Martin v. Bane

• Decision Date: 12 December 1969
• Docket Number: No. 17342,17342
• Parties: Mary MARTIN, Appellant, v. Lee S. BANE, Appellee.
• Court: Texas Court of Appeals

Page 142

450 S.W.2d 142

Mary MARTIN, Appellant, v. Lee S. BANE, Appellee.

No. 17342.

Court of Civil Appeals of Texas,

Dallas.

Dec. 12, 1969.

Rehearing Denied Jan. 16, 1970.

Jackson C. Burroughs, Dallas, for appellant.

Waller M. Collie, Jr., Collie & McSpedden, Dallas, for appellee.

BATEMAN, Justice.

The appellant Mary M. Martin, a feme sole, sued to set aside a deed by which she purportedly conveyed certain Dallas County real property to the appellee Lee S. Bane. She alleged that both her signature and that of the notary public who purportedly took her separate acknowledgment were forgeries, and that she had not acknowledged the deed or appeared before the notary for that purpose. By consent of the parties the case was submitted to the jury on only one issue: i.e., as to whether Henry Tirey, as notary public, signed the deed in question; and the jury answered that he did sign it. The trial court rendered judgment that appellant take nothing. We affirm.

In her third amended original petition appellant alleged that she acquired certain undivided fractional interests in the land by inheritance from her mother and that the land was the homestead of her parents. She also alleged.

'Plaintiff alleges that her father, F. L. Bane, under the laws of descent and distribution of this state, owned a Homestead lifetime estate in the property herein described and that Plaintiff's Title did not ripen in said property until after the death of her father, F. L. Bane, who died during the year of 1966 in Dallas, Texas and that prior to that time Plaintiff and her brother, W. F. Bane, had only the Title of remainderman under the laws of this state * * *.' (Italics ours.)

Appellee specially excepted to the italicized phrases because they were not allegations of fact but conclusions of law, and erroneous conclusions of law at that. The court sustained that special exception and appellant contends in her first point of error that she was thereby prevented from offering testimony explaining her failure to discover the forged deed prior to the death of her father, and from showing to the jury that she had no legal right to sue until after her father's death, thus accounting for her 18-year delay and apparent laches in bringing the suit.

The point is without merit and is overruled. The phrases excepted to were as stated, only legal conclusions and not allegations of facts upon which the court might make proper conclusions of law.

Moreover, if this was error it was harmless for in a subsequent amended petition she alleged the facts pertaining to her family history as it affected her title, the fact that her father lived on the property until his death, and that the deed conveyed only a 'remainderman's interest with no right of possession' and that appellant's right 'would not mature until her father's death.' These facts were also testified to without objection. Therefore, there was ample pleading and evidence to support appellant's explanation to the jury of her delay in bringing suit. Rule 434, Vernon's Texas Rules of Civil Procedure.

Appellant's second point of error complains of the sustaining of appellee's special exception to an allegation contained in appellant's third amended original petition to the effect that the notary public failed to comply with Vernon's Ann.Civ.St. Art. 5955, in that he did not keep a well-bound book and enter therein the information pertaining to the acknowledgment. Briefed with this point is appellant's third point of error complaining of the exclusion of certain testimony of the notary, offered by appellant, admitting that he did not comply with the aforesaid statutory requirements.

The failure of the notary public to comply with the statute in this respect does not in any way affect the validity of the instrument to which the certificate of acknowledgment is attached, Hunter v. Struggs, 352 S.W.2d 289 (Tex.Civ.App., Houston 1961, writ ref'd n.r.e.), and would not in our opinion constitute evidence of probative value to prove that the acknowledgment had in fact not been taken.

The second and third points are overruled.

By her fourth point of error appellant complains of a statement by the trial court to the jury just prior to the introduction by appellee of the witness Ira O. Martin as follows:

'Now, members of the jury, I have sworn in a gentleman last night, after you left, and he had to work all night. I ordered him to be back here at 10:30. We are going to have just a five minute recess to hear this man's testimony so that he can go back home and go to bed and be ready to work tonight.'

After the recess the witness Martin testified that he was the former husband of appellant, that he had signed the deed in question and had seen the appellant sign it also. Appellant argues that the court's remarks gave undue prominence to Martin's testimony and was a comment on the weight thereof, putting the jury in sympathy with the witness and causing the jury to give undue weight to his testimony, and was highly prejudicial to appellant.

