Sun Oil Co. v. Rhodes ( 1934 )

April 29, 1932, P. Rhodes and wife, Frances Rhodes, executed and delivered to A. C. Garvey a deed conveying an undivided onehalf of the oil, gas, and other minerals in 70 acres of land, a part of the Henry Gunter survey in Polk county, Tex., which at that time was occupied by them as a homestead. This deed was acknowledged before C. A. Richardson, justice of the peace and ex officio notary public. The certificate of acknowledgment is regular on its face showing acknowledgment by P. Rhodes and his wife, Frances Rhodes. O. C. Garvey was the agent of and acting for the Sun Oil Company in procuring said deed and on May 5, 1982, transferred all rights under said deed to the Sun Oil Company.

This suit was filed by P. Rhodes and his wife on June 1, 1933, for the cancellation of said mineral deed on the ground of fraud in the procurement of same. It was alleged that said agent of said oil company represented to plaintiffs that he desired to purchase from them one-half of their royalty in their land for the sum of $1 per acre, and they, believing that one-half of the royalty meant one-half of one-eighth of all minerals in the land, agreed to sell same on that basis, but that said agent, after their said verbal agreement, fraudulently so worded said deed as to make it convey a full one-half interest in all the minerals in said land; that neither of them could read and not knowing that the deed was different from their verbal agreement, and not being able to read the deed as so prepared, and having full confidence in said agent, who was well known to them and whom they trusted, signed the deed; that said deed as so drawn by said agent was not read or explained to them by either said agent or by the notary who took their acknowledgment to said deed, but that they acknowledged same under the belief that it conveyed the one-half of their royalty, or onehalf of one-eighth of the minerals in the land instead of a full one-half interest in said minerals.

The defendant, Sun Oil Company, answered by general denial.

The case was tried to a jury, but after the evidence was closed, the court instructed the jury to return a verdict for plaintiffs on the ground that the undisputed evidence showed that C. A. Richardson, the notary who took the acknowledgment of plaintiffs, did not explain the deed to Mrs. Rhodes, wife of P. Rhodes, before she signed it, he merely asking her whether she understood, and she answering that she did, wherefore the deed was void. The instructed verdict was accordingly returned and judgment entered canceling and annulling the deed from plaintiffs to 0. C. Garvey and the deed from Garvey to the Sun Oil Company, and divested all the right and title to said minerals apparently vested in the Sun Oil Company by virtue of said deed out of said defendant company and vesting same in plaintiffs, P. Rhodes and his wife, Frances Rhodes.

Motion to set aside the verdict of the jury and the judgment of the court was overruled, and defendant appeals.

Appellant presents three assignments of error which present, in substance, the same ground for reversal. We shall consider them altogether.

It is contended that the only ground alleged for cancellation of the deeds is that the execution of the deed by plaintiffs to Garvey was induced by the fraud of the agent of the oil company. That fraud, as alleged in that particular, was the only issue, and the court was without authority to consider the validity of the acknowledgment of Mrs. Rhodes to the deed because of the failure of the notary taking her acknowledgment to comply with the law in taking such acknowledgment, for in that the acknowledgment being regular on its face, and there being no pleading by plaintiffs alleging the lack of compliance with the law by the notary taking the acknowledgment, same could not be considered.

Appellees insist that their pleadings are sufficient to and do challenge the validity of the acknowledgment of Mrs. Rhodes. We think appellees' contention is sound. They allege in their petition that:

"Plaintiffs were neither able to read nor write and being told by defendant's said agent that said written agreement was what the parties had agreed upon verbally, such representation being falsely and fraudulently made by defendant's agent, but being believed and relied upon by plaintiffs, they were thus induced to sign such instrument, believing at the time of signing same they were conveying only 1/16th of their mineral rights in their land, when as a matter of fact, as they have since been informed by others who can read, they conveyed 1/2 of their entire mineral rights, and neither the notary who came to plaintiffs' house with defendant's said agent and who took plaintiffs' acknowledgments, nor anyone else, read said instrument to plaintiffs nor made any explanation thereof, and plaintiffs signed same only because they relied upon the false and fraudulent representations made by defendant's said agent as aforesaid, and which they believed and relied upon, but had they known the nature and character of the instrument they were signing and that they were executing an absolute deed to 1/2 of their mineral rights and that they had thereby lost the right to lease same, and that too without any obligation on the part of defendant of developing same, they would under no consideration have signed same."

