Keller v. Downey

161 S.W.2d 803

Opinions

On the 8th day of February, 1929, appellee, Mrs. Clara May Downey, joined by her husband and her mother, Mrs. Grace C. Ruby, executed to appellant, Mrs. Grace Keller, as a gift a warranty deed conveying to her 76.52 acres of land out of the Thomas Choate League in Harris county, Texas. The deed was executed in Montgomery county, Maryland; the certificate of acknowledgment of appellee, in all respects regular as to form, was by J. J. Shoemaker, a notary public in and for Montgomery county, Maryland.

This suit was instituted by appellee in the statutory form of trespass to try title against appellants, Mrs. Keller and Humble Oil Refining Company, to recover the 76.52 acres of land above referred to. On the eve of the trial, appellee filed her affidavit that the deed was void as to her for the reason that when she signed it she was a married woman, and did not appear before the notary public for the purpose of acknowledging it, and that his certificate that she appeared before him personally was false. Appellants answered by general demurrer, general denial, and plea of not guilty; Mrs. Keller answered further by way of cross action in the form of the statutory action of trespass to try title, and by pleas of limitation. On the verdict of the jury, judgment was for appellee for an undivided one-half interest in the land in controversy, and cancelling her deed to Mrs. Keller of date the 8th day of February, 1929, and the mineral lease held by Humble Oil Refining Company under Mrs. Keller, on the land in controversy, insofar as these instruments affected appellee's title to the land in controversy. Appellants duly prosecuted their appeal to the Galveston Court of Civil Appeals; the case is on our docket by order of transfer by the Supreme Court.

The jury found that appellee did not at any time appear in person before the notary public, J. J. Shoemaker, for the purpose of acknowledging the deed in issue. Appellants attack this finding as being without support in the evidence, and as being against the great weight and preponderance of the evidence. Appellee, her husband, and her mother testified that she signed the deed in her mother's bedroom and that the notary was not present. The evidence offered by appellee fully supports the verdict of the jury. Lummus v. Alma State Bank, Tex. Civ. App.4 S.W.2d 195; Chester v. Brietling, 88 Tex. 586, 32 S.W. 527; Robertson v. Vernon Tex.Com.App., 12 S.W.2d 991, approving the holding in Tex. Civ. App. 3 S.W.2d 573; Putman v. Coleman, Tex. Civ. App. 277 S.W. 213. Under these authorities, whether or not appellee appeared before the notary for the purpose of acknowledging the deed was to be determined on the preponderance of the evidence, like the general fact issues in all civil cases. To support this issue, appellee was not required to attack the notary's certificate by alleging fraud, coercion or undue influence; appellants cannot, on this issue, invoke the proposition that the truth of the recitals in the notary's certificate can be attacked only by evidence clear, cogent and convincing.

Appellants contend that, even if the jury's finding has support in the evidence that appellee did not appear before the notary for the purpose of acknowledging the deed, yet, on the undisputed evidence, on the verdict of the jury the notary's certificate "was not entirely fraudulent" but was made "at her implied request as the result of a previous understanding or established custom to dispense with her personal appearance." On Mrs. Downey's evidence, she never appeared before the notary for the purpose of acknowledging the deed in issue, and never asked him to take her acknowledgment to this deed; she testified to a general custom whereby this notary would affix his certificate to her deeds when presented to him with her genuine signature thereto. These facts did not invoke the jurisdiction of the notary to take appellee's acknowledgment; his jurisdiction not being invoked, his certificate was void, and without appellee's acknowledgment thereto the deed in issue was void as to her. Gulf Production Co. v. Continental Oil Co., Tex. Sup.,132 S.W.2d 553; Robertson v. Vernon, supra.

