Delay v. Truitt

• Decision Date: 05 January 1916
• Docket Number: (No. 885.)<SMALL><SUP>*</SUP></SMALL&gt
• Citation: 182 S.W. 732
• Parties: DELAY v. TRUITT.
• Court: Texas Court of Appeals

182 S.W. 732

DELAY v. TRUITT.

(No. 885.)^*

Court of Civil Appeals of Texas. Amarillo.

January 5, 1916.

Appeal from District Court, Swisher County; R. C. Joiner, Judge.

Action by J. H. Truitt, Sr., against James R. Delay. Judgment for plaintiff, and defendant appeals. Affirmed.

Martin, Kinder, Russell & Zimmermann, of Plainview, for appellant. Davis & Davis, of Center, and Culton & Taylor, of Tulia, for appellee.

HENDRICKS, J.

On the 1st day of May, 1875, the Commissioner of the General Land Office issued certificate No. 48 to S. J. Arnold and Angelina M. Barrett, in consideration of work performed in "opening and cleaning" the Angelina river. The certificate was located August 30, 1875, and the patent was issued the 17th day of October, 1876, vesting the legal title in the original holders of the certificate. On the 15th of February, 1875, Angelina M. Barrett executed a power of attorney to S. J. Arnold, for the purpose of authorizing him to receive the land certificates earned by them, for the work mentioned, from the Land Office, and transfer her interest in the certificates after having been received. On the 19th day of May, 1875, S. J. Arnold, for himself, and as attorney in fact for Angelina M. Barrett, before the location of the land, purported to convey in writing the whole of said certificate No. 48 to Joshua H. Truitt, the appellee herein. This transfer described the certificate as— "No. 48, for 640 acres of land, issued by the Commissioner of the General Land Office, on the first day of May, 1875, to S. J. Arnold and A. M. Barrett, as contractors for opening and cleaning out a channel in Angelina river, in accordance with an act to improve the navigation of the Sabine, Nechus and Angelina rivers and Pine Island bayou, in the state of Texas, approved April 29, 1874."

On the 27th day of May, 1879, after the issuance of the patent, Lyne T. Barrett and Angelina M. Barrett, as husband and wife, executed a deed reciting that —

"for and in consideration of the sum of $200.00. paid to us by Joshua H. Truitt, * * * for two land certificates, issued May 1st, 1875, by the Commissioner of the General Land Office, * * * and numbered respectively 31 and 48, have this day of the date hereof, sold, transferred and conveyed, and by these presents do sell, transfer and convey, unto the said J. H. Truitt, all the right, title and interest and claim that we have in and to the land described in the within patent,"

— the instrument closing with a special warranty. The foregoing deed was properly acknowledged by the husband, but improperly acknowledged by the wife, in that the certificate fails to recite that she "willingly" signed the instrument, and fails to use any equivalent expression synonymous with said term. Tiemann v. Cobb, 35 Civ. App. 289, 80 S. W. 250 (writ of error denied). This instrument was recorded May 7, 1900, in the deed records of Swisher county.

The acknowledgment of Angelina M. Barrett to the power of attorney executed to S. J. Arnold is in the same condition with reference to defective acknowledgment as the deed last mentioned. Arnold's acknowledgment, however, is in substantial compliance with the statute.

As we construe the record, the instrument registered in the deed records of Swisher county, evidencing the transfer of the certificate from S. J. Arnold and Mrs. Barrett to Truitt, was a certified copy by the Commissioner of the General Land Office of the original transfer on file in his office. This copy was recorded May 3, 1900, in the deed records of Swisher county. The foregoing constitute the documentary title of Truitt, the appellee.

The trial court peremptorily instructed the jury in favor of Truitt, to which appellant objected and properly excepted, on the grounds that the transfer of the certificate was not properly acknowledged, and the deed from Barrett and wife did not describe the land; that the record did not show a deed or transfer which would convey the interest of Arnold and Barrett; and, second, if title vested in Truitt, the same was not exhibited by the record, and the court had no right to assume notice to Delay as a matter of law.

