Kenley v. Robb

193 S.W. 375, 1916 Tex. App. LEXIS 1343

Opinions

BROOKE, J.

This was an action in trespass to try title, brought by plaintiff in error against defendants in error. The cause was tried before the court without a jury, and resulted in a judgment that the plaintiff take nothing, the conclusion of the court being based upon the finding that there was an outstanding title, which prevented plaintiff’s recovery.

Complaint is made by the first assignment of error, as follows:

“The court erred in holding that the certificate of acknowledgment to the transfer of the land certificate from John Andrews to William Penn was insufficient to charge constructive notice to defendants of the transfer of said land certificate, because said certificate of acknowledgment is valid, in due form, and in substance complies with the statute in effect at the date same was taken, and was sufficient to and did charge all of the defendants with constructive notice of the transfer of said land certificate from John Andrews to William Penn.”

There was offered in evidence a certificate from the state of Texas to John Andrews to the land in controversy. Indorsed on this certificate was a transfer from John Andrews to , William Penn, under whom plaintiff claims. The certificate of acknowledgment to this transfer reads as follows:

“State of Texas, Travis County.

“Before me, N. C. Raymond, a notary public in and for said county, duly commissioned and sworn, personally appeared B. F. Wright, who is represented to me as the identical B. F. Wright whose signature appears as a witness to the transfer hereto annexed, who upon his oath says that he was present and saw John Andrews sign the same as his voluntary act and deed, and that he acknowledged that he did so for all the uses, purposes, and considerations therein set forth and expressed; that he signed the same as a witness at the request of said parties thereto.”

The trial court found as follows:

“I conclude as a matter of law that the transfer from John Andrews to William Penn was not properly authenticated for registration; that, if it should be held that such transfer was properly authenticated for registration, such registration was insufficient to charge purchasers under the heirs of John Andrews with constructive notice of any rights to the land in controversy in William Penn or others holding under him.”

Said transfer of said certificate was recorded in the deed records of Trinity county on the 23d day of February, 1859, and rerecorded on August 9,1915. Plaintiff claimed through William Penn, under said transfer of said certificate. Defendants claimed under conveyance from the heirs of John Andrews, dated November 30,1876.

A brief review of tbe authorities on the proposition presented, will be made.

Justice Wheeler, in the case of Been v. Wills, reported in 21 Tex. 615, says:

“The objection is that the certificate of probate does not state that the witness signed as a witness at the request of the grantor. We do not think it essential to the validity of the registry that it should so state. That would be a more formal compliance with the direction of the statute in making the certificate. But the statute does not prescribe the form of the certificate, but only that the officer taking the proof shall make a certificate thereof. All that can be required is that the certificate shall contain the substance of the proof; and if it contains all that is essential to prove the due execution of the deed, it must be deemed a substantial compliance with the requirement of the statute. It is not essential to the proof of the due execution of the instrument that the witness should depose to the fact of his having signed at the request of the grantor. The presumption is that the subscribing witness did so sign, and the statement would add nothing to the legal effect of the certificate or the proof. In order to render the copy of a deed admissible in evidence under the statute, * * * it must have been admitted to record upon the requisite acknowledgment or proof; and the certificate of probate should afford evidence of the sufficiency of the proof. But if it does so substantially, though informally, that is all that ought to be required. The numerous adjudged cases upon the sufficiency of such certificates arc collected in the note to Philip’s Evidence, to which we have been referred by counsel for the appellant. ‘All that is required (it is there said) in respect to the frame of these certificates is a substantial compliance with the law under which they are made. When substance is found, it is neither the duty nor inclination of courts to jeopardize titles, in any way depending upon them, by severe criticism upon their language.’ Cow. & H. Notes, pt. 2, note 254 to page 247.

“Thus, whore a certificate of proof stated that A. B. appeared before the officer and made oath, etc., but did not say that he was a subscribing witness, yet it appearing on inspection of the deed that A'. B. was one of the subscribing witnesses, it was held by the Supreme Court of Pennsylvania that the certificate was substantially good. [Luffborough v. Parker] 12 Serg. & R. 48. So in Jackson v. Gumaer, 2 Cow. [N. Y.] 552, where it was objected to the certificate of the judge taking the acknowledgment that it did not state, as it was insisted the statute required, that he knew the grantor to bo ‘the person described in and who executed the deed,’ the certificate was held good. Chief Justice Savage said: ‘Were we called on to establish a form for such a certificate, I should certainly be for inserting that the grantor was known to the judge, or other officer taking the acknowledgment, to bo the person described in the deed; but the Legislature could not expect the officer to know that the grantor described in the deed actually executed it, otherwise than by his acknowledgment, or proof by a witness. The practice in this case has been of very general use, and the practice in this respect may perhaps amount to a construction of the act. At all events I am unwilling to say that titles which depend for proof upon certificates thus drawn are to be put in jeopardy by the allowance of such a technical objection; for I cannot but consider the acknowledging officer drawing such a certificate as possessing all the knowledge required by the statute.’ Id. [2 Cow. (N. Y.) | 567. So in McIntire v. Ward, 5 Bin. [Pa.] 296 [6 Am. Dec. 417], where an objection to the certificate of the acknowledgment of a deed' by a married woman was that it did not state that the person taking the acknowledgment did ‘read to the wife, or otherwise make known to her the full contents of the deed,’ as the statute prescribed, but that the wife ‘acknowledged the indenture of bargain and sale to be her act and deed, according to its true intent and meaning, and the land and premises therein mentioned to be bargained and sold, with all and every the appurtenances, to be the right, title, interest, estate, and property of the within named Samuel Todd, his heirs and assigns,’ it was held a substantial compliance with the statute, and therefore sufficient. Considering the whole of the certificate (the court said) it sufficiently appeared that the contents of the deed were known to the wife. She knew that the land was conveyed to Todd in fee simple, which was the essential part of the deed, and it might be fairly presumed that this was communicated to her by the justices who took her acknowledgment, although, it was said that was not material, provided it appeared that she had the knowledge. Id. [5 Bin. (Pa.)] 301, 302, per Tilghman, C. J.