Appellee's father died in February, 1903. On her application filed in April, 1903, appellee's mother, Mrs. Ruby, was appointed statutory community survivor of the community estate left by her deceased husband, John H. Ruby, appellee's father, and duly qualified as such. As her father's heir, appellee inherited a one-half interest in the community estate, subject to the community administration; the property in issue was a part of the community estate. In 1907, in a partition suit filed by appellee, by her next friend, in district court of Harris county against her mother, judgment was entered partitioning the estate, but not partitioning the land in controversy. The judgment of partition recited that Mrs. Grace C. Ruby, the widow of John H. Ruby, had qualified as survivor of the community estate of John H. Ruby; the judgment further recited that Mrs. Ruby "has fully administered upon said community estate and has paid off all the debts existing against it and has discharged all of the expenses incurred by her in the administration of the estate. * * * It is further ordered, adjudged and decreed by the Court and the court so orders, adjudges and decrees that the minor plaintiff, Clara May Ruby do have and recover from this defendant, Grace C. Ruby, the sum of four thousand two hundred and Fifty-four dollars ninty-two ($4,254.92) cents as her share of the money in the hands of the defendant, belonging to the community estate of John H. Ruby, deceased, and that upon the defendant filing with the Clerk of this court a receipt for said amount from the guardian of the estate of the said Clara May Ruby, when one shall be appointed and qualified that the said defendant, Grace C. Ruby, and the surety on her bond as survivor of the community estate of John H. Ruby, deceased, be relieved from all further liability in the matter of said community estate." No additional order was shown, closing the administration, and there was no evidence that Mrs. Ruby ever paid the judgment or that the "receipt" was filed. On these facts, appellants contend that the deed in issue, being valid as to Mrs. Ruby, must be construed as conveying the full title to the land in controversy independent of appellee's joinder therein, since it must be conclusively presumed that Mrs. Ruby executed it "in her capacity of community survivor." This contention is denied. The district court of Harris county, in the partition suit of 1907 by appellee against her mother, had jurisdiction to close the administration. Cox v. Gaines, Tex. Civ. App. 45 S.W.2d 444. Having the power to close the administration, and having found that all debts of the administration had been paid, and that the estate had been fully administered, the court ordered the administration closed, subject to the filing of receipt by appellee's guardian to be appointed in the future. It is our conclusion on these facts that this judgment must be construed as closing finally the administration. Henderson v. Lindley, 75 Tex. 185,12 S.W. 979; Stewart v. Morrison, 81 Tex. 393, 17 S.W. 15, 26 Am.St.Rep. 821. The failure of appellee to show that she or her guardian filed the receipt called for by the judgment did not leave the administration open. Again, the deed in issue being a deed of gift, appellants had the burden of showing that Mrs. Ruby — if the administration was not closed by the judgment of partition — had the power to give the property to Mrs. Keller, acting in her capacity of survivor of the community. Bordages v. Stanolind Oil Gas Co., Tex. Civ. App.129 S.W.2d 786. The facts of this record affirmatively deny her right, as community survivor, to give the property away. Leatherwood v. Arnold,66 Tex. 414, 1 S.W. 173; Sparks v. Spence, 40 Tex. 693, 694.

On the following facts found by the jury, appellants assert that appellee was estopped to assert the invalidity of the deed: When appellee signed the deed in issue she knew that its purpose was to convey the title to the land in controversy to Mrs. Keller, and that it would be delivered to Mrs. Keller with her signature thereon and with her acknowledgment attached thereto in due form of law; that at the time she signed the deed she ought to have known that some person or corporation would likely purchase the land in controversy from Mrs. Keller; that at the time she signed the deed there was a custom between her and the notary that, without her personal appearance before him, he would attach to deeds bearing her genuine signature his certificate of acknowledgment in due form of law, and on that custom he so attached his certificate; that when appellee signed the deed she understood that it would be sent to the notary under this general custom; that when she signed the deed in issue, she did not know that she had any interest in the land in controversy. Appellants' proposition of estoppel is denied. To estop a married woman, where her acknowledgment is taken without her personal appearance before the notary, she must commit some act of positive, affirmative fraud, and the facts found by the jury do not constitute positive, affirmative fraud. Daniels v. Mason, 90 Tex. 240, 38 S.W. 161, 59 Am.St.Rep. 815; Huss v. Wells, 17 Tex. Civ. App. 195, 44 S.W. 33. The facts found by the jury, invoked by appellants on this proposition of estoppel, fall reasonably within the facts of Gulf Production Co. v. Continental Oil Co., supra; Owens v. New York Texas Land Co.,11 Tex. Civ. App. 284, 32 S.W. 189; Putman v. Coleman, Tex. Civ. App.277 S.W. 213; Cosgrove v. Nelson, Tex. Civ. App. 269 S.W. 891.

Appellants make the contention, on the undisputed evidence, that at the time this suit was filed appellee had already received more than one-half of the net community estate of her mother and her deceased father. This contention is denied, even if it be conceded that appellants have the right to invoke it. Most of the property, which appellants under this proposition claim that appellee received, was the property of Mrs. Ruby, awarded her by the partition judgment; the transfer of this property by her to appellee as a gift could not constitute an extinguishment of appellee's title to the property in controversy.

