Ariola v. Newman

Court of Appeals of Texas

Ariola v. Newman

113 S.W. 157, 51 Tex. Civ. App. 617, 1908 Tex. App. LEXIS 282

CourtCourt of Appeals of Texas

DecidedOctober 14, 1908

StatusPublished

Cited by8 cases

This text of 113 S.W. 157 (Ariola v. Newman) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ariola v. Newman, 113 S.W. 157, 51 Tex. Civ. App. 617, 1908 Tex. App. LEXIS 282 (Tex. Ct. App. 1908).

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Opinion

JAMES, Chief Justice.

This action is in trespass to try title. The facts are these: The land was patented to Wm. Goins as assignee. His administrator conveyed to Geo. 'Clevinger in 1860. Clevinger, in 1872, conveyed to H. C. Hancock. Hancock’s administrator conveyed to N. Buckland in 1880. Following this the plaintiff’s chain of title consists of a deed from N. Buckland and wife to Newman Brothers & Eivit in 1881; deed from Albert A.-Eivit and wife to J. C. and L. Newman in 1881, and deed from J. C. Newman and wife to L. Newman, the plaintiff, in 1882. The members of the firm of Newman Brothers & Eivit were shown to have been J. C. Newman, L. Newman and A. Eivit.

The defendants took possession of the land about December 16, 1906, on which date a deed was executed by Ben Lazarine to defendants, and defendants have been in possession ever since. This action was filed in June, 1907.

The deeds from Clevinger down to plaintiff, as introduced, were from the records, they having been recorded over ten years prior to the entry and deed of defendants, and to three of these, as proper evidence, appellants complain in their brief. The assignments of error question the sufficiency of the acknowledgments to three of the deeds, and also question the applicability of article 2312, Eevised Statutes, as amended by the Thirtieth Legislature (Acts of 1907, p. 308) to them, as permitting such evidence, inasmuch as defendants had entered into possession of the land before suit was brought, and their claim so asserted was adverse and inconsistent to the one evidenced by said instruments in the sense of the Act. They also assert that, to construe said statute as applying to said three deeds, is to give it a retroactive effect, which is unconstitutional, the Act having been passed after defendants had taken possession of the land under their deed from Lazarine.

We will consider first the assignments which go to the acknowledgments. Hnder them there is a single proposition to which appellants should be confined, and which we copy:

“A deed is not properly acknowledged, and is improperly admitted *619 to record, when executed by a man and wife, unless the man acknowledges, in substance, that he executed the same for the purposes and considerations therein expressed; and if the wife acknowledged it, the same must show her privy examination and explanation of the instrument to her, and that she, understanding it, voluntarily signed the same for the purposes and consideration therein expressed as her act and deed, and that she did not wish td retract it.”

The first deed which is dealt with by the brief, through the above proposition, is that from N. Buckland and wife to Newman Brothers & Bivit. The objection or proposition, so far as it relates to N. Buck-land, is that his acknowledgment should have shown that he executed the instrument for the purposes and consideration therein expressed. This objection is not valid. Butler v. Brown, 77 Texas, 343. So far as it relates to Mrs. Buckland, the proposition is immaterial to the title, for her signature appears not to have been essential to a conveyance of the land.

The second of said deeds is that from Albert A. Bivit and wife to J. C. and L. Newman. What is above stated applies equally to this, the proposition being the same, and also to the third, which is the deed from J. C. Newman and wife to L. Newman.

If the said acknowledgments should be defective in any other particular appellants are not entitled to have them considered here, as they are confined to a consideration of the propositions they make. When tested by the proposition the acknowledgments do not show defective registration.

We are also of opinion, from the fact that said instruments had been actually recorded for a period of ten years prior to defendants’ assertion of title (prior both to the execution of the isolated deed from Lazarme to defendants and to defendants’ entry), the acknowledgments, in so far as they appear to have been required for purposes of conveyance and registration, to wit, those of the husband, were cured by said Act, if defective; and further, that no constitutional right of defendants was affected by the enactment of such rule of evidence.

Affirmed.

Writ of error refused.

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JAMES, Chief Justice.

This action is in trespass to try title. The facts are these: The land was patented to Wm. Goins as assignee. His administrator conveyed to Geo. 'Clevinger in 1860. Clevinger, in 1872, conveyed to H. C. Hancock. Hancock’s administrator conveyed to N. Buckland in 1880. Following this the plaintiff’s chain of title consists of a deed from N. Buckland and wife to Newman Brothers & Eivit in 1881; deed from Albert A.-Eivit and wife to J. C. and L. Newman in 1881, and deed from J. C. Newman and wife to L. Newman, the plaintiff, in 1882. The members of the firm of Newman Brothers & Eivit were shown to have been J. C. Newman, L. Newman and A. Eivit.

The defendants took possession of the land about December 16, 1906, on which date a deed was executed by Ben Lazarine to defendants, and defendants have been in possession ever since. This action was filed in June, 1907.

The deeds from Clevinger down to plaintiff, as introduced, were from the records, they having been recorded over ten years prior to the entry and deed of defendants, and to three of these, as proper evidence, appellants complain in their brief. The assignments of error question the sufficiency of the acknowledgments to three of the deeds, and also question the applicability of article 2312, Eevised Statutes, as amended by the Thirtieth Legislature (Acts of 1907, p. 308) to them, as permitting such evidence, inasmuch as defendants had entered into possession of the land before suit was brought, and their claim so asserted was adverse and inconsistent to the one evidenced by said instruments in the sense of the Act. They also assert that, to construe said statute as applying to said three deeds, is to give it a retroactive effect, which is unconstitutional, the Act having been passed after defendants had taken possession of the land under their deed from Lazarine.

We will consider first the assignments which go to the acknowledgments. Hnder them there is a single proposition to which appellants should be confined, and which we copy:

“A deed is not properly acknowledged, and is improperly admitted *619 to record, when executed by a man and wife, unless the man acknowledges, in substance, that he executed the same for the purposes and considerations therein expressed; and if the wife acknowledged it, the same must show her privy examination and explanation of the instrument to her, and that she, understanding it, voluntarily signed the same for the purposes and consideration therein expressed as her act and deed, and that she did not wish td retract it.”

The first deed which is dealt with by the brief, through the above proposition, is that from N. Buckland and wife to Newman Brothers & Bivit. The objection or proposition, so far as it relates to N. Buck-land, is that his acknowledgment should have shown that he executed the instrument for the purposes and consideration therein expressed. This objection is not valid. Butler v. Brown, 77 Texas, 343. So far as it relates to Mrs. Buckland, the proposition is immaterial to the title, for her signature appears not to have been essential to a conveyance of the land.

The second of said deeds is that from Albert A. Bivit and wife to J. C. and L. Newman. What is above stated applies equally to this, the proposition being the same, and also to the third, which is the deed from J. C. Newman and wife to L. Newman.

If the said acknowledgments should be defective in any other particular appellants are not entitled to have them considered here, as they are confined to a consideration of the propositions they make. When tested by the proposition the acknowledgments do not show defective registration.

We are also of opinion, from the fact that said instruments had been actually recorded for a period of ten years prior to defendants’ assertion of title (prior both to the execution of the isolated deed from Lazarme to defendants and to defendants’ entry), the acknowledgments, in so far as they appear to have been required for purposes of conveyance and registration, to wit, those of the husband, were cured by said Act, if defective; and further, that no constitutional right of defendants was affected by the enactment of such rule of evidence.

Affirmed.

Writ of error refused.

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113 S.W. 157, 51 Tex. Civ. App. 617, 1908 Tex. App. LEXIS 282, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ariola-v-newman-texapp-1908.

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