“These references will suffice to show that such certificates are liberally construed, and that a substantial compliance with the law is ail that is required in these cases. And that, we think, appears by the certificate in this case. To require more might seriously jeopardize the security of titles; and there can be no good reason assigned why more should be required.”

Justice Roberts, in the case of Monroe v. Arledge, 23 Tex. 479, used the following language:

“The main questions in this case arise under the following article of the registry act of 1846 : ‘That the acknowledgment of an instrument of writing for the purpose of being recorded shall be by the grantor, or person who executed the same, appearing before some officer authorized to take such acknowledgment, and stating that he had executed the same for the consideration and purposes therein stated; and the officer taking such acknowledgment shall make a certificate thereof, and sign and seal the same with his seal of office.’ Hart. Dig. art. 2790.

“In the authentication of one of the deeds offered in evidence the word ‘consideration,’ contained in this article, was omitted, and on that account the deed was excluded from the jury as not having been duly authenticated for record. A literal compliance with the statute is not required in authenticating instruments for record, provided there has been a substantial compliance. There must always be such a compliance as meets the object of the requirement in the statute. The object sought to be attained mainly in the authentication of an instrument for record is the ascertainment of the fact that the grantor did execute it. When it is authenticated by the proof of a witness who saw it executed, it is only necessary for him to state on oath that he saw the grantor ‘subscribe the same,’ without stating anything about the consideration. 1-Iart. Dig. art. 2791. It is not necessary to the validity of a deed that the real consideration upon which it is made, should be ‘therein stated’; and indeed such is very often not the case. Nor would an acknowledgment by him for record, in strict compliance with the statute, preclude him from showing, that the consideration and purposes of the deed, were other and different from those therein stated. The material matter, then, embraced in the acknowledgment, is the execution of the deed. In this case the grantor is shown, by the certificate, to have acknowledged that he executed the deed for the purposes therein stated. The deed itself must import a consideration, if none be expressed ; and if one be expressed, it is not material that the one expressed be the one upon which it was actually made. This, then, is a formal part of the certificate, which, for the sake of regularity, should be inserted, but its omission does not invalidate the certificate. We are of opinion that the court erred in excluding the deed on account of this omission.

“Under the same article of the statute a deed •was objected to as inadmissible in evidence because the notary public, in making his certificate, said, ‘Witness my hand and seal,’ instead of ‘official seal.’ The court overruled this objection, and, as we think, correctly. The manner in which the objection is made shows that the notarial seal was impressed upon the instrument, and that it is as plainly indicated to be his ‘seal of office’ by the expression ‘his seal,’ as by that of his ‘official seal.’ The whole instrument purports to be a notarial and not a private act; and there could be no pretense that the seal used was a private seal.”

Chief Justice Roberts, in the case of Belcher v. Weaver, reported in 46 Tex. 293, 26 Am. Rep. 267, uses the following language:

“The general rule upon this subject is that there must be a substantial, though not a literal, compliance with the terms of the statute, and that, although words not in the statute are used in the place of others that are, or words in the statute are omitted, yet, if the meaning of the words used is the same, or they represent the same fact, or if the omission of a word or words is immaterial, or can be supplied by a reasonable and fair construction of the whole instrument, the certificate will be held sufficient. Monroe v. Arledge, 23 Tex. 478; Dennis v. Tarpenny, 20 Barb. [N. Y.] 376; Owen v. Norris, 6 Blackf. (Ind.) 479; [Stevens v. Doe] 6 [Blackf. (Ind.)] 476; Pardun v. Dobesberger, 3 Port. (Ind.) 389; Gregory’s Heirs v. Ford, 5 B. Mon. [Ky.] 481; Langhorne v. Hobson, 4 Leigh (31 Va.) 224.

“There may occasionally be found cases in which there has been, in following this rule, a very strict construction of the words used. Bogkin v. Rain, 28 Ala. 332 [65 Am. Dec. 349]; Ala. L. I. Co. v. Bogkin, 38 Ala. 510.

“It is contemplated by the enacting clause of the statute that after the deed has been fully explained to her, and she has declared that she signed it freely and willingly, she should then acknowledge the deed to be her act. This may be designed as a means of impressing upon her that she has not made it her deed, by having it signed previously, but that she is now doing that which makes it her deed, by acknowledging it to be her act.

“In this certificate what is termed the declaration and the acknowledgment are blended together by the expression that ‘she, Ellen Belcher, acknowledged that she signed the said deed, without any bribe, threat, or compulsion from her husband,’ etc. If we examine the whole instrument, we will find that the officer, in taking the acknowledgment of the husband, Woody Belcher, used the expression, ‘The said Belcher signed the said deed.’ He used the word ‘signed’ instead of the word ‘executed,’ which is used in the statute. Paschal’s Dig. art. 5007. He doubtless did not know the difference in the two words, but regarded them as meaning the same thing, and therefore used the word ‘signed’ in the sense, as he understood it, of ‘executed.’ So, too, when he said that the wife acknowledged that she signed the deed and wished not to retract it, he understood himself as conveying the meaning that she acknowledged that she executed the deed. To say that a person signed a deed would be understood generally by those not versed in legal phraseology as being the same as that he executed a deed.

