Thompson v. Johnson , 84 Tex. 548 ( 1892 )

Suit in trespass to try title, by appellant Martha J. Thompson against appellees, for 37 1/2 acres of land in the Caruthers survey, in Grayson County. Defendants pleaded not guilty. The case was tried by the court, and judgment rendered upon his findings of fact and law for defendants, to which Mrs. Thompson, the plaintiff, excepted and gave notice of appeal. There is no statement of facts.

The court's findings are as follows:

"The land was the separate estate of Martha J. Thompson. Her husband J.G. Thompson died in 1879. August 3, 1872, plaintiff, joined by her husband James G. Thompson, executed a deed for the land in controversy in this suit to W.W. Purinton; that said deed was acknowledged before J.P. Hopson by plaintiff and her said husband; that on May 18, 1872, the clerk of the District Court of Grayson County, Texas, appointed said J.P. Hopson in the manner and for the purpose shown by the following paper:

" 'The State of Texas, County of Grayson. — Know all men by these presents, that I, S. Bostick, clerk of the District Court of Grayson County, Texas, do hereby nominate, constitute, and appoint J.P. Hopson my special deputy to take the acknowledgments of James G. and Martha J. Thompson to a deed made from them, the said James G. Thompson and Martha J. Thompson, his wife, to John K. Miller, and that his acts in so doing are entitled to full faith and credit.

" 'Witness my hand and official seal, this the 18th day of May, A.D. 1872.

[Seal] " 'S. BOSTICK, Clerk.

" 'I, J.P. Hopson, do solemnly swear, that I will faithfully and impartially discharge the duties incumbent upon me as a special deputy district clerk of Grayson County, Texas, to the best of my skill and ability, and that I will support the Constitution and laws of the United States and of this State; and I further swear, that since the adoption of the Constitution of the State of Texas, I, being a citizen of this State, have not fought a duel with deadly weapons, or acted as second in fighting a duel, or knowingly aided any one thus offending; that I am not disqualified from holding office under the Fourteenth amendment to the Constitution of the United States; and further, I am a qualified elector of this State. " 'J.P. HOPSON.'

" 'Sworn to and subscribed before me, this May 18, 1872.

" 'S. BOSTICK, Clerk.'

" 'Filed for record May 20, 1872.

" 'S. BOSTICK, Clerk.'

"That said appointment and oath were recorded in the office of said district clerk; but no bond was given by said Hopson; that before said Hopson took the acknowledgment of plaintiff and her husband to their deed to said W.W. Purinton, said district clerk verbally authorized said Hopson to take said acknowledgment, saying to said Hopson, that he would fix up the papers authorizing him to take said acknowledgment when he returned, which was never done; that said Hopson went to the house of plaintiff and her husband in the country to take said acknowledgment, accompanied by said Purinton; that said Hopson took said acknowledgment, and after doing so and attaching his certificate, delivered said deed to said Purinton, without having attached the required seal, but said seal was afterward attached by said district clerk in his office in the presence of and with the consent of said Hopson; that the certificate of acknowledgment to said deed made by said Hopson was as follows:

" 'The State of Texas, County of Grayson. — Before me, S. Bostick, clerk of the District Court of Grayson County, personally came J.G. and Martha J. Thompson, to me well known, and acknowledged that they signed and delivered the foregoing deed for the consideration and purposes therein stated; and the said Martha J. Thompson, wife of said J.G. Thompson, being by me examined, separate and apart from her said husband, and having the contents of said deed by me fully explained, she declared that she had signed the same of her own free will and accord, and wished not to retract her said act.

" 'Given under my hand and official seal, on this the 3d day of August, A.D. 1872.

[Seal] " 'S. BOSTICK, Clerk.

" 'By J.P. HOPSON, Special Deputy.

" 'Filed for record August 5, 1872, at 5 o'clock p. m. Recorded August 6, 1872, at 8 o'clock, a. m. " 'S. BOSTICK, Clerk.

" 'By E.C. FRY, Deputy.'

"When Hopson handed said deed to Purinton, it was with the understanding that it was to be carried to the clerk to have the seal impressed thereon.

"That said Hopson never acted as deputy district clerk except to take the acknowledgment of the deed mentioned in the above written instrument and the deed of plaintiff and her husband to said W.W. Purinton, and the above oath was made before the said district clerk, and no other appointment of said Hopson than that above set forth was ever made by said district clerk.

"That the W.R. Caruthers survey was the community property of said W.R. Caruthers and plaintiff, and that by the verbal partition of said tract of land plaintiff became the sole owner of the east half of same, embracing the land in suit.

