Berry v. Donley

• Decision Date: 01 January 1863
• Citation: 26 Tex. 737
• Parties: PETER BERRY, ADMINISTRATOR, AND OTHERS, v. S. P. DONLEY AND OTHERS.
• Court: Texas Supreme Court

26 Tex. 737

PETER BERRY, ADMINISTRATOR, AND OTHERS,

v.S. P. DONLEY AND OTHERS.

Supreme Court of Texas.

1863.

A deed signed by a married woman subsequent to the passage of the act of February 3, 1841 (O. & W. Dig. p. 696), regulating the conveyances of property by married women, but the execution whereof was not acknowledged to have been made by her privily and apart from her husband as required by said statute, passes neither a legal nor an equitable title. [8 Tex. 397;29 Id. 129.]

The signature of a married woman to a deed for her property without the private examination required by the statute is a nullity. It is the examination, not the signature, which gives validity to a deed.

The fact, that the consideration for the land embraced in a deed so signed but not acknowledged as prescribed by the statute, was paid, does not strengthen the title of the purchaser; nor does such a deed constitute either title or color of title, which will protect a party setting up the same in a plea of three years' limitation; nor does the registration of such a deed charge a subsequent purchaser with notice; nor does such a deed entitle a party claiming under it to a judgment for his purchase money against a subsequent purchaser as a condition precedent of a recovery of the land embraced in it.

If it be admitted that a purchaser under such a deed knew that the land included in it was the separate property of a married woman, the law charges him with the knowledge that the conveyance from the married woman was invalid unless her acknowledgment was taken as prescribed by the statute; and if such a purchaser is deceived or mistaken as to his title, it is through his own folly and neglect, and he cannot set up in defense to a suit brought by a subsequent purchaser his failure or neglect to have such a deed properly acknowledged.

If improvements made in good faith by a party claiming land under such a deed be recovered of him by a subsequent purchaser, such compensation should be allowed him as he is entitled to, if any, under the statute for the protection of settlers in good faith.

It cannot be questioned that the district court is authorized to submit special issues to a jury, if it be deemed necessary for a proper disposition of the case.

If a charge given by the court below to the jury be thought by the plaintiff or defendant to be not sufficiently full or as not covering all the issues in the case, it is his duty to ask such additional instructions as he believes are necessary for its proper determination in the court below; having failed to do this, he cannot complain in the appellate court.

ERROR from Cherokee. Tried below before Hon. Charles A. Frazer.

Stockton P. Donley and James M. Anderson, defendants in error, brought suit in the district court of Cherokee county on the 4th day of February, 1857, alleging that they were the legal and rightful owners of an undivided interest in and to six hundred and forty acres of land to be selected by them out of the north half of a certain half league of land situated in the county of Cherokee, which league of land is known and designated upon the plot and map of said county as the Zaccheus Gibbs league; that the six hundred and forty acres of land are to be selected out of any portion of said north half so as not to include any of the tract of land heretofore known as the home place of Burtis Allen and Phebe Allen, and now known and particularly described by two surveys known as the Petty survey and the Jesse Jones survey; the field notes of the same are filed and made a part of the petition; that the Petty survey contains three hundred and thirty-five acres; that the Jesse T. Jones survey contains one hundred and sixty-seven acres, making the whole of said homestead amount to five hundred and two acres. That their title is derived as follows: that on the second of February, 1835, a deed of concession for said league of land was issued by George Antonio Nixon, commissioner of David G. Burnett's colony to one Zaccheus Gibbs; that Gibbs died in 1837, leaving Phebe Allen, his only child and sole heir; that long after the closing of the administration upon the estate of said Gibbs, to wit, on the 26th April, 1852, Phebe Allen and her husband, Burtis Allen, for and in consideration of $640, paid by petitioners and William B. Ochiltree and Thomas J. Jennings, sold and conveyed said undivided interest of land to petitioners and said Ochiltree and Jennings; which deed bears date the 26th April, aforesaid, and was legally acknowledged by said Burtis and Phebe Allen before a notary public of said county, filed in the office of the clerk of said county for record on the 28th June, 1852, and recorded on the 16th July of of the same year; that said Ochiltree and the said Jennings, on the 3d day of June, 1856, by deed of that date, sold and conveyed their interest to petitioners, which deed was duly recorded on the books of the records of said county on the 7th of June, 1856. Petitioners further averred that by virtue of the aforesaid deed from Burtis and Phebe Allen, the six hundred and forty acres aforesaid were to be selected by said Ochiltree, Jennings and petitioners, and that petitioners by virtue of deed from Ochiltree and Jennings now have the right of making said selection. They further aver that said Burtis and Phebe Allen have an interest in said north half of said league of land and are made parties to the suit; and also that Edward H. Coleman, Richard Coleman Nicholson, John A. Box and Peter Berry set up pretended titles to said half league of land, and deny the title of petitioners and their right to make said selection, and refuse absolutely to permit them to select the same; that said pretended titles are a cloud upon the title of petitioners. Prayer that defendants be compelled to exhibit their pretended titles; that on final hearing petitioners be permitted as against defendants to make their selection of said six hundred and forty acres; that title of petitioners be decreed perfect; that title of defendants be declared null and void as against petitioners.