“In addition to this, the law itself is not entirely free from confusion, not only from the important differences in the language of the enacting clause and the form prescribed, as has been shown, but also in making nominal divisions in the parts of this transaction, without any well-defined designation of the parts of it consistently adhered to in the enacting clause, and in the form; for, if what is pointed out in the privy examination, and in the declaration, has been fully performed, it might be difficult to perceive that all had not been done which wás necessary to include also a substantial acknowledgment of the deed as being her act.

“It follows, then, that any artificial distinctions being made for the purpose of showing that one of the nominal parts are not specifically embraced, or that one part is defectively stated, will not avail, if from the evident sense of the whole instrument a reasonable conclusion can be arrived at that the requisites of the law have been complied with.”

Justice Stay ton of the Supreme Court, in passing on the matter in the case of Watkins v. Hall, 57 Tex. 1, said:

“It is claimed that the court erred in permitting certain deeds to be read in evidence, because they had not been properly recorded. The .objection taken to the record of the deeds was that they had not been properly acknowledged. The form of acknowledgment, so far as brought in question in this cause, is as follows: ‘Before me, R. P. Jones, a notary public in and for said county and state, came Samuel Welchel, to me well known, and acknowledged he signed and delivered the foregoing deed for the consideration and purposes therein stated.’ It is claimed that the certificate of acknowlédgment is insufficient, in that after the word ‘known’ the words ‘to me to be the person whose name is subscribed to the foregoing instrument were not added.

“The statute gives a form for the certificate of acknowledgment which officers in taking acknowledgments should use, but it does not provide that a certificate substantially the same as that given shall not be sufficient, but, upon the contrary, provides that: ‘Any officer taking the- acknowledgment of a deed or other instrument of writing must place thereon his official certificate, signed by him, and given under his seal of office, substantially in form as hereinafter prescribed.’ R. S. 4311. The form prescribed by the statute is as follows: - ‘The State of -, County of -. Before me (here insert the name and character of the officer), on this day ¡personally appeared - -, known to me (or proved to me on the oath of —T—.-) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and considerations therein expressed.’

“The law regulating acknowledgments of instruments for record under the Revised Statutes, except in the form above set out, is the same as under the former law. R. S. 4308; Pasch. Dig. 5007. The law in force prior to the adop-tion_ of the Revised Statutes did not require the certificate of the officer before whom the acknowledgment was made to show that the person who made the acknowledgment was known to the officer taking the same; but it provided that, if such person was unknown to the officer, his identity should be proved by his own affidavit, or by witnesses known to the officer, which proof or affidavit had to be indorsed upon the instrument of writing by the officer taking the acknowledgment. Pasch. Dig. 5010. In addition to the requirements of the former law, the law now requires the certificate of the officer to show, if it be the fact, that the person making the acknowledgment is known to the officer to ■be the person whose name is signed to the instrument; and a certificate which substantially shows that fact is in compliance with the statute. In the certificates of acknowledgment objected to in this cause it is stated that the persons whose names are given were well known to the officer, and that such persons acknowledged that they signed and delivered the instruments. This declaration of the officer that the person making the acknowledgment is well known to him, the name of such person being given in the certificate, that name being the same as is signed to the instrument, coupled with the declaration that such named person, well known to the officer, acknowledged that he executed the instrument, identifies the party so executing; and such a certificate is a substantial compliance with the statute; for it carries with it evidence that the officer knew personally that the person who executed the instrument was the person whose act the deed or other instrument purports to be.”

The Supreme Court said, in Mullins v. Weaver, 57 Tex. 5:

“The particular objection urged to this certificate of acknowledgment is the omission of the words ‘sealed and delivered’ after the word •signed.’ Article 1003, Paschal’s Digest, was the statute then in force, and used the term ‘willingly sign and seal the said writing,’ whereas in the form therein prescribed the following term is used: ‘Willingly signed, sealed, and delivered the same.’ And it is also provided that any certificate showing that the requisites of the law had been complied with should be as valid as the form there prescribed. For two reasons it was not essential to use in that part of the certificate of acknowledgment the word ‘delivered.’ In the first place, it is shown in the certificate that the husband, G. W. Scott, had delivered the deed; in the second place, while the word is used in the form of the certificate as given, it is not required by law, nor is the use of that word in the certificate necessary to constitute it a valid acknowledgment.

“In the case of Belcher v. Weaver, 46 Tex. 295 [26 Am. Rep. 267], Chief Justice Roberts, commenting upon this statute, said: ‘The word “freely” may be omitted in the certificate, because it is omitted in the form. The word “seal” may be omitted, because when this deed was made a seal was not necessary. The words “and deed” in connection with “act” may be omitted, because, though in the form, it is not in the same connection in the enacting clause. So the word “delivered” is in one, but not in the other.’

“It is admitted by counsel in their brief that the use of the word ‘sealed’ was not necessary to constitute it a valid acknowledgment. But it is claimed that the certificate must use the word ‘delivered.’ This, however, it has been seen, is not essential to a valid certificate of acknowledgment.

