Mata v. Rangel

• Decision Date: 20 June 1968
• Docket Number: No. 15298,15298
• Citation: 432 S.W.2d 146
• Parties: Jose Pompeyo J. MATA, Appellant, v. Cirilo RANGEL et al., Appellees. . Houston (1st Dist.)
• Court: Texas Court of Appeals

Page 146

432 S.W.2d 146

Jose Pompeyo J. MATA, Appellant, v. Cirilo RANGEL et al., Appellees.

No. 15298.

Court of Civil Appeals of Texas.

Houston (1st Dist.).

June 20, 1968.

Opinion on Original Motion for Rehearing Sept. 12, 1968.

Second Rehearing Denied Oct. 3, 1968.

R. E. McDaniel, Winnie, Eugene T. Jenson, Anahuac, for appellant.

Everett H. Cain, Liberty, for appellees Cirilo Rangel and Maria Rangel.

COLEMAN, Justice.

This is a suit in trespass to try title. After a jury trial judgment was entered that appellant owned an undivided one-half interest in a certain tract of land located in Chambers County, Texas.

The judgment of the trial court was based on a jury finding that on January 9, 1958, the date on which Fidencia Enriques conveyed the tract of land at issue to appellant, he was married to her. This finding was based on evidence of a common law marriage. Some months thereafter, on September 24, 1958, and just prior to the death of Fidencia Enriques, they were married in a ceremonial wedding. The judgment entered, in effect, found that the deed from the wife to her husband was void, but that the husband was the owner of an undivided one-half interest in the land since Fidencia Enriques died intestate and without descendants.

It is appellant's contention that the deed in question was not invalid even if appellant and Fidencia were married on the date it was executed. This contention is based on an amendment to Article 4614, Vernon's Ann.Rev.Civ.St., enacted in 1957, which was in effect at the time the deed in question was executed. Section 1 of Ch. 407, Acts of the 55th Legislature, Regular Session, pp. 1233--1234, reads:

'Section 1. Article 4614, Revised Civil Statutes of Texas, 1925, as amended by Acts of 1929, 41st Legislature, page 66, Chapter 32, Section 1, is hereby amended so as hereafter to read as follows:

"Article 4614. Wife's Separate Property.

"(a) All property of the wife, both real and personal, owned or claimed by her before marriage, and that acquired afterward, by gift, devise, or descent, as also the increase of all lands thus acquired, is the separate property of the wife.

"(b) The wife shall, if she be 21 years of age or over and so elects as provided in subsection (d), have the sole management, control, and disposition of her separate property, both real and personal; and in connection therewith, she may, in her own name, contract and be contracted with, sue and be sued, without the joinder of her husband, and her coverture shall not be a defense in any suit or action based on such contracts. Such of her separate property as is not exempt under the laws of Texas in such case shall be subject to forced sale for the payment of her debts. The community property of the husband and wife, with the exception of the wife's personal earnings and the revenue from her separate property, shall never be subject to the payment of debts contracted by the wife except for those contracted for necessaries furnished herself and children.

"(c) If the wife shall not elect to have sole management, control, and disposition of her separate property, the joinder of the husband shall be necessary to the encumbrance or conveyance by the wife of her lands, and the joint signature of the husband and wife shall be necessary to a transfer of stocks and bonds belonging to her or of which she may be given control by this law.

"(d) A married woman 21 years of age, or over, may file with the County Clerk of the county of which she is a resident, a duly acknowledged statement that she thereby elects to have sole management, control and disposition of her separate property. From and after the date of filing of such statement, which shall be recorded by the County Clerk in the Deed Records of said county, such married woman shall have the full authority to deal with her separate property as set forth in subsection (b) and the limitation upon such authority contained in subsection (c) shall not thereafter apply."

On January 9, 1958, and for several years prior thereto, Fidencia Enriques was a resident of the State of Michigan. There was no county in Texas in which she could have filed a statement that she elected to have sole management, control and disposition of her separate property. In 1961 the Act was amended to provide that a married woman twenty-one years of age or over, who is not a resident of Texas, may file such a statement with the County Clerk of each county in Texas in which she owns real estate. There is no evidence that Fidencia Enriques had filed such a statement in the county of her residence in Michigan at the time the deed was executed. The Act of 1957 specifically provided that if the wife did not elect to have sole management of her separate property the joinder of her husband would be necessary for a conveyance of her separate estate. It also provided that all laws or parts of laws in conflict with this Act are repealed or modified To the extent of the conflict only.

