Humble Oil & Refining Co. v. Downey, 8052.

• Decision Date: 25 October 1944
• Docket Number: Motions No. 16126., Motions No. 16131.,No. 8052.,8052.
• Citation: 183 S.W.2d 426
• Parties: HUMBLE OIL & REFINING CO. et al. v. DOWNEY.
• Court: Texas Supreme Court

183 S.W.2d 426

HUMBLE OIL & REFINING CO. et al. v. DOWNEY.

No. 8052.

Motions No. 16126.

Motions No. 16131.

Supreme Court of Texas.

October 25, 1944.

Rehearing Denied December 8, 1944.

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

Trespass to try title by Clara May Downey against Grace Keller and the Humble Oil & Refining Company to recover certain realty, wherein Grace Keller filed a cross-action. Judgment for plaintiff was affirmed by the Court of Civil Appeals, Keller v. Downey, 161 S.W.2d 803, and defendants separately bring error. On motion for rehearing.

Judgments of the Court of Civil Appeals and of the district court affirmed.

E. E. Townes, R. E. Seagler, Sam R. Merrill, W. W. Kirkpatrick, and Merrill & Scott, all of Houston, Charles L. Black, and Black, Graves & Stayton, all of Austin, and E. R. Campbell, of Houston, for plaintiffs in error.

Thomas W. Blake, Jr., and H. Fletcher Brown, both of Houston, Thomas B. Greenwood, of Austin, and Collins, Jackson & Snodgrass, and Henry E. Jackson, all of San Angelo, for defendant in error.

Charles B. Wallace, of Dallas, amicus curiae.

CRITZ, Justice.

On original hearing we delivered an opinion in this case affirming the judgments of the Court of Civil Appeals and district court. The case is now before us on separate motions for rehearing, filed by Humble Oil & Refining Company and by Mrs. Keller and husband. In passing on such motions we hereby withdraw our original opinion, and in lieu thereof substitute the opinion which follows. The original opinion will not be published.

Opinion.

On and prior to February 8, 1929, Mrs. Grace C. Ruby, a widow, and her daughter, Mrs. Clara May Downey, wife of Dorsey Downey, were joint owners of 76.52 acres of land in the Choate League in Harris County, Texas. On the date just mentioned Mrs. Ruby, and Mrs. Downey, joined by her husband, Dorsey Downey, executed to Mrs. Grace Keller, niece of Mrs. Ruby, and cousin of Mrs. Downey, a deed of gift to the above land. This deed shows its nature as a gift deed upon its face, and appears to be duly acknowledged by all parties thereto before "J. J. Shoemaker, Notary Public, Montgomery County, Maryland." It was filed for record on May 3, 1929, and is duly recorded in the deed records of Harris County, Texas.

On April 28, 1934, Mrs. Grace Keller, joined by her husband, Hermann Keller, executed and delivered to Humble Oil & Refining Company, hereinafter called Humble, an "Oil & Gas Mining Lease," covering this land. This lease contract was executed to and accepted by Humble while the above-described deed to Mrs. Keller stood duly recorded as above stated. As we understand this record, as between Mrs. Keller and Humble, this lease is in full force and effect.

After the execution and delivery of both of the above-described instruments, Mrs. Downey, who has been divorced from her husband above named, filed this suit in the District Court of Harris County, Texas, against Mrs. Keller and her husband, and Humble, to recover an undivided one-half interest in this land, on the alleged ground that she did not personally appear before the notary who certified to her separate acknowledgment to the deed to Mrs. Keller. Mrs. Keller and Humble answered, setting up various defenses, among which was included estoppel by fraud upon the part of Mrs. Downey. We will not further detail the pleadings. It is enough to say that we regard all pleadings as sufficient to put in issue the questions of law we shall decide.

This case was submitted to a jury on special issues in the district court, and, based on the answers to such issues, judgment was entered for Mrs. Downey and against Mrs. Keller and husband and Humble. This judgment was, in all things, affirmed by the Beaumont Court of Civil Appeals. Keller v. Downey, 161 S.W.2d 803. Mrs. Keller and her husband, and Humble have prosecuted separate writs of error to this Court.

