130 S.W.2d 908 | Tex. App. | 1939
This is a land suit and involves title to 160 acres of land in Tyler County, patented to McCarey Risinger November 20, 1863. McCarey Risinger died in May, 1863, leaving as his sole heirs his wife, Anna Risinger, and two daughters, Myra who died in childhood, and Nancy A. E. Risinger who subsequently married appellant, C. M. Williams, in 1885 and died in 1936. The other appellants are her children and sole heirs. The matter at issue in this case is the validity of a deed in appellees' chain of title.
Appellees deraign title through a warranty deed dated February 24, 1883, signed by Anna Swearingen, surviving wife of McCarey Risinger, who subsequent to *909 his death married Josiah Swearingen, and by Swearingen, her husband, and by Nancy A. E. Risinger, the mother of appellants, purporting to convey the land here involved to R. A. Cruse. Appellants attack that deed on several grounds.
First, it is contended that the acknowledgment of Anna Swearingen was fatally defective, rendering the deed void as a conveyance of her five-eighths interest. The acknowledgment in question was as follows:
"State of Texas, Tyler County
"Before me J F Heard clerk of the County Court of said county on this day personally came Nancy A E Swearingen and Josiah Swearingen to me known to be the persons whose names are subscribed to the foregoing instrument and severaly acknowledged the execution of same for the purposes and considerations therein expressed — At the same time came Anna Swearingen wife of said Josiah to me known to be the person whose name is subscribed to the foregoing deed and after being examined by me privily and apart from her husband and having same fully explained to her she the said Anna Swearingen acknowledged such instrument to be her act and deed for the purposes and consideration therein expressed and declared that she did not wish to retract it or any part of it.
"Given under my hand and the seal of my office this the 29" day of February A.D. 1883.
"J. F. Heard"
The specific ground of invalidity urged against the certificate of acknowledgment is that it does not recite that Anna Swearingen "willingly" signed the deed. The assignment is overruled. No particular form of words is required to render a certificate of acknowledgment valid so long as it shows on its face that all essential prerequisites to a valid acknowledgment were in fact complied with. Spivy v. March,
Appellants' next contention is that the instrument is insufficient to convey the interest of Nancy A. E. Risinger. In the body of the deed, Nancy A. E. Risinger was given as one of the grantors and the instrument was signed Nancy A. E. Risinger "her mark". But the acknowledgment purports to be an acknowledgment by Nancy A. E. Swearingen. By his certificate the notary certified that Nancy A. E. Swearingen was known to him to be the person whose name was subscribed to the instrument. No Nancy A. E. "Swearingen" appears in the deed. An acknowledgment may be considered in connection with an instrument to which it is attached when considering its sufficiency. Breneman v. Mayer,
Finally, it is contended that the deed in question was not sufficiently proved up in the face of an affidavit of forgery filed in the case by appellants. That contention is also overruled. The original deed, 55 years old, was offered in evidence and admitted as an ancient instrument. No testimony whatever was offered tending in any way to impeach it. It came from proper custody and, as we see it, came free from suspicion. We think execution of the instrument was sufficiently established without other corroborative proof. Stooksbury v. Swan,
The judgment of the trial court is affirmed.