“A certificate of acknowledgment of a married woman to her deed, showing that the statute has been substantially complied with, is sufficient. The acknowledgment is required for her protection against the undue influence of the husband; and to do this the lawmaking power requires that she shall be examined privily and apart from her husband, and that the deed shall be explained to her; that is, the officer, in the absence of the husband, shall so explain the deed that the wife will understand its import and effect, and that she shall then declare to the officer that she freely and voluntarily signed the deed, and did not wish to retract it. When the certificate shows that these things have been done, without regard to the particular language used by the officer, the object and purpose of' the law has been attained. This certificate shows that the deed was fully explained to her by the officer separate and apart from the husband, and that she acknowledged that she had signed the same as her voluntary act and deed, and did not wish to retract it. Now, notwithstanding the acknowledgment was taken before the passage of the act dispensing with the use of seals, and the word ‘sealed,’ although used in statute and form, was omitted from the certificate, nevertheless she declared that she had signed the deed, and the scroll appears appended to her name, and is acknowledged in the body of the deed as a seal. It could not be held that the omission of the word from the certificate could vitiate it, because it does show that all the substantial elements of the statute made for her protection have been fully complied with.”

The Supreme Court also, in the case of Sowers v. Peterson, 59 Tex. 216, used the following language:

“The alleged defect consisted in the fact that the certificate of the officer showed on its face that the grantor had been made known to him, but that the officer failed to indorse on the deed, as he should have done, the proof by which he was made known to him, and 'by which his identity was established to his satisfaction. Hart. Dig. art. 2793; volume 1, Paseh. Dig. art. 5010.

“Section 10 of the act of the 12th of May, 1846 (Hart. Dig. art. 2793), provides in eases where the grantor, who appears before the officer for the purpose of making the acknowledgment necessary to allow the deed to be recorded, is unknown to the officer, that he may require proof of his identity with the grantor named in the. deed the execution of which he desires to acknowledge. This proof can be made by the affidavit of the grantor himself, or by witnesses who can identify him. The statute requires the proof of identification to be indorsed on the instrument. The objection is that in this case the grantor was unknown, and, though made known to the officer, the proof of his identity was not indorsed by the officer on the deed as required by statute.

“It is not clear from the certificate of the officer that the grantor, Akin, was in fact entirely unknown to him. He does not expressly say so in his certificate. In the deed, which is signed by himself and his wife, Elvira, he is described as a resident of Dallas county, where the deed was made. The grantee is also described as a citizen of the same county. It appears to have been an ordinary sale of a small tract of little value, 'between the parties, all citizens of the same county. The clerk in 'his certificate states that the grantor appeared before him in person, and states that he was made known to him; where, and by what means, or on what occasion, he does not state. Such a statement does not necessarily imply that the grantor was entirely unknown to him, or was an utter stranger whom he had never seen before. But, assuming that it was the fact that the grantor was up to the date of the acknowledgment entirely unknown to the officer, yet it is evident that by some means, and we must presume they were proper and lawful, the officer took the necessary steps to identify the grantor before taking his acknowledgment, and did identify him. The mere fact that he failed to indorse the proof of identity, after he had obtained it, on the deed, would not vitiate the record, if the proof of identity was in fact made, and the acknowledgment, as required by the statute, taken.

“The statute, it is true, makes it the duty of the officer in such cases to indorse the proof of identity on the deed, and he should always do so, but it does not prescribe that, without this indorsement, the deed shall not be admitted to record. Hart. Dig. § 2790:; Paseh. Dig. 5007. All that is necessary to admit the deed to record, when the acknowledgment is made, as in this case, by the grantor, is for him to appear before the proper officer and solemnly state that he executed the deed for the consideration and purposes therein stated. When the deed is thus acknowledged, it becomes the bounden duty of the proper officer to record it. Hart. Dig. art. 2787; volume 1, Paseh. Dig. art. 5004. This he must do whether the affidavit of identity, which ought on such occasions to be attached, is so attached or not.

“In construing this statute, this court, in Monroe v. Arledge, 23 Tex. 479, held that a strict and technical compliance with the letter of the statute was not necessary. All that was required to admit the instrument to record was a substantial compliance with the requirements of the act. In the case above cited the court held that an acknowledgment that omitted 1 to state that it was executed for ‘the consideration’ stated in the deed was good. So, no doubt, an acknowledgment under this act (1846) would be good which omitted the word ‘purposes’ from the acknowledgment, or that omitted both the words ‘consideration’ and ‘purposes.’

“We think that under the act of 12th of May, .1846, under which the acknowledgment in question was taken, it must be held to be a substantial compliance with the statute. Watkins v. Hall, 57 Tex. 8; Mullins v. Weaver, 57 Tex. 6. The evidence also, in the further progress of the trial, disclosed the fact that both parties held under the grantor, Akin, and derived their title from him as a common source. The deed was was properly admitted in evidence.”

Justice Brown, in the case of Bindley v. Bindley, 92 Tex. 446, 49 S. W. 573, wrote as. follows:

“The acknowledgment in question is in these words: ‘State of Texas, Hopkins County. Before me, A. P. Banders, clerk of the county court of Hopkins county, Texas, on this day personally appeared Wesley Sutton, known to me by introduction by C. W. Deems to be the person whose signature is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and official seal, at Sulphur .Springs, Texas, this 27th day of June, 1884. A. P. Banders, Clerk County Court, Hopkins County; Texas. [Seal.]’

“ ‘Question: Does the acknowledgment substantially comply with the statute (Rev. St. 1895, art. 4620), so as to render it a valid acknowledgment?’ We answer ‘Yes.’ The duties of aU officers in taking and certifying acknowledgments of instruments for registration are tersely prescribed in the following articles of the Revised Statutes of 1895:

“ ‘Art. 4616. The acknowledgment of an instrument of writing for the purpose of being recorded shall be by the grantor or person who executed the same appearing before some officer authorized to take such acknowledgment, and stating that he had executed the same for the consideration and purposes therein stated; and the officer taking such acknowledgment shall make a certificate thereof, sign and seal the same with his seal of office.