"That the deed from plaintiff and her husband James G. Thompson to W.W. Purinton was duly and legally acknowledged and certified, and that said deed passed the title to the land in controversy to said W.W. Purinton.

"That judgment should be rendered against plaintiff, and in favor of the defendants J.M. Cook, J. A. Gilmore, The Denison Investment Company, J.B. McDougal, John Stockbridge, E. Perry, J.T. Munson, A.R. Collins, P. O'Donnell, J.N. Johnson, and R.H. Cohn, which is so ordered."

There is but one question presented in the assignments of error: Did the deed so acknowledged by Mrs. Thompson, she being a married woman, convey her title to her separate right to the land?

The certificate of the officer being signed as "special deputy" would not invalidate it. It being regular in all other respects, the words special deputy would be surplusage. It is objected to the certificate, that it does not show that Mrs. Thompson acknowledged that the instrument was her "act and deed." The form of certificate of a married woman's acknowledgment as prescribed in the Act of 1846 is similar to that prescribed in our present statute. Sayles' Civ. Stats., art. 4313. It was required, that the certificate should show that she acknowledged the instrument to be "her act and deed," and that she had "willingly signed, sealed, and delivered the same, and that she wished not to retract it." Where the certificate of the officer omitted to state that she acknowledged the instrument to be "her act and deed," but showed that she had willingly signed it, and wished not to retract it, it was held to be sufficient. Belcher v. Weaver, 46 Tex. 294; Solyer v. Romanet, 52 Tex. 567; Coombes v. Thomas,57 Tex. 321. This point must be decided against the appellant. Rev. Stats., art. 4310.

It is contended, that the person before whom the acknowledgment of Mrs. Thompson was taken was not in fact or in law authorized to do so.

The district clerk Bostick had authority to take acknowledgments to deeds for record. Rev. Stats., art. 4305. His deputies would have the same power. His appointment of a deputy is required to be by writing (Rev. Stats., art. 1103), and such deputy is required to take the oath of office. Rev. Stats., art. 1104. These statutes were complied with in this case. But it is contended by appellant, that the appointment was to perform a particular act — to take the acknowledgments of James G. and Martha J. Thompson, his wife, to their deed to John K. Miller; and that the appointment expired when these acknowledgments were taken. It seems that this can not be the correct doctrine. The law makes no provision for the appointment of a special deputy district clerk, but for a deputy or deputies; and when an appointment is made by the clerk he can not restrict the authority to one act, but it is good for all purposes. Albrecht v. Long, 27 Minn. 83.

From the foregoing considerations, we are unwilling to say that Hopson was not a de jure deputy clerk, in which case the acknowledgment of Mrs. Thompson was taken in all respects as required by law. But if he was not such deputy, it must be held that he was a de facto deputy — that is, clothed with color of authority and empowered to act in the premises between the parties, though possibly not in his own right. This would be true, whether he is regarded as holding over under his first appointment or as exercising the functions of the office under the last verbal appointment. Under the verbal appointment alone he was a de facto officer. The fact that he did not qualify would not control the question. Sharp v. Thompson, 100 Ill. 447; Coles County v. Allison, 23 Ill. 437; Soudant v. Wadhams,46 Conn. 218. He was appointed by the power legally authorized to appoint; irregularly, it is true — that is, not in writing; but he assumed the possession of the office, and by virtue thereof performed the act in question. He was a de facto officer. The case of Sharp v. Thompson, supra, is like the one at bar, except that in that case the deputy was acting as such and had taken other acknowledgments. In this case, the deputy was told that the papers would be fixed up giving him a formal appointment when he returned. This was not done, but the direction and promise had the effect to put the functions of the office in possession of the deputy, so that his acts thereunder would be valid as to third persons. "An acknowledgment by an officer de facto is good if it would be so if he were an officer de jure." Woodruff v. McHenry, 56 Ill. 218. For other authorities upon this subject, see "De Facto Officers," in 5 American and English Encyclopædia of Law, and especially the case of The State v. Carroll, a Connecticut case, there given in full.

We are of opinion that Hopson was acting un color of authority in taking the acknowledgment, and was therefore a de facto officer authorized to take the acknowledgment. All the parties recognized him as such. He had taken Mrs. Thompson's acknowledgment before, under a valid appointment, and she doubtless thought he was a legal officer before whom she could acknowledge the deed, and one who would give her all the protection the law afforded. The acknowledgment being valid, it follows that she had no title to the land in dispute, and therefore could not maintain this suit.

The judgment of the court below ought to be affirmed.

Affirmed.

Adopted May 10, 1892.