Black v. Garner

• Decision Date: 22 May 1901
• Citation: 63 S.W. 918
• Parties: BLACK et ux. v. GARNER et al.
• Court: Texas Court of Appeals

63 S.W. 918

BLACK et ux. v.GARNER et al.

Court of Civil Appeals of Texas.

May 22, 1901.

Appeal from district court, Navarro county; L. B. Cobb, Judge.

Suit by W. E. Black and wife against J. C. Garner and another.From a judgment in favor of the defendants, the plaintiffs appeal.Reversed.

Simkins & Mays, for appellants.McClellan & Prince, for appellees.

FLY, J.

W. E. Black, joined by his wife.Mattie J. Black, instituted this suit against J. C. Garner and P. M. Lea, to recover lot 18, block 3, in the Hightower & Evans addition to the city of Corsicana.It was alleged that on December 20, 1893, the property was the homestead of appellants, and appellee Garner entered and dispossessed them of it; that on June 28, 1893, W. E. Black, believing he was indebted to P. M. Lea in the sum of $200, gave him an instrument, in form a deed, in reality a mortgage, conveying the property to said Lea, it being agreed that Lea would, upon payment of the debt, reconvey the land to Black; that Lea, in violation of the agreement, sold the property to appellee, who knew it was the homestead of appellants.Appellants prayed for restitution of the premises, and in the alternative for judgment over against Lea for the value of the property.Garner pleaded not guilty, and that he was an innocent purchaser for value, without notice of any homestead claim on the part of appellants, and improvements in good faith in the sum of $72.60, and, in the event of a recovery against him, he prayed for judgment over against Lea for the purchase money paid for the land.Lea denied any knowledge of the homestead claim of appellants, and alleged that the instrument was a deed, and not a mortgage, and sold the property to Garner.The cause was tried by the court, and resulted in a judgment for appellees.

The district judge found the following facts, which are adopted by this court, with few changes and emendations, justified by the statement of facts: "(1)Plaintiffs, being then husband and wife, bought the lot in 1889, made it their home, and took deed to W. E. Black.They lived on the lot till January, 1891, when W. E. Black went to El Paso, Texas, to take employment, his wife followed in about a month, having rented the place and sold some of the household effects, storing some, and taking some with her.Black went into business at El Paso in a few months, and lived there with his family on rented premises.(2) In June, 1893, Black owed $99.00 on the lot, and owed P. M. Lea $200.00, and at that time made the deed to Lea for the same, with the understanding between Black and Lea's agent at El Paso that the deed was to stand as security for the debt of $200.00, and not for the $99.00.Lea later paid the $99.00.The property was not worth over $300 when the deed was made.(3) Lea lived in Corsicana all the time from 1889 to the present.About five months after Black made the deed, Lea returned it to El Paso for Mrs. Black's execution, to the end that he might use the property as security for a borrowing of money.Mrs. Black signed the deed, and went before a notary public to acknowledge its execution.The notary made a certificate not in formal compliance with the statute, and the deed was returned to Lea, who in December, 1893, sold and conveyed the lot to defendant Garner for a small cash payment and certain notes aggregate being $300.00, and about the value of the property at the time.(4) Garner bought said property, and paid the cash and the notes, without notice that the deed was a mortgage, and without notice that plaintiffs had lived, or intended to again live, upon the lot, and with the belief that by his purchase from Lea he acquired title to the property, and paid all taxes from the time he bought the property.Black visited Corsicana January, 1894, and for the first time learned that Lea had sold the lot to Garner.(5) During the years 1891-1893plaintiffs expected to return to Corsicana and reoccupy their lot, but communicated such expectation to no one there.They remained in El Paso and elsewhere.Black being part of the time without the state, until the filing of the original petition and later, they never owned a home at any other place.(6) The property was plaintiffs' homestead when they made the deed to Lea, and the sale by Lea to Garner was a violation of the contract made between Lea's agent and Black.(7)Defendant Garner expended in good faith about $700 in permanent improvements of the property before suit was begun, and without notice that plaintiffs claimed to own the property.The rent of the property, not including Garner's improvements, from January 1, 1894, when Garner took possession, to May 22, 1899, was worth $6.50 per month, and from the latter month till May 22, 1901, $10.00 per month.(8)The defendant Garner introduced in evidence a regular and consecutive chain of transfer, from and under the sovereignty of the soil, to himself, duly recorded, save and except that in the deeds from A. M. Byars and wife, Nancy, to Jas. Kerr and C. P. Kerr, dated January 31, 1861, and in the one from W. E. Black and wife to P. M. Lea, dated June 28, 1893, though in all things else regular, the acknowledgment in each deed omitted the word `willingly' or word of similar import from the certificate of the wife's acknowledgment.The deed from Black to Lea was filed for record April, 1896; the deed from Lea to Garner, May 16, 1894."

There was proof to sustain the finding of the trial court that the property in controversy was the homestead of appellants at the time that the deed was executed by W. E. Black and at the time that it was signed by Mrs. Black.There is no testimony tending to establish that Mrs. Black or her husband ever made any representation that would induce any one to believe that they had abandoned their homestead, but all their declarations were to the effect that the property was their home, and that they intended to return and live on it.Lea, as was found by the court, knew that the property was the homestead of appellants.He does not claim that any fraudulent representations were made by Black or his wife that induced him to accept the deed.No misrepresentations were made to Garner that induced him to buy the land.If the deed had been properly acknowledged by Mrs. Black, that would have been the sole act that could have tended to mislead Garner.But there was no deed executed, because there was no acknowledgment as prescribed by law of the instrument purporting to be a deed, and without such acknowledgment the deed is a nullity.It is the examination of the married woman which gives her deeds validity, and not her signature.Berry v. Donley, 26 Tex. 737;Speer, Married Women, §§ 113-136.In this case the acknowledgment was defective in omitting to state in the certificate that Mrs. Black acknowledged "such instrument to be her act and deed," or that she"declared that she had willingly signed the same," or any words of like import.While it has been held that the omission of the first of the above requirements would not be fatal to the certificate of acknowledgment, no case can be found holding that the last could be omitted.Belcher v. Weaver, 46 Tex. 293, 26 Am. Rep. 267;Thompson v. Johnson, 84 Tex. 548, 19 S. W. 784.

As hereinbefore stated, there was no evidence of fraud upon the part of Mrs. Black, and she received no benefit whatever from the transaction with Lea, and she could not be estopped by the deed, because it was in fact no deed.A deed not made in compliance with the laws as to a married woman, will not estop her from asserting her rights to homestead or separate property.Stone v. Sledge, 87 Tex. 49, 26 S. W. 1068, 47 Am. St. Rep. 65;Speer, Married Women, § 136.Whatever may have been done by W. E. Black in connection...