“ ‘Art. 4617. No acknowledgment of any instrument of writing shall be taken unless tire officer taking it knows or has satisfactory evidence on the oath or affirmation of a credible witness, which shall be noted in his certificate, that the person making such acknowledgment is the individual who executed and is described in .the instrument.’

“ ‘Art. 4619. Any officer taking the acknowledgment of a deed or other instrument of writing must place thereon his official certificate, signed by him and given under his seal of office, substantially in form as hereinafter prescribed.

“ ‘Art. 4620. The form of an ordinary certificate of acknowledgment must be substantially as follows: “The State of -, County of -. Before me,-(here insert the name and character of the officer) on this day personally appeared-, known to me (or proved to me on oath of -) to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed. Given under my hand and seal of office this-day of-, A. D.-. -.” ’

“All officers who are authorized to take and certify acknowledgments to and proof of instruments for registration are required to take the oath of office prescribed by the Constitution and to give bonds for the faithful performance of their duties, and each official act in taking such acknowledgment is done under the sanction of the official oath, and upon the official responsibility of the officer so acting. It is the policy of our statutes to require each officer to comply with the requirements of the law in taking acknowledgments to such instru-i ments, and to make a certificate of the facts which shall show such compliance. The law has not prescribed the extent of acquaintance which is necessary to justify an officer in certifying that the person who presents himself is known to the officer to 'be the person who signed the instrument in question; but that question is, and necessarily must be, submitted to the decision of each officer, under the facts as they existed at the time the act is done. When such officer has determined, upon the evidence presented to him, that he identifies the person in question as being the same that executed the instrument under consideration, and when he so certifies according to law, the certificate must be held to be sufficient, unless upon its face it shows that in fact the statement of such knowledge is untrue.

“The words ‘by introduction by O. W. Deems,’ in the acknowledgment submitted, are surplus-age, and may be stricken out without affecting the meaning or validity of the certificate. They do not show that the introduction was the only means of knowledge possessed by the officer at the time, and it may be, and doubtless is, true that there were other circumstances known to the officer which, concurring with the introduction, served to satisfy his mind upon the question. Sowers v. Peterson, 59 Tex. 218. If Banders, the clerk, was satisfied that Sutton was the same person whose name was signed to the deed, he could properly certify as required by law, whether his acquaintance was limited to an hour or extended to the period of a year. We do not intend to hold that a mere introduction is sufficient to authorize the official to make the certificate that the person introduced is known to him (the officer); but if he be satisfied, and make the certificate, the fact that he expressed in that certificate that the person was so introduced will not invalidate the official act, which would otherwise be valid.”

In the case of Wren v. Howland, Chief Justice Fisher of the Court of Civil Appeals, in 33 Tex. Civ. App. 87, 75 S. W. 894, speaks as follows:

“The acknowledgment is as follows: ‘State of New York, City and County of New York. I, Gordon B. Ford, a commissioner in said state, appointed ’by the Governor of the state of Texas to take and administer oaths and affirmations, and to take the acknowledgment and proof of deeds to be used and recorded in said state of Texas, do hereby certify that this day Bouis B. Reed, Jr., personally appeared before me, and, being duly sworn, saith that Abram M. Gentry, whose signature appears to the annexed instrument of writing, acknowledged same to be his act and deed, for the considerations and purposes therein expressed, and that he, with John Sessions, the other witness, subscribed their names as witnesses thereto at the request of the same Abram M. Gentry. In testimony whereof, I hereunto set my hand and official seal, this 17th day of December, 1858. [Signed] Gordon B. Ford, Commissioner for Texas in and for the State of New York.’

“The eighth section of the act of May 12, 1846 (Baws 1846, p. 237; Hart. Dig. art. 2791), under which this acknowledgment is taken, reads as follows: ‘That the proof of any instrument of writing, for the purpose of being recorded, shall be by one or more of the subscribing witnesses personally appearing before some officer authorized to take such proof, and stating on oath that he or they saw the grantor or person who executed such instrument, - subscribe the same, or that the grantor or person who executed such instrument of writing acknowledged in his or their presence that he had subscribed and executed the same for the purposes and consideration therein stated, and that he or they had signed the same as witnesses, at the request of the grantor or person who . executed such instrument, and the officer taking such proof shall make his certificate thereon, sign and seal the same with his official seal.’ The effect of the certificate is to state that the grantor, Gentry, acknowledged and admitted to the subscribing and officiating witness, Louis B. Reed, that he (the grantor) had subscribed and executed the deed for the purposes and consideration therein stated. This brings it within the terms of the statute as quoted. It was not required by the act in question that the certificate should state that the subscribing witness was known to the officer taking the acknowledgment. Sowers v. Peterson, 59 Tex. 216; Watkins v. Hall, 57 Tex. 1; Cook v. Cook [5 Tex. Civ. App. 30], 23 S. W. 927.”

Article 6806, Vernon’s Sayles’ Texas Civil Statutes, reads as follows:

“Proof of Instrument by Witness. — The proof of any instrument of writing for the purpose of being recorded shall be by one or more of the subscribing witnesses personally appearing 'before some officer authorized to take such proof, and stating on oath that he or they saw the grantor or person who executed such instrument subscribe the same, or that the grantor or person who executed such instrument of writing acknowledged in his or their presence that he had executed the same for the purposes and consideration therein stated, and that he or they had signed the same as witnesses at the request of the grantor or person who executed such instrument; and the officer taking such proof shall make a certificate thereof, sign and seal the same with his official seal.” Act May 12, 1846, § 8; P. D. 5008.