In response to special issues duly submitted, the jury found: That Mrs. Downey never appeared before the officer who certified to her separate acknowledgment to the Keller deed; that at the time Mrs. Downey signed the deed she did not know that she owned an undivided interest in the land covered thereby; that at such time Mrs. Downey knew that the purpose of such deed was to convey this land to Mrs. Keller; that at the time Mrs. Downey signed this deed there was in existence an understanding, agreement, or custom between her and the notary who certified to her separate acknowledgment, whereby such notary, without Mrs. Downey's personal appearance before him, would place upon any instrument bearing her genuine signature, and providing for a certificate of acknowledgment, his duly executed certificate showing due acknowledgment thereof before him; that such notary placed his certificate as to the acknowledgment of Mrs. Downey on this deed in accordance with, or as the result of, such understanding, agreement, or custom; that at the time Mrs. Downey signed this deed she understood and expected that it would be handed or sent to the notary who certified to her separate acknowledgment for the purpose of having him place thereon, in pursuance of his above-found understanding, agreement, or custom, his certificate of due acknowledgment; that when Mrs. Downey signed this deed she understood and expected that it would be delivered to Mrs. Keller with the genuine signatures of grantors and apparently valid certificates of acknowledgment thereon; that at the time Mrs. Downey signed this deed she knew, or under all the facts and circumstances in evidence ought to have known, that some other person, firm, or corporation would purchase from Mrs. Keller the land covered by this deed, or some part thereof or some interest therein, in reliance upon the apparent validity of such deed; that at the time Mrs. Downey signed the deed to Mrs. Keller she ought to have known, in the exercise of ordinary care and diligence on her part, that she had an interest in the land covered thereby; that Mrs. Downey, in the exercise of ordinary good faith on her part, ought not to have made known her claim or interest in this land prior to the time Humble purchased its lease thereon from Mrs. Keller on April 28, 1934.

As already shown, Mrs. Downey seeks in this suit to recover from Mrs. Keller an undivided one-half interest in this land. Also, she seeks to have such one-half interest, when recovered, freed from the Humble lease.

Article 6605 of our 1925 Civil Statutes provides that: "No acknowledgment of a married woman to any conveyance or other instrument purporting to be executed by her shall be taken, unless she has had the same shown to her, and then and there fully explained by the officer taking the acknowledgment on an examination privily and apart from her husband; nor shall he certify to the same, unless she thereupon acknowledges to such officer that the same is her act and deed, and that she has willingly signed the same, and that she wishes not to retract it." Article 6608 prescribes the form of a married woman's acknowledgment which meets the requirements of Article 6605. Article 1299 provides that: "The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband before some officer authorized by law to take acknowledgments to deeds for the purpose of being recorded, and certified to in the mode pointed out in articles 6605 and 6608." (Emphasis ours.)

Under all the decisions of this Court on the question, the separate acknowledgment of a married woman in the manner and form required by Articles 6605 and 6608 of our Civil Statutes of 1925 is absolutely essential to the validity of any instrument conveying her separate lands in this State. Noncompliance with such statutes renders the instrument an absolute nullity. Johnson v. Bryan, 62 Tex. 623; Veeder v. Gilmer, 103 Tex. 458, 129 S.W. 595; 23 Tex.Jur., p. 277; 1 Tex.Jur., p. 519, and authorities there cited. The only instances in which a married woman can be prevented from asserting the invalidity of a deed not separately acknowledged as required by our statutes is where she has been guilty of such active fraud in regard to the transaction as would estop her from pleading the invalidity of her acknowledgment or the certificate thereto. Johnson v. Bryan, supra.

It is the law of this State that when a married woman signs with her husband a deed conveying her separate real property situated in this State, and, in person, appears before a proper officer for the purpose of acknowledging the same, and such officer fails to do his duty in taking the acknowledgment, but makes the certificate in full compliance with the law as contained in Articles 6605 and 6608, supra, such certificate is conclusive against the married woman and in favor of an innocent purchaser who pays value, without notice that the officer failed to perform his duty as required by law. Wheelock v. Cavitt, 91 Tex. 679, 45 S.W. 796, 66 Am.St.Rep. 920; Pool v. E. H. Chase & Co. 46 Tex. 207; Kocourek v. Marak, 54 Tex. 201, 38 Am.Rep. 623; Waltee v. Weaver, 57 Tex. 569; Gulf Production Co. v. Continental Oil Co., 139 Tex. 183, 164 S.W.2d 488. On the other hand, we think it is also the law of this State that where it is shown that though a married woman signs with her husband a deed conveying her separate real property, but does not in person appear before a proper officer for the purpose of acknowledging it, and no acknowledgment is in fact made, the certificate of such officer, however formal it may be, is not binding upon the married woman, even in favor of an innocent purchaser for value and without notice. In such instances the married woman has the same right to impeach the certificate of her appearance before the officer falsely certifying to that fact that a man would have to assert that a deed...