Judgment by default against Burtis and Phebe Allen. There is no statement of facts in the record. The pleadings show that all the defendants claim to derive title from Phebe Allen. Some of them, by virtue of deeds made by constables to satisfy judgments rendered against Burtis and Phebe Allen. Exceptions were made to the answers setting up these deeds made by constables, and sustained. Other of the defendants claimed under deeds signed by Burtis and Phebe Allen, witnessed and sworn to by one of the witnesses, and recorded in the proper office of Cherokee county. The answers, setting up these deeds thus signed by Burtis and Phebe Allen, were excepted to upon the ground that they had not been made and acknowledged as required by law to be done to pass the title of a married woman to real estate. Exceptions sustained. These answers admitted that these deeds had not been acknowledged in the manner prescribed by law, but alleged that they had been signed and delivered by Phebe Allen freely and voluntarily, and that the proceeds of the sale were necessary for the support of herself and family. The defendants charged that plaintiffs had actual and constructive notice of these titles before they obtained the deed under which they claimed. They admitted that Phebe Allen was and had been a married woman at and before and since the date of their deeds. They admitted that the land in controversy was the separate property of Phebe Allen at the time of their alleged purchases. They alleged that the plaintiffs had not made their selection within a reasonable time, as more than four years had elapsed since the execution of the deed under which they claimed; they pleaded the three years' limitations and improvements in good faith. They further alleged that Phebe Allen was wholly insolvent, and prayed that if their lands be taken from them, and if the petitioners be subrogated to the rights of Phebe Allen, then the petitioners should be required to refund the purchase money which they had paid to Phebe Allen.

Pending the suit, Jesse Duren filed a plea of intervention, setting up a claim to the remainder of the half league, after deducting the six hundred and forty acres claimed by petitioners, under a deed made by Burtis and Phebe Allen, subsequent to the institution of and pending the suit.

Special issues were submitted to the jury, and judgment was rendered in favor of petitioners and intervenor.

M. H. Bonner, for Peter Berry, administrator of R. C. Nicholson, defendant in error. Petitioners and intervenor had constructive notice of the title of the intestate of Berry, for the following reasons: 1st. Because of the recitals in the deeds under which his intestate claims. Hardy v. DeLeon, 5 Tex. 244;Box v. Lawrence, 14 Id. 556; 2 Sugden on Vendors, pp. 329, 333; Parks v. Willard, 1 Tex. 350;Briscoe v. Bronaugh, Id. 326. 2d. Because of the actual, adverse, open and notorious possession by his intestate, of the land in controversy at the date of the deed under which petitioners claim. 4 Kent, 179; 1 Smedes & Marsh. 64; 12 Ala. 734; 10 How. (U. S.) 348; 1 Freeman's Chancery (Miss.), 85; 1 Smedes & Marsh. (Miss.) Ch. 338; Chesterman v. Gardner, 5 Johns. Ch. 32;Governeur v. Lynch, 2 Paige Ch. 300;6 Wend. 213, 226;2 Mass. 508;3 Pick. 149. Because of the registration of the deed under which intestate held possession. Parks v. Willard, 1 Tex. 350.3d. As to the intervenor especially, because of the pendency of the suit at the time of his purchase. 3 Sugden on Vendors, p. 333; Hardy v. DeLeon, 5 Tex. 244; 4 Phil. Ev. p. 458, and note 25.

In support of the plea of the statute of limitations, he cited Thompson v. Thompson, 12 Tex. 327;13 How. 472;Jones v. Menard, 1 Tex. 779. The deed under which intestate held possession was color of title. Before the petitioners should be allowed to recover, they should refund the purchase...