The above authorities settle the question beyond the peradventure of a doubt and in favor of the contention of plaintiff in error. We are persuaded that the certificate under consideration is in substantial compliance with the statute, and that the court erred in holding that the same was insufficient. Therefore the assignment is sustained.

Plaintiff in error’s second, third, fourth, fifth, and sixth assignments are as follows:

(a) The court erred in holding that the deed from Margaret Frisby by R. A. Clifton, sheriff, to H. N. Jones and S. Y. Smith, was sufficient to show an outstanding title against plaintiff, because said deed is not admissible in evidence as against the plaintiff, nor are the recitals therein admissible against plaintiff, because said deed and the recitals therein are hearsay as to plaintiff, and he is not bound by said deed nor the recitals thereof.

(b) The court erred in holding that the deed from Margaret Frisby by R. A. Clifton, sheriff, to H. N. Jones and S. X. Smith, was sufficient to show an outstanding title against plaintiff, because the said deed and the recitals therein are insufficient to sho,w that any valid judgment was ever rendered against the said Margaret Frisby, or that the various legal requirements necessary to a valid sale by said sheriff were ever complied with.

(c) The court erred in holding that the deed from Margaret Frisby by R. A. Clifton,, sheriff, to H. N. Jones and S. Y. Smith, was sufficient to show an outstanding title against plaintiff, because the recitals in said deed affirmatively show that the sale of said land referred to in said deed was made under three certain executions out of the county court of Trinity county on three judgments, and that there was no notice given of the date and place of sale, under either of said judgments, and the recitals in said deed show that said sale, if any, was not made under any or either of said judgments at one and the same time, and was therefore invalid.

(d) The court erred in holding that the deed from Margaret Frisby by R. A. Clifton, sheriff, to H. N. Jones and S. Y. Smith, was sufficient to. show an outstanding title against plaintiff, because the recitals in said deed affirmatively show that no notice of sale was ever given of the time, place, and manner of said sale, and the same is therefore invalid.

(e) The court erred in holding that the deed from Margaret Frisby by sheriff to Jones and Smith showed an outstanding title against plaintiff, because the proof shows that Margaret McDonald bought the land in controversy from A. J. Frisby and wife, Elizabeth Frisby, and executed her notes in payment for said land in the sum of $4,555, payable to B. F. Wright and O. L. Taylor, and at the time of said sheriff’s sale and deed the said notes were outstanding and a valid lien against said land for the amount thereof, and that the superior legal and equitable title to said lands was in the holder of said notes to secure the payment of same, and that after-wards the said Margaret McDonald, then Margaret McDonald Frisby, wife of A. J. Frisby, joined by her husband, A. J. Frisby, conveyed said land to J. Lyle Smith, administrator of the estate of B. F. Wright, and to Clement Penn and O. L. Taylor and wife, Francina Taylor, in settlement of the amount due on said notes, and that the effect of said transaction was to vest in Smith, as administrator of the estate of B. F. Wright, and Clement Penn, O. L. Taylor and wife, Francina Penn, the legal title, to the premises in controversy; that plaintiff acquired title of said B. F. Wright, Clement Penn, O. L. Taylor, and Francina Penn against the title, if any, conveyed by sheriff’s deed; that plaintiff has the superior title to said premises, and said sheriff’s deed did not and could not vest the title out of said Margaret McDonald as against the holder of said notes and as against this plaintiff.

The propositions are that no judgment or other order was shown to authorize the execution of this deed, that the recitals in the deed affirmatively showed that the sale of' land was made under three certain executions, and that there was no notice given of the time and place of sale under either of said judgments, and recitals in the deed show that said sale was not made under either one of the judgments at one and the same time, and that at the time said sale was made there were outstanding vendor’s lien notes, and a valid lien against the land, and that the superior legal and equitable title was in the holder of the notes to secure the payment of same.

The sheriff’s deed reads as follows:

“By virtue of three certain executions issued out of the county court of Trinity county in favor of F. C. Roberts v. A. J. Frisby and Margaret Frisby on three certain judgments rendered on the 6th day of October, 1868, and directed and delivered to me, R. A. Olifton, as sheriff of Trinity county, Tesas, commanding me of the goods and chattels, lands and writ specified, I, R. A. Olifton, sheriff as aforesaid, did upon the 9th day of October, 1868, levy on and seize all the estate right title and interest which the said defendant Margaret Frisby on the 9th day of October, 1868, so had of, in and to the premises hereinafter described, and on the first Tuesday of November, 1868, within the hours prescribed by law, sold said premises at public vendue in the county of Trinity at the time and place of such sale, etc., and whereas at said sale the said premises were struck off to H. N. Jones and S. Y. Smith for the sum of $322.00 and in consideration of the premises aforesaid and the payment of said sum conveys to said H. N. Jones and S. Y. .Smith ‘all that tract or parcel of land lying and being situated in the county of Trinity and state of Texas, and known as the Penn tract of land, lying on the Trinity river in said county, the metes and bounds of which are as follows: [Here follows field notes] — containing 1,020 acres of land, more or less. * * * ”

This deed is dated November 4, 1868, and acknowledged by R. A. Olifton, sheriff of Trinity county, Tex., before Chas. A. Teagar-den, clerk of the county court, Trinity county, Tex., on May 21, 1869, and was filed for record March 8, 1870, at 11 o’clock a. m. and recorded in Book F, pages 111, 112, and 113, of the Deed Records of Trinity County, and was refiled for record December 1, 1875, and recorded at Book B, pages 255 and 250, of the Deed Records of said Trinity County, Tex.

