ascertain whether she had freely and willingly signed the instrument, to hold that the party to whom it is made, and who has a pecuniary interest in it, is competent to take such acknowledgment. This case, it will also be observed, did not involve the validity of a record, or its effect as notice to subsequent purchasers, but merely the execution and validity of the deed itself as between the parties to it.
In the subsequent case of Sample v. Irwin, 45 Tex., 567, the court held, that “one who identifies himself with the transaction, by placing his name on the face of the instrument as the avowed agent of one of the parties, is not competent to give it authenticity as an officer.” And this, we think, is as far as this court has ever gone, or can, consistently with sound principles or a due regard to public policy, be asked to go, in the direction insisted upon by appellants.
There was no error in overruling the objection to the evidence of the witness Upthegrove. His evidence in no way impinges upon the rule prohibiting attorneys from disclosing
It certainly cannot be claimed that the judgment in the case of Caldwell against Batían, Stevens, and others was a nullity ; and not being void it cannot he impeached, and that, too, by mere strangers, in a collateral proceeding. But we see no just ground of objection to its admissibility in evidence in this case, if appellants were in a situation to urge their exceptions. The District Court of Hunt county certainly had jurisdiction of the subject-matter of the suit. The defendants answered to the 'action, and admitted that the land belonged to Batían, and that they were merely his securities for the payment of the note given for it. If Batían was willing that the title which he held under the administrator’s deed should he divested out of him and reinvested in Johnson’s estate, we cannot see that appellants have any ground1 of complaint. Bor can they be heard to say that wrong and injustice were thereby done the estate of Johnson, when no objection has been made to the decree by the heirs or others interested in the estate.
The testimony of Hart seems to be of little moment one way or the other; but we cannot see that it was of any injury to appellants. The most that can be said in regard, to it is, that it should have been excluded because of its immateriality; but if so, as it was not calculated to mislead’the jury to the prejudice of appellants, they cannot complain.
Johnson unquestionably bought the certificate before its location, as Bagsdale himself testifies, though the written conveyance was not made until afterwards. The failure of Johnson to pay for it, if such was the fact,—which., however,.
If the legal title, on the issuance of the patent, passed by estoppel to the heirs of Johnson, who were then the equitable owners of the land prior thereto, (Johnson v. Newman, 43 Tex., 628,) it cannot be insisted that the evidence was such as to warrant appellant in asking the protection of the court as innocent purchasers without notice, &c. And, granting that appellants held the legal title, there was certainly abundant evidence, which went to the jury without objection, tending to prove facts which authorize the inference that all of the appellants who purchased before the record of the instrument of December 9,1856, were chargeable with notice of appellee’s equitable title. There was ample evidence to warrant the conclusion that Johnson had fully paid for the certificate. Ragsdale admits the payment of $500 in the original conveyance which he made Johnson, in 1844. His admissions against his interest are certainly admissible against parties claiming under him by subsequent purchase. He also states in one of his depositions that his brother paid him for that part of the certificate sold Johnson, and that it was sold by his brother to Johnson in 1841 or 1842; while the note, which he again testifies was given for it, bears date in 1844. And this note, if the record is correct, cannot now be regarded as a valid claim against Johnson’s estate, although it was properly verified by the payee and allowed by the administrator. It does not appear ever to have been presented to or approved by the judge. It must, therefore, be held to have been long since barred by limitation.
The law of the case seems to have been clearly and satisfactorily presented by the court to the jury; and as there was testimony to support their verdict in any new aspect which can be taken of it, the motions for a new trial and in arrest of judgment were properly overruled.
The judgment is affirmed.
Aeeibmed.