Appellant did not specially except to the sufficiency of the pleadings relative to the failure of the notary to explain the deed to Mrs. Rhodes. In the absence of such exception, we think the pleading, when given all the intendments to which it was entitled, was sufficient to admit the testimony complained against. Furthermore, there was no objection to the evidence when offered.

The record discloses and it is admitted that O. C. Garvey was the agent of the defendant, Sun Oil Company, and that he was acquiring the mineral rights for the said company. The plaintiffs were quite old, P. Rhodes being eighty-four and his wife near that. Garvey had known them all his life. He knew they could not read or write. Richardson, the officer who took the acknowledgment, was employed and paid by the defendant oil company to go with Garvey and take acknowledgments to instruments. He was paid $3 per day regardless of whether he took acknowledgments every day or not. The record is without dispute that Richardson, the notary, did not read the deed to either P. Rhodes or his wife, nor did he explain the instrument to either of them. Richardson said that he did not understand it himself. But he said that they understood it because George Rhodes, a son, and John Kirwin, a son-in-law of Rhodes, read the deed and explained it to plaintiffs. He said this took place while he and Garvey were eating dinner, and that Rhodes and son and son-in-law were just outside of the dining room on the porch and he heard them talking about it, but when pressed as to the whereabouts of Mrs. Rhodes at that time, said Mrs. Rhodes might have been in the kitchen, but that Mr. Rhodes was out there with them. Both Rhodes and his wife testified that Richardson did not either read the deed to them or explain it to them. They merely signed the deed at the request and upon the statements of Garvey.

Article 6605, R.S. 1925, provides:

"No acknowledgment of a married woman to any conveyance or other instrument purporting to be executed by her shall be taken, unless she has had the same shown to her, and then and there fully explained by the officer taking the acknowledgment on an examination privily and apart from her husband; nor shall he certify to the same, unless she thereupon acknowledges to such officer that the same is her act and deed, that she has willingly signed the same, and that she wishes not to retract it."

The provisions of the statute, supra, regulating the acknowledgment of married women are mandatory, and in an action to cancel a deed to the homestead where the contents of the deed were not explained to the grantor's wife by the notary taking her acknowledgment as required by the statute, that fact of itself is sufficient to authorize the cancellation of the deed. Stephenson v. Arceneaux (Tex.Civ.App.) 227 S.W. 729.

While it is true that plaintiffs alleged fraud on the part of defendant's agent, Garvey, in the procurement of the execution of the deed, in that he falsely represented to them that the deed which he had prepared to carry out their verbal agreement of sale was in accordance with said agreement, when in fact it conveyed an entirely different and much larger interest in the mineral estate than they had agreed to sell, still fraud, as we consider plaintiffs' pleadings, was also charged in procuring the acknowledgment of plaintiffs to the deed, in that they charged that defendant's said agent knew that neither of them could read or write, and knowing this did not read the deed to them or have the notary, who took their acknowledgments to the deed, do so, and that neither said agent nor the notary explained to them the contents of the deed, and said agent and the notary and plaintiffs being together all of the time at plaintiffs' home when and where the deed was signed and the acknowledgments taken, the acts of said agent and said notary were in fraud of their rights, and thus vitiated and rendered void the conveyance. Appellant was present in the person of its agent, Garvey, all the time and had full knowledge of what transpired. That being true, when these facts were shown, there was no question of fact to be presented to the jury, for the circumstances of the signing of the deed, and the failure of the notary to take the acknowledgment of Mrs. Rhodes to the deed in the manner required by law, rendered the deed void, and the instructed verdict was proper.

The judgment is affirmed.