In the case of Howard v. North, 5 Tex. 311, 51 Am. Dec. 769, Chief Justice Hemphill used the following language:

“Several exceptions were taken to the admissibility of the deed of conveyance, in evidence. One is that it purports to be founded upon an execution issued and tested March 18, 1845; whereas the execution in the record is issued and tested May 5th. The statute directs the sheriff, after sale has been made and the terms complied with, to execute and deliver a conveyance to the purchaser; but does not prescribe the facts which shall be stated in the deed, or that the authority under which the sheriff acted, shall be recited. The recital in the deed is not made by the statute, nor is it on general principles of law, a substantial and efficient part of it; nor is it evidence of facts recited in it, except between the immediate parties to it. In Harrison v. Maxwell, 2 N. & McR. 34:7, the deed from the sheriff recited that the execution had issued from the court of one (district, when, in fact, it had issued from a court of another. It held that this misreeital was not fatal to the title. The legal effect advantages in recitals in deeds were stated in the opinion of the court. The usage of incorporating in a sheriff’s deed a recital of the authority under which he sold was commended as productive of great convenience, as well to the sheriff, as to the purchaser. It would point the former to his authority to sell, and would facilitate the latter in deriving his title; but it was held to be not indispensable. The recital of the power to sell and convey did not give the right; nor was it evidence of the right. * * *

“The misreeital of a judgment in a sheriff’s deed is not material when, in fact, it appears that the sale was under a subsisting judgment and execution; a recital not being a material part of the deed. * * * There must be a subsisting judgment and execution, under which the sale is to be made, but, as the recital of either is not material, so a mistake will not affect the title.”

It does not appear from the recitals in the deed that any valid judgment was ever rendered against Margaret Frisby, or that any of the legal requirements necessary to a valid sale by the sheriff were complied with. The sheriff does not even state “that notice was given of the time and place of the sale, as required by law.” The proof shows that Margaret McDonald bought the land in controversy from A. J. Frisby and wife, Elizabeth Frisby, and executed her notes in payment for said land, in the sum of $4,555, and that at the time of the said sheriff’s sale and deed the said notes were in the hands of B. F. Wright and O. L. Taylor, and were outstanding, and that they were a valid lien against the land for the amount of the notes. The proof further shows that afterwards Margaret McDonald married A. J. Frisby, and she, joined by her husband, conveyed the land to B. Lyle Smith, administrator of the estate of B. F. Wright, and to Clement Penn and O. L. Taylor and wife, Francina Taylor, in settlement of the amount due on the notes, on the 12th day of June, 1869. The parties, it seems, who claimed under this sheriff’s deed did not appear at the trial of this case and filed no answer, nor have they asserted any title, right, or claim to the property for nearly 40 years. This is merely a circumstance. We are of the opinion that the testimony was not sufficient to show an outstanding title in the parties claiming under the sheriff’s deed. These assignments are therefore sustained.

It is contended by the seventh assignment of error that the evidence showed a complete and perfect chain of title in plaintiff, and fails to show any title in defendants.

We have heretofore set out the certificate granted to John Andrews, and the transfer of said certificate to William Penn. From ■this record it appears that Clement Penn and Francina Penn Taylor were the only heirs of William Penn, and that they conveyed in 1861 to A. J. Frisby; that Frisby and wife conveyed to Mrs. McDonald. These two deeds were not filed for record until August 9, 1875. As above stated, in 1860 it was sold under execution against Mrs. McDonald. She had never paid for the land, having married after she acquired title, and there were outstanding notes against the property. She married Frisby, .and she and Frisby conveyed to J. Lyle Smith, administrator of the estate of B. F. Wright, and the heirs of Wright conveyed to plaintiff in the case. The outstanding title in this case consists of the deed by the sheriff to Jones and- Smith.

It was held by the lower court that, even if the acknowledgment to the transfer of the certificate was good, the same was not notice. As the defendants claimed under the heirs of John Andrews, it was necessary, in order for them to recover, to show that they were innocent purchasers for value without notice of the conveyance of the certificate by John Andrews to William Penn. There is no evidence in this record or attempt to show that they were innocent purchasers, save and except the instruments themselves, and as the defendants themselves had before them at the time of the purchase of their title the certificate under which the land in controversy was located for William Penn, and the conveyance of same, and the patent which is located by virtue of this certificate.

In the case of Watkins v. Edwards, 23 Tex. 443, Chief Justice Wheeler uses this language:

“To entitle a subsequent vendee to have a prior unregistered conveyance, postponed to Ms subsequent conveyance, it must appear: (1) That be was a purchaser bona fide; (2) that ne purchased without notice, actual or constructive, of the title to the prior vendee. It must appear that the purchase money was bona fide and truly paid; a recital of that fact in the deed is not sufficient. It must be proved by-evidence independently of the recitals in the deed. That this is necessary to support the plea of innocent purchaser is well settled. Nolen v. Gwyn, 16 Ala. 725; High v. Batte, 10 Yerg. [Tenn.] 335; Hardingham v. Nicholis, 3 Atk. 304; Jewett v. Palmer, 7 Johns. Ch. [N. Y.] 65 [11 Am. Dec. 401]; Williams v. Hollingsworth, 1 Strob. Eq. [S. C.] 103 [47 Am. Dec. 527]; Bonne v. Chiles, 10 Pet. 177, 211 [9 L. Ed. 388]. As between the parties, in a suit for the specific performance of an agreement to convey, a recital in the agreement that the purchase money has been paid may be sufficient prima facie evidence of the fact. Short v. Price, 17 Tex. 397. But it is otherwise as to third persons whose rights are to be thereby affected. • The recital is not evidence against them, but is considered as but the declarations- of a stranger. The defendants introduced no evidence of the payment of the purchase -money, or of any consideration given for their purchase; in this essential particular the plea of innocent purchaser was wholly unsupported by evidence.

