Hill v. Foster

• Decision Date: 21 March 1945
• Docket Number: No. A-278.,A-278.
• Citation: 186 S.W.2d 343
• Parties: HILL v. FOSTER et al.
• Court: Texas Supreme Court

Page 343

186 S.W.2d 343

HILL v. FOSTER et al.

No. A-278.

Supreme Court of Texas.

March 21, 1945.

Rehearing Denied April 18, 1945.

Error to Court of Civil Appeals of Seventh Supreme Judicial District.

Action by Hamlin L. Hill against W. N. Foster and others in trespass to try title to recover certain lands, wherein defendants brought a cross-action in trespass to try title. A judgment for defendants was affirmed by the Court of Civil Appeals, 181 S.W.2d 299, and the plaintiff brings error.

Affirmed.

J. R. Hill, of Houston, and R. E. Schneider, Jr., of George West, for plaintiff in error.

W. N. Foster, of Conroe, E. R. Campbell, of Houston, and Joe Strode and Claude L. Madeley, both of Conroe, for defendant in error.

SHARP, Justice.

Petitioner filed suit in trespass to try title to recover 100 acres of land in the Orsan Shaw Survey, situated in Montgomery and San Jacinto counties, Texas. Respondents answered by plea of not guilty and by cross action in trespass to try title. Trial was to the court without a jury, and judgment was rendered that petitioner take nothing by his suit and that respondents recover in their cross action. The Court of Civil Appeals affirmed the judgment of the trial court. 181 S.W.2d 299, 300.

The opinion of the Court of Civil Appeals contains a full statement of the facts and the contentions of the parties, and we refer to such opinion for such detailed statements. However, we will quote from the opinion of the Court of Civil Appeals the controlling facts:

"At the request of appellant the trial court filed findings of fact and conclusions of law which, in effect, are as follows: By stipulation it was agreed that Mrs. Annie Baxley was the common source of title and that whatever title the parties had was deraigned from her; that Mrs. Annie Baxley owned as her separate property on September 6, 1902 the 100 acres of land involved in this case; that she, joined by her husband, M. A. Baxley, deeded it on said date to R. Kimbro and the deed was filed for record in Montgomery county on March 11, 1904 * * *; that on May 31, 1924 R. Kimbro and wife deeded said land to A. L. Kayser and the deed was recorded in Montgomery county on July 25, 1925; that A. L. Kayser owned a one-half undivided interest therein and held the other one-half undivided interest for appellee, W. N. Foster; * * * that on January 12, 1942 Mrs. Annie Baxley, joined by her husband, M. A. Baxley, executed a deed of ratification and conveyance approving and ratifying the deed they had previously executed to R. Kimbro on September 6, 1902, conveying to R. Kimbro, his heirs and assigns, the said 100 acres of land and the said deed was filed for record in Montgomery county on January 24, 1942; * * * that on August 31, 1933 Mrs. Annie Baxley and her husband, M. A. Baxley, executed and delivered to San Jacinto Lumber Company a deed conveying all of their right, title and interest in the Orsan Shaw Survey in Montgomery County and San Jacinto County for a consideration of $75; that the said instrument was delivered to Hamlin L. Hill, President of San Jacinto Lumber Company, and the same was filed for record in Montgomery County on April 15, 1941 * * *; that Hamlin L. Hill was practically the sole owner of San Jacinto Lumber Company; that prior to the execution and delivery of the last-mentioned deed and prior to the payment of the consideration of $75 to appellant, Mrs. Annie Baxley told appellant that she had formerly sold 100 acres of land in the Orsan Shaw Survey to R. Kimbro some thirty-odd years previously thereto; that appellant was fully informed of the sale and conveyance of the land in question by the Baxleys to Kimbro and that the Baxleys claimed no title or interest in the said 100 acres of land after conveying it to Kimbro when he bought whatever interest the Baxleys had in the said land for the San Jacinto Lumber Company; that on February 25, 1942 the San Jacinto Lumber Company, acting through Hamlin L. Hill, President, conveyed all of its right, title and interest in the said land to appellant; that an abstract copy of the deed executed by the Baxleys to Kimbro on September 6, 1902, was introduced in evidence; that J. M. Dean, a Justice of the Peace of Geneva County, Alabama, took the acknowledgments of the Baxleys to the deed in question; that Dean was a neighbor of the Baxleys and knew them well; that the acknowledgment of Mrs. Annie Baxley was taken separate and apart from her husband; that the instrument was explained to her by the officer, Dean, before she signed it; that she signed it willingly and did not wish to retract the execution of the instrument; that the officer, J. M. Dean, impressed his seal on the certificate of acknowledgments; that the acknowledgments met the requirements of the Texas laws; that a Justice of the Peace in Alabama had the lawful right and authority to take acknowledgments of deeds; that the purchase of the land in question by appellant, Hamlin L. Hill, for San Jacinto Lumber Company after appellant had been advised that the Baxleys had many years previously thereto conveyed the said 100 acres of land in question to their neighbor, R. Kimbro, and that they did not want to do anything to injure or affect his title was mala fides; that the land in question was worth $6 to $8 per acre and that the consideration of $75 paid by appellant to Mrs. Annie Baxley was grossly inadequate; that appellees had rendered the land in question for taxes year by year and paid all the taxes to date on the same but that neither the San Jacinto Lumber Company nor appellant had paid any taxes on the same."