We overrule the contention that appellants should be quieted in their title to the property in controversy on the doctrine of equitable partition. Necessary parties were not in the case to support equitable partition — Mrs. Ruby was not a party nor were her grantees of the estate. The burden of alleging facts raising this issue rested upon appellants. Simpson-Fell Oil Co. v. Stanolind Oil Gas Co.,136 Tex. 158, 125 S.W.2d 263, 146 S.W.2d 723; McGee v. Stark, Tex. Civ. App. 127 S.W.2d 589. The facts do not constitute equitable partition. Many years after the execution of the deed in issue, Mrs. Ruby conveyed to appellee a tract of 49 acres of land which was not included in the judgment of partition. The value of this land was not shown in relation to the land in controversy as of the time this case was tried, and that was appellants' burden. Thomas v. Southwestern Settlement Development Co., 132 Tex. 413, 123 S.W.2d 290. Holding under appellee's void deed, appellants could not claim her title on this theory, simply by showing that the mother had conveyed appellee a tract of 49 acres of land belonging to the community estate, even if that issue was available to them under their pleading and without necessary parties. This proposition called for a complete audit and accounting of the entire estate. As a corollary of this proposition, appellants contend that appellee in her action of trespass to try title could not recover the land in issue "because she did not discharge the burden cast on her by law to show, as against those rightfully in possession as admitted co-owners, just what her undivided interest was." Appellee clearly established her title to one-half interest in the property as an heir of her father. The burden rested on appellants, by way of defense, to plead facts in rebuttal of appellee's prima facie title. But if this issue was available to appellants without an affirmative plea, nothing was shown which, as a matter of law, reduced appellee's interest in the land in controversy; not having asked for its submission to the jury, the issue was waived.

On their theory of equities between appellee and her mother in the division of the estate, no conclusive presumption can be invoked by appellants that the conveyance to appellee by her mother of the 49 acres of land referred to was by way of advancement. At the time appellee signed the deed in issue and at the time her mother conveyed her the 49 acres of land, appellee did not know that she owned an interest in the land in controversy. On the undisputed evidence, the tract of 49 acres of land, in fact, was conveyed to appellant as a gift to her by Mrs. Ruby, with no intent on the part of either of them that the gift was by way of an advancement out of the community. Mrs. Ruby had been discharged as community survivor in 1907, and was under no obligation to account to appellee on the community estate. Spark v. Spence, supra, denies appellants the right to invoke the proposition of advancement.

Appellee was not barred from offering her documentary evidence on Mrs. Keller's objection — Humble Oil Refining Company not joining in the objection — that she did not timely file her abstract of title. At the commencement of the trial, to meet Mrs. Keller's objection, with leave of the court, appellee filed an amended abstract of title containing the very instruments objected to. The court did not err in granting this permission. Art. 7379, R.C.S. 1925.

Appellee's testimony that she did not know of her interest in the land in controversy at the time she signed the deed in issue was admissible to rebut appellants' theory against her of active intentional fraud. 17 Tex.Jur. 138. The testimony of Enjor Christenson that appellee appeared before Mr. Thomas, a notary public, at a later date in connection with a different deed was not subject to the objection that it was immaterial. At the time the objection was made the same testimony was already before the jury without objection, and no motion was made to strike the prior testimony. Johnson v. Hodges, Tex. Civ. App. 121 S.W.2d 371. Appellants did not object to the testimony on the ground that it was prejudicial; the admission of immaterial testimony is not error unless it is calculated to influence the minds of the jury. Appellants by their cross examination of the witness brought out substantially the same facts covered by appellants' objection, thereby waiving their exception of immateriality. Gulf States Sec. Life Insurance Co. v. Edwards, Tex. Civ. App. 109 S.W.2d 1125.

A diary was in evidence containing a material statement. Appellants' theory was that the entry in the diary was made as of the date of the deed in issue, while appellee contended that the entry was made subsequent to the filing of this suit in 1939. No testimony was offered on the issue of the age of the writing. Appellants' counsel argued to the jury, without supporting evidence, that he saw the entry shortly after the diary was discovered, and if the writing had not been old, he could have determined that fact. In reply, appellee's counsel stated to the jury in effect that he had consulted handwriting experts, and had learned that the age of writing could not be determined by an examination. The argument of appellees counsel was "invited error," being directly responsive to the argument of appellants' counsel. 41 Tex.Jur. 798; D. H. Truck Line v. Lavellee, Tex. Civ. App. 7 S.W.2d 661; Crim v. Hunter, Tex. Civ. App. 97 S.W.2d 979; Dallas Joint Stock Land Bank v. Lancaster, Tex. Civ. App. 100 S.W.2d 1029, 1033. The argument was not objected to at the time it was made, but for the first time on motion for a new trial; its injurious effect, if any, could have been removed by an instruction by the court, which he certified he would have given had the objection been made. On this statement, the argument was not error. 41 Tex.Jur. 821.

It follows that the judgment of the lower court should be in all things affirmed, and it is accordingly so ordered.

Affirmed.

On Rehearing. Since we filed our original opinion, the Supreme Court has withdrawn its opinion in Gulf Production Co. v. Continental Oil Co., 132 S.W.2d 553, cited by us, by substituting its opinion reported in 164 S.W.2d 488. But the propositions upon which we cited that case were not modified nor withdrawn in the holdings of the Supreme Court in its new opinion. In further support of our conclusion that Mrs. Clara May Downey, appellee, was not estopped on the facts found by the jury to assert the invalidity of the deed in issue, we cite Burkhardt et ux. v. Lieberman et al., Tex.Com.App., 159 S.W.2d 847.

On a careful review of appellants' motions for rehearing, it is our conclusion that they should be overruled, and it is accordingly so ordered.