“But further, to sustain the plea of innocent purchaser, the subsequent purchaser must have purchased without notice, actual or constructive, of the prior title or conveyance. Hart. Dig. art. 2777; 4 Kent, Com. 456; 7 Johns. Ch. [N. Y.] 65 [11 Am. Dec. 401]; Dixon v. Laeoste, 1 Smedes & M. [Miss.] 70; McCaskle v. Amarine, 12 Ala. 17. It is no objection to the validity of a deed or conveyance, under the statute, that it is not recorded, except as to creditors and subsequent purchasers. If not recorded, it is good and effectual to pass the title, as against the grantor and his heirs and devisees. ‘Registration,’ says the statute, ‘as between the parties and their legal representatives, and all subsequent purchasers and creditors, with actual notice, or reasonable information of the grant, deed or instrument, shall not be deemed requisite, in order to its full effect, validity, and priority, according to its intrinsic nature.’ Hart. Dig. art. 2777. Notice of the unregistered deed or conveyance, by the subsequent purchaser, previous to his purchase, will countervail the effect of the prior registry of his deed, and destroy his pretensions, as a bona fide purchaser. Registration, it has been said, was designed to furnish a substitute for livery of seisin, which had been dispensed with. It furnishes the means of information as to the state of the title, by the use of proper diligence, and amounts to constructive notice, or sufficient notoriety, or information reasonably sufficient to protect honest purchasers against prior secret conveyances and fraudulent incumbrances. And it is well settled in this. country, and in England, that the notice of title given by possession is equivalent to the constructive notice afforded by registration of the deed. McCaskle v. Amarine, 12 Ala. 17; Dixon v. Dacoste, 1 Smedes & M. [Miss.] 70, 107, and cases cited; Daniels v. Davison, 16 Ves. 249.

“In the case of Daniels v. Davison, Lord Eldon said: ‘Where there is a tenant in possession, under a lease, or an agreement, a person purchasing part of the estate must be bound to inquire on what terms that person is in possession. * * * My opinion, therefore, considering this as depending upon notice, is that, this tenant being in possession under a lease, with an agreement in his pocket to become the purchaser, these circumstances altogether, give him an equity, repelling the claim of a subsequent purchaser, who made no inquiry as to the nature of his possession.’ It was accordingly held that -the possession of a tenant is notice to a purchaser of the actual interest he may have, either as tenant, or by an agreement to purchase the premises. So, in Hanbury v. Lichfield, 2 Mylne & K. 629, it was held that, where a tenant is in possession of the premises, a purchaser has implied notice of the title. Apart from any registry, possession ought to put the purchaser, on inquiry. Woods v. Farmere, 7 Watts [Pa.] 382 [32 Am. Dec. 772], ‘Possession 'by the vendee,’ said Chief Justice Sharkey, ‘is evidence to creditors and purchasers of the conveyance, or, at least, it is so strong a circumstance that it is now uniformly regarded as sufficient evidence of notice.’ 1 .Smedes & M. 107. In the language of the court, in Pritchard v. Brown, 4 N. H. 397 [17 Am. Dec. 431]: ‘It is not to be presumed that any man who wishes to purchase land honestly will buy without knowing what are the claims of a person who is in the open possession of it.’

“The possession of the plaintiffs’ tenants was certainly sufficient to put the purchaser on inquiry, which must have led to a knowledge of the plaintiffs’ title. It is therefore, in judgment of law, notice to the purchaser of that title. Wethered v. Boon, 17 Tex. 143. He ought to be deemed to have ‘reasonable information’ of a fact, who has the means of information afforded Mm, and whose situation makes it his duty to inquire of those from whom the information may be obtained. Such was the case of the defendant, Duren, and his vendor, Dailey. It is admitted, that at -the time of their respective purchases the plaintiffs were in possession, by their tenants, under leases or agreements, for the purchase of the land. The defendants are therefore affected with notice, and cannot claim the protection of innocent purchasers. The plaintiffs’ older title must therefore prevail over the title under which the defendants daim.”

Many cases since the above rule was announced have followed the principle announced therein; for it is a sound legal proposition. The record does not show, as said above, that áefendants in error did or did not have actual notice of the transfer of the certificate from Andrews to Penn. The court did not find they had actual notice. We are constrained to hold, it appearing from the record, arid the recitals in the deed from Margaret McDonald Erisby. and A. J. Prisby, that Mrs. McDonald, before she married Erisby, bought the land and executed her notes in. payment therefor, and that B. P. Wright was the holder of the notes, and that same were -unpaid at the time of the execution of the sheriff’s deed, that the same doctrine of innocent purchaser applies to the purchaser in the sheriff’s sale, and that, before they could acquire any title as against the holder of the notes, it would be necessary to show that they complied with the rule above announced. Jones and Smith, purchasers at the sheriff’s sale, might have known the facts in connection with the title, and as before intimated, from the fact that no claim to the premises was set up by them or their heirs for more than forty years, it would, in our minds, be persuasive that they did have this knowledge. We believe from the record in this case that the plaintiff in error has sho.wn a good title to the land in controversy, that defendants in error cannot be protected as innocent purchasers, and that the alleged outstanding title cannot prevail.

Therefore, so believing, the said assignment is sustained, and it follows that this cause must be reversed and rendered for plaintiff in error.

It is so ordered.

Footnotes

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