Davis v. Agnew

• Decision Date: 30 November 1886
• Citation: 2 S.W. 43
• Court: Texas Supreme Court
• Parties: DAVIS and others <I>v.</I> AGNEW.

2 S.W. 43

DAVIS and othersv.

AGNEW.

Supreme Court of Texas.

November 30, 1886.

Appeal from Hunt county.

Action to recover possession of land. Judgment of lower court affirmed. The facts are sufficiently stated in the opinion.

E. W. Terhune, for appellants. Mathews & Neyland, for appellee.

STAYTON, J.

The appellee shows title to the land described in his petition by regular chain of transfer from the original grantee to himself, and was entitled to recover unless the appellants have shown, as they claim, that they are purchasers from one of the heirs of the original grantee under such circumstances as entitle them to hold against the unrecorded deeds under which the appellee claims. Under the facts shown, the appellants cannot hold any part of the land through the deed made by Ephraim Woodson, one of the heirs of the original grantee; for whatever title passed through that deed vests in John C. O'Neal or his assignees. The title of the appellants rests upon the deed made by Margaret Forshee and her husband. Margaret Forshee was one of the heirs of the original grantee, and if no title passed by the deed made by her and her husband to the person through whom the appellants claim, then an inquiry as to whether they would be entitled to protection under the registration laws, if title did so pass, becomes unnecessary. The deed from Margaret Forshee and her husband, when offered, was excluded, on the ground that the certificate of the officer taking her acknowledgment did not show that the deed had been so executed as to pass title to the separate estate of a married woman. The certificate of the officer is as follows:

"State of Missouri, County of Greene: Be it remembered that Margaret Forshee and John Forshee, her husband, who was personally known to the undersigned, a notary public within and for the said county, to be the persons whose names are subscribed to the foregoing deed as parties thereto, this day appeared before me, and acknowledged the same to be their voluntary act and deed, for the uses and purposes therein contained; and the said Margaret Forshee, first being by me made acquainted with the contents of said deed, acknowledged, on an examination separate and apart from her husband, that she executed the same, she being the absolute owner of the real estate therein mentioned, freely, and without compulsion or undue influence of her husband.

                "Given under my hand and official seal this twelfth day of January, 1872
                [L. S.]       "T. H. B. LAWRENCE, Notary Public, Greene Co., Mo."
                

The objection made to this certificate was that it did "not show that at the time of acknowledging the deed she stated to the officer taking her acknowledgment that she did not at that time wish to retract her signature." The law in force at the time the certificate was made provided "that, when a husband and his wife have signed and sealed any deed or other writing purporting to be a conveyance of any estate or interest in any land, slave or slaves, or other effects, the separate property of the wife, if the wife appear before any judge of the supreme or district court, or notary public, and, being privily examined by such officer, apart from her husband, shall declare that she did...