Petitioner contends that the Court of Civil Appeals erred in holding that the deed from Mrs. Baxley and husband to R. Kimbro, conveying her separate property, was valid and passed title to the land described therein, although the notary's certificate fails to show that the deed was explained to Mrs. Baxley and fails to recite that she did not wish to retract it. On the other hand, respondents contend that the notary's certificate of acknowledgment of Mrs. Baxley to the original deed was valid, and that the recitations contained in the certificate sufficiently show that the deed was explained to her and that she did not wish to retract it.

Respondents further contend that if the certificate be found defective in certain matters, the deed was not void but only voidable, subject to correction, and Mrs. Baxley's later voluntary ratification deed, properly acknowledged, relates back to the original instrument, and the testimony of the grantors showing that said first acknowledgment was properly made to the officer was admissible in connection with the admission of the ratification deed.

The certificate of acknowledgment attached to the deed, and complained of by petitioner, reads as follows:

"State of Alabama, Geneva County.

"I, J. M. Dean, Justice of the Peace in and for said County do hereby certify that on the 6 day of Sept. 1902 came before me the within named Annie Baxley who known or made known to me to be the wife of the within named M. A. Baxley being examined separate and apart from the husband touching her signature to the within deed acknowledged that she signed the same of her own free weill and accord and without feer, constraint, threats or persuasion on the part of her husband. In witness whereof I hereunto set my hand this 6th day of Sept. 1902.

                              "(Seal) J. M. Dean, J. P."
                

Article 6608 of the Revised Statutes of 1925 prescribes the form of the certificate of acknowledgment of a married woman to a deed. In order for the notary's certificate to a married woman's acknowledgment to a deed to be valid, it is not necessary to use the exact language of the statute. A substantial compliance with the statute will be sufficient, if it contains language which possesses the same meaning or represents the same facts. 1 Tex.Jur., §§ 148, 149, 151, 549, and 550. The Court of Civil Appeals in its opinion by Chief Justice Pitts correctly announced the rule as follows:

"No particular form of words is required to render a certificate of acknowledgment valid so long as it shows on its face that all essential prerequisites to a valid acknowledgment were in fact complied with. Williams et al. v. Cruse et al., Tex.Civ.App., 130 S.W.2d 908, writ refused; Spivy v. March, 105 Tex. 473, 151 S.W. 1037, 45 L.R.A.,N.S., 1109; Durst v. Daugherty, 81 Tex. 650, 17 S.W. 388; Belcher v. Weaver, 46 Tex. 293, 26 Am. Rep. 267; 1 Tex.Jur. 552, par. 151."

An examination of the officer's certificate of acknowledgment of Mrs. Baxley fails to show that he fully explained the contents of the deed to Mrs. Baxley, and this omission fails to meet the requirements of Article 6608. Veeder v. Gilmer, 103 Tex. 458, 129 S.W. 595, 596; Holland v. Votaw, 62 Tex.Civ.App. 91, 130 S.W. 882, 884, writ refused, 103 Tex. 534, 131 S.W. 406; Cates v. Greene, Tex.Civ.App., 114 S.W.2d 592, 594; Norton v. Davis, 83 Tex. 32, 36, 18 S.W. 430; Johnson v. Taylor, 60 Tex. 360; Langton v. Marshall, 59 Tex. 296, 298; Adkins-Polk Co. v. Rhodes, Tex. Civ.App., 13 S.W.2d 386, 387.

Dean was qualified to take the acknowledgment. The trial court found that the Baxleys were near neighbors to Dean and were well known to him, and that in taking the acknowledgment of Mrs. Baxley he complied with all the requirements of Article 6608, but that he failed to place on the deed a sufficient certificate of acknowledgment. The trial court found that Mrs. Baxley properly acknowledged the deed made to Kimbro, and that Dean failed to attach to such deed a proper certificate. For that reason the deed was not void but merely inoperative as a conveyance until the certificate was corrected. The Baxleys are not claiming any interest in...