Citation Numbers: 66 S.W. 103, 27 Tex. Civ. App. 152
Judges: STEPHENS, ASSOCIATE JUSTICE.
Filed Date: 11/2/1901
Status: Precedential
Modified Date: 1/13/2023
The statement in the brief of appellants of the nature and result of the suit contains nothing superfluous and leaves nothing to be added, and we therefore adopt it.
The first complaint is that the evidence was not sufficient to warrant the verdict finding the deed from J.B. Thetford and wife to Brook Beall to be a forgery as to the wife. This deed purported to have been duly executed by Thetford and wife in December, 1888, and was placed on record in January, 1889. Mrs. Thetford, testifying by deposition, *Page 153 positively denied the execution of the deed so far as she was concerned; but the officer before whom the acknowledgment appears to have been taken, and who had no interest in the matter, testified by deposition quite as positively to the contrary, stating from memory the circumstances attending the execution of the deed, and showing a full compliance with the statute providing for the execution of deeds by married women.
Numerous cases have been cited from other States, and from the Supreme Court of the United States, to sustain the proposition that the testimony of the wife alone denying the execution of her deed is not sufficient to overcome the certificate of the officer showing its execution in due form. As said in the Cyclopoedia of Law and Procedure, volume 1, page 625, "It is very generally held that the testimony of the grantor unsupported and uncorroborated is not sufficient to overcome a certificate regular on its face, especially where the certificate is supported by the testimony of the officer who took the acknowledgment, or by other competent evidence," in support of which numerous cases are there cited. A distinction, however, has been taken between the effect of a certificate of acknowledgment made where the wife appears before the officer and one made where she does not. Wheelock v. Cavitt,
Not finding it necessary to pass on the sufficiency of the evidence, we proceed to consider the second assignment of error, reading:
"The court erred in rendering judgment upon the verdict, the said verdict being insufficient to support the judgment in this: The fact that Sarah A. Thetford did not join in the execution of the deed does not render the same void as to the plaintiffs, nor as to these defendants, it appearing that the land was community property; that both husband and wife had died, and that no constituent member of the family remained."
The following authorities cited by appellants seem to sustain this assignment: Marler v. Handy,
As to how the case would stand if the deed to Brook Beall was one made merely for the purpose, in connection with the deed of trust subsequently executed, of obtaining a loan by J.D. Thetford on the homestead, of which there was some evidence, we need not consider, since no relief was sought upon that ground, the allegations of the petition being confined to the issue of forgery.
Upon the ground stated in the second assignment of error, and on the undisputed facts, the judgment is reversed and here rendered for appellants, giving to the mortgage company a foreclosure of its lien to secure the sums adjudged against Brook Beall, as to whom the judgment remains undisturbed.
Reversed and rendered.
It is insisted, on the assumption that the issue of Thetford's fraud was involved, that the cases cited by us as authority for the judgment we have rendered are only applicable where the husband acts in good faith towards the wife, and quotations from opinions in one or more of these cases are cited to sustain this view. But in using the language quoted the court had under consideration the effect upon the homestead rights of the wife of the husband's manner of exercising his superior right as the head of the family to abandon one homestead for another.
There is the following difference, however, between this case and that of Marler v. Handy,
We have concluded, upon closer examination of these opinion and more thorough consideration of the question involved, that we should now hold that the deed of John B. Thetford, which, as before seen, the jury found to be a forgery as to the wife, was not only void as to her but that it only became operative, by way of estoppel, against his heirs, after the homestead ceased. This did not occur till Mrs. Thetford died, when, eo instante, an undivided half thereof, it being community property, descended to her children, who would not be estopped by the warranty deed of their father from asserting a title derived by inheritance from their mother in the absence of a finding that they had received from their father's estate enough property to render them liable on his warranty. If the homestead had been abandoned during the lives of Thetford and wife, he might then have conveyed the entire property, *Page 156
and the case of Marler v. Handy would seem to be authority for holding that a deed previously made by him should be given the same effect by way of estoppel. As was said by Justice Brown in that case of the decision in Irion v. Mills,
It follows, therefore, that the issue of fraud on the part of J.B. Thetford becomes immaterial, and that the recovery by appellees, who were plaintiffs below, should be limited to the one-half interest inherited from their mother, and that the foreclosure given the mortgage company should cover only the other half interest; that is, on the assumption that the finding that the deed was a forgery as to Mrs. Thetford must be sustained, and we think, as intimated in the original opinion, it must.
In the last ground of the motion for rehearing, complaint is made that we erred in finding that no relief was sought on the ground that the deed to Brook Beall was but a pretended sale of the homestead for the purpose of obtaining a loan, and we are referred to the supplemental petition for allegations pleading that issue, but no such allegations are there to be found. Evidently counsel who prepared the motion mistook the contents of the supplemental pleading. That would be a different cause of action from the one pleaded and would be barred by limitation. Hence the cause need not be remanded to have it pleaded.
The rehearing will be granted and the judgment reformed, so as to limit the recovery of appellees to an undivided half interest in the land *Page 157 sued for, but will be reversed and here rendered denying any further recovery and granting to the mortgage company a foreclosure of its lien, with costs of its cross-action, on the other half interest, but in other respects the judgment will stand affirmed, with costs of the appeal taxed against appellees.
Writ of error refused.