Titus v. Johnson

50 Tex. 224 | Tex. | 1878

Moore, Chief Justice.

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 question. That he may elect to consider himself ousted, and bring suit against an adverse claimant of the land, even though such claimant has never been in actual possession of it, is equally well settled!,, (Moody v. Holcomb, 26 Tex., 718.) Certainly there is nothing to be found in the case of Stroud v. Springfield, 28 Tex., 649, in conflict with these familiar and well-established rules of procedure in the statutory action in this State of trespass to try title, by which it was unquestionably the legislative intention to provide a simple and effectual remedy for determining every character of conflicting titles and disputed, claims to land, irrespective of the fact of its actual occupancy or mere pedal possession. The point ruled in the case of Stroud v. Springfield is, that the plea of “ not guilty ” does not admit a trespass on the part of the defendant, but calls upon the plaintiff not only to prove title in himself, but also to prove an actual or constructive trespass by some character of adverse claim, or assertion of title or interest, by the defendant.

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 accepted is not shown; and (3) that said acknowledgment was not made in a county for which McClure was commissioned as a notary.

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. But, certainly, the difference between this case, as well as that of Brown v. Moore, and the one now before the court, is too obvious to require argument or comment for its elucidation. In these cases the court did no more than say that if the certificate required to give effect to the deed, or warrant its record, appeared upon its face and in connection with the instrument invalid and unauthorized, that effect could not be given by the court to the deed or its record. But here we are asked to hold the record of a deed ineffectual for the purpose for which it was required by law to be made, though in all respects apparently correct and in strict accordance with law, on parol evidence adduced by subsequent purchasers long after the deed was recorded, to impeach not the genuineness of the instrument or the verity of the facts stated in the certificate, but to prove matters wholly extraneous thereto, with the view of showing that the officer by whom the certificate was made did not possess the capacity to give the certificate, or was not acting within the sphere of his duty. When an instrument, with the certificate of acknowledgment or proof of execution as required by law, is presented to the recorder, it is made his imperative duty to record it; and we find nothing in the statute, and have been cited to no authority, to warrant our saying, when it has been thus recorded, that the effect of its record, many years afterwards, may be destroyed by parol evidence impeaching the truth of the certificate upon which the record was made, though verified by the official signature and seal of a public officer. Certainly we do not feel inclined, in the absence of authority in its support, to give our sanction to a doctrine so detrimental, in our opinion, to public interest, and so well calculated to undermine and destroy the foundation upon which the holders of recorded titles now rest in security. x

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 confidential communications of their clients. (Greenl. on Ev., sec. 244.) But if the objection had been well taken, the refusal of the court to sustain it would not require a reversal of the judgment; because the parties to whom he testifies he gave notice of Johnson’s claim to the land,were chargeable with constructive notice of his title by the record of the instrument of December 9,1856.

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,. can hardly he inferred from the contradictory statements of Ragsdale,—did not authorize the vendor to annul the sale.

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.