Article 1299, R.C.S., then required joinder of the husband in a deed conveying the separate real estate of the wife, and also that the deed be separately acknowledged by the wife in the manner and form required by Articles 6605 and 6608, R.C.S.

Article 6605, R.C.S., reads as follows:

'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, that she has willingly signed the same, and that she wishes not to retract it.'

Assuming that the amendment to Article 4614, R.C.S., enacted in 1957 is constitutional, we would hold that Article 1299, R.C.S., was repealed by implication. On the other hand, there is no conflict between Article 4614 as amended and Article 6605, so that Article 6605 was not repealed. See Diamond v. Borenstein, 414 S.W.2d 454, (Tex.1967).

The deed from Fidencia Enriques to appellant was not acknowledged as required by Article 6605. If she was a married woman on the date of its execution, the married woman's acknowledgment was absolutely essential to the validity of the deed. Humble Oil & Refining Company v. Downey, 143 Tex. 171, 183 S.W.2d 426 (Tex.1944); Tompkins v. American Republic Corp., 248 S.W.2d 1001 (Beaumont Tex.Civ.App.1952). The freedom to manage her separate real estate is in no way impaired by the requirement of separate acknowledgment. A legislative intent to remove this safeguard against fraud and duress on the part of the husband cannot be implied from the amendment of Art. 4614 enacted in 1957. The caption of Senate Bill No. 24, Ch. 407, Acts of the 55th Leg., Regular Session, reveals no such intent, and the content of the Act clearly differentiates this case from the case considered by the Court of Civil Appeals in Diamond v. Borenstein, 410 S.W.2d 457 (El Paso Civ.App.1966, aff'd 414 S.W.2d 454).

There is testimony in the record from which the jury could have concluded that Fidencia and appellant entered into a common law marriage in the year 1940. The evidence is sufficient to support the answer made by the jury to the special issue submitted despite the contrary inferences to be drawn from the fact that the deed of January 9, 1958, to Pompeyo J. Mata was signed 'Fidencia Enriques' and from the fact that the parties subsequently entered into a ceremonial marriage. De Beque v. Ligon, 292 S.W. 157 (Tex.Com.App.1927); McIlveen v. McIlveen, 332 S.W.2d 113 (Houston, Tex.Civ.App., First Dist.1960).

There was testimony by one of the appellees, Cirilo Rangel, that he did not think Fidencia Enriques was married to appellant because she never signed her letters with the name 'Mata', but always 'Enriques'. He testified that Mata was not permitted in the funeral home prior to the funeral, but that someone pointed him out at the funeral, referring to him as the man who had been living with her, not as her husband. He testified that she was never known by any name other than Fidencia and Enriques.

This testimony is recited for the reason that appellant complains of the action of the trial court in permitting a certified copy of an oil and gas lease, executed by Fidencia Enriques and Jose J. Mata as husband and wife, to be placed in evidence. An objection to this evidence was made on the ground that a proper basis for its introduction was not shown in that there was no proof of due execution and that the provisions of Article 3726, R.C.S., were not met. The objections were proper and the trial court erred in admitting this evidence. Morris v. Ratliff, 291 S.W.2d 418 (Dallas Civ.App.1956, ref., n.r.e.); 23 Tex.Jur.2d, Evidence § 267; McCormick and Ray, Texas Law of Evidence, 2nd Ed., §§ 1276, 1288. This lease was signed Fidencia Enriquez Mata and acknowledged according to the Texas form for married women. It corroborated the oral testimony of a witness who negotiated the lease and who testified that he was introduced to Fidencia as Fidencia Mata in the presence of appellant and the lawyer who drew the lease. He did not, however, see them sign the lease, or see the original lease after it was signed. There was no other written instrument introduced in which Fidencia used the name Mata. The evidence was important and convincing, and not merely cumulative. The admission of this instrument requires the reversal of this case.

Appellant objected to the only special issue submitted in the court's charge on the ground that it submitted a question of law rather than an issue of fact. The issue submitted follows:

'Do you find from a preponderance of the evidence that Jose Pompeyo J. Mata and Fidencia Enriques Mata were husband and wife on January 9, 1958?

'Answer 'We do' or 'We do not'.

'ANSWER: 'We do'

'I charge you that in connection with the...