The appellant Delay also objected to the introduction of the transfer of the land certificate on the grounds of defective acknowledgment and insufficient description, and likewise objected to the introduction of the deed of Barrett and wife, and the record of same, on the same grounds.

An acknowledgment to an officer is sufficiently shown when the certificate shows that the person signing, "acknowledged" the instrument, though the words "to me" are omitted. Hays v. Tilson, 18 Civ. App. 610, 45 S. W. 479 (writ of error denied).

Article 6831, Vernon's Sayles' Civil Statutes, prescribes:

"Each recorder shall record all copies of titles recorded in the General Land Office presented for record; provided, such copies are attested with the seal of the General Land Office."

Article 6842 recites that —

"the record of any grant, deed or instrument of writing authorized or required to be recorded, * * * (when properly acknowledged) shall be taken and held as notice to all persons of the existence of such grant, deed or instrument."

The record of the land certificate, with a proper acknowledgment of S. J. Arnold, it being a certified copy of same recorded in the deed records of Swisher county, affords constructive notice to subsequent purchasers of the divestiture of Arnold's interest, purchasing subsequent to the date of the record, though it is a transfer before location, and the registration of the certified copy of transfer was after patent. The transfer clearly designated the certificate — to whom issued, the date of issuance, the number of same, the amount of land called for — and named the act under which it was earned. The location of the land, and the patenting of same, if there were no intervening claims under the law, inured to the benefit of the transferee of the certificate, and in this instance placed the equitable title (at least of S. J. Arnold) in said transferee. Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102.

If there had been a warranty in the transfer of the certificate to Truitt, the subsequent location and patenting of the land would have carried with it the legal title, at least of Arnold, to the assignee of said certificate, though the patent was issued in the name of the original state's grantee of said certificate. Barroum v. Culmell, 90 Tex. 93, 37 S. W. 313; Miller v. Gist, 91 Tex. 335, 43 S. W. 264, 265; Baldwin v. Root, 90 Tex. 546, 40 S. W. 3. The last authorities mentioned, particularly Barroum v. Culmell and Miller v. Gist, in connection with the decision in Abernathy v. Stone, 81 Tex. 430, 16 S. W. 1102, exhibit the distinction.

As to the description in the deed from Barrett and wife, assigned as insufficient, the proof showed that the instrument was written on the back of the original patent to the land. The record of this deed from Barrett and wife to Truitt discloses that the deed immediately followed upon the records a registration of the patent, there being nothing whatever between the record of said patent and the record of the deed. The case of Harlowe v. Hudgins, 84 Tex. 107, 19 S. W. 364, 31 Am. St. Rep. 21, presents a record of a deed in such a similar condition, with some immaterial differences not necessary to note, as to constitute a controlling authority. It was there held error to exclude the registration of the deed on account of the alleged insufficiency of description.

The defendant, Delay, appellant herein, claims under a deed from Angelina Barrett and husband to T. C. Arnold; a deed from S. J. Arnold (one of the grantees of the certificate) and T. C. Arnold to John R. Arnold and R. H. Thompson; a deed from John R. Arnold to Thompson of the former's interest; a deed from R. H. Thompson to R. J. Dillard; from Dillard to A. L. Neal; and a judgment canceling a deed from A. L. Neal to him; said judgment establishing an equitable lien upon the land as a fund for reimbursement of money paid for said land. The deed from Barrett and wife to T. C. Arnold was executed in 1892, and placed of record in 1893. The deed from S. J. Arnold and T. C. Arnold to John R. Arnold and R. H. Thompson was executed in 1894, and placed of record the same year. The deed from John R. Arnold to R. H. Thompson, conveying an undivided interest, was executed October 16, 1912, and filed for record in Swisher county May 3, 1913. Appellee introduced the deed records of Swisher county (as well as the certified copy of the transfer of the certificate issued by the Land Commissioner and of the Barrett deed) without any objection, except as stated.

It is asserted that the land certificates earned by Mrs. Barrett with S. J. Arnold constituted her separate property. There is no basis in the statement of facts for that assertion unless it be said that at the time she signed the power of attorney...