The trial judge's remark, while completely unnecessary, cannot be construed to have the effect of telling the jury that the court was impressed by the importance of the witness, or as constituting a comment on the weight of his testimony. Nor do we think it could be said to excite the jurors' sympathy for the witness or cause them to give any more weight to his testimony than they would if the remark had not been made. The fourth point is overruled.

Appellant's fifth and sixth points complain of certain statements by the trial judge during the rebuttal jury argument of Mr. Burroughs, appellant's counsel. Although appellant had pled and testified that she had not signed the deed, she did not request an issue thereon. In his argument to the jury counsel for appellee stressed this circumstance at some length, advising the jury that this could be taken into consideration by them 'in deciding who's telling the truth in this lawsuit, and on which side of this lawsuit the honesty lies.' Mr. Burroughs made no objection to that argument, but in his rebuttal stated that his adversary's argument, just mentioned, was 'a criticism of the court.' Whereupon a spirited hassle erupted between the lawyers, in the course of which Mr. Burroughs said to the jury:

'If you're going to find that Henry Tirey didn't sign it, then you're going to find she (appellant) didn't sign it.'

The court sustained an objection to that argument and instructed the jury not to consider it for any purpose. Whereupon the following ensued:

'MR. BURROUGHS: Note our exception. Do I understand, Your Honor, that--

THE COURT: (Interposing) You may understand this, that if I had wanted this jury to answer a question about whether Mary Martin had signed that deed of May the 6th, 1948, I would have asked the jury the question, but you did not want me to ask the jury that question, and that's in the record outside the presence of the jury.

MR. BURROUGHS: Make the notation we take a full Bill of Exception to the Court's argument to the jury.

THE COURT: You're the one that asked the Court to make a ruling.

MR. BURROUGHS: I don't know how in the world Henry Tirey could have signed it unless Mary signed it, and if Mary didn't sign it, Henry didn't sign it. I don't understand the Court at all.

THE COURT: Well, I understand this, that you specifically, and it's in the record in this case, did not ask me--in fact, I have a copy of No. 1.

MR. BURROUGHS: That's exactly right, Your Honor.

THE COURT: You asked me to take it out.

MR. BURROUGHS: That's right.

THE COURT: And not submit it to this jury.

MR. BURROUGHS: And I'm not used to having to argue with the Judge as well as the other side.

THE COURT: The only thing I'm doing is making a ruling on your objection, and I'm telling the jury again, do not consider his argument on this point in this case for any purpose.

MR. BURROUGHS: All right.

THE COURT: If I had wanted the jury to answer the question about whether Mary Martin signed the deed or not, I would have asked you, but upon the specific request of Mr. Burroughs, I did not ask it, although I had it prepared and still have it right here.

MR. BURROUGHS: I did not think it was necessary to do so because this covered all of it, and I've got a right to tell him that, and I take exception to the Court's arguing to the jury and the instruction to the jury. I have my rights, too, Your Honor.

THE COURT: I adhere to my request and I adhere to the instructions that I have given the jury.

MR. BURROUGHS: All right.

THE COURT: You have about three minutes to bring your argument to a close.

MR. BURROUGHS: Thank you, Judge, it will be a pleasure. I'm not accustomed to having to fight with the Judge also, Judge.'

Mr. Burroughs then completed his argument and, as soon as the jury retired, moved for a mistrial because of the events just mentioned, which motion was overruled.

We hold that the said remarks of the court were improper and not invited by appellant, and that they probably prejudiced appellant's cause before the jury.

Appellant's theory was that, in view of the statute then in effect (Vernon's Ann.Civ.St Art. 1299) and decisions under it, whether she signed the deed or not, her attack on it in the last analysis depended for success on showing that she did not acknowledge it separately. She relies on Wheelock v. Cavitt, 91 Tex. 679, 45 S.W. 796 (Tex.1898); Lummus v. Alma State Bank, 4 S.W.2d 195 (Tex.Civ.App., Waco 1928, no writ); Robertson v. Vernon, 12 S.W.2d 991 (Tex.Comm'n App.1929, jdgmt. adopted); Keller v. Downey, 161 S.W.2d 803 (Tex.Civ.App., Beaumont 1942, affirmed in Humble Oil & Refining Co. v. Downey, 143 Tex. 171, 183 S.W.2d 426). Therefore, she reasons that this last question was the only ultimate issue entitled to be submitted; that if the jury found that she did acknowledge it in compliance with the statute, or appeared before the notary for that purpose, title would pass even though she may not...