Mondragon v. Mondragon

• Decision Date: 15 March 1922
• Docket Number: (No. 6703.)
• Citation: 239 S.W. 650
• Parties: MONDRAGON v. MONDRAGON et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

239 S.W. 650

MONDRAGON v. MONDRAGON et al.^*

(No. 6703.)

Court of Civil Appeals of Texas. San Antonio.

March 15, 1922.

Rehearing Denied April 5, 1922.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Action by Martine Mondragon against Juan Mondragon and others. From an adverse judgment, plaintiff appeals. Reversed as to plaintiff.

E. P. Scott and J. M. Taylor, both of Corpus Christi, for appellant.

Russell Savage, of Corpus Christi, for appellees.

SMITH, J.

Upon her death in 1908 Pascuala Mondragon left a will in which she bequeathed lot 6 in block 59, in the city of Corpus Christi, in equal shares to her four sons, Juan, Tomas, Martiniano (also known as Martine) and Anacleto Mondragon. In July, 1921, Martiniano Mondragon brought this suit against his three brothers, alleging that the property was not susceptible of partition, and praying that it be sold and the proceeds distributed among the parties, and for an accounting of the rents. Juan Mondragon answered, alleging that he had purchased the interest of Martiniano in the lot, and prayed for judgment establishing his title. From an adverse judgment Martiniano brings this appeal.

The claim of Juan Mondragon to the property involved is primarily based upon the following receipt:

"Received from Juan Mondragon the sum of hundred sixty dollars $160.00 dollars in payment of my part that I have in the lot No. 6, block 59, inheritance which my mother Pascuala Mondragon left us, I not having any further right in said inheritance. I sign the sale to-day 24th day of February of 1916, in Corpus Christi, Texas, Nueces County.

                                 "I, Martiniano Mondragon
                

"Witnesses: Anacleto Mondragon, Jr. Porfirio Mondragon. Josefa Mondragon."

The entire instrument, including the signatures of the purported grantor and the three witnesses, was in the handwriting of, and was written by, Juan Mondragon, the grantee, although it is conceded that the grantor and witnesses were able to sign their own names to the instrument, but did not do so. It is also conceded that Martiniano, the grantor, did not acknowledge the execution of the instrument before any officer authorized by law to take acknowledgments, and that it had never been recorded or filed, or presented for that purpose, but had remained in the custody of Juan Mondragon up to the time it was produced upon the trial of the cause. In verified pleadings Martiniano Mondragon denied that he had ever sold the lot to Juan, or executed, or authorized any one else to execute for him, the instrument mentioned, which he alleged, under oath, was a forgery. Upon the trial he testified that he had never sold the property to Juan, and that he had not only not executed, nor authorized any one else to execute, the instrument, but had never seen nor heard of it until it was produced upon the trial by Juan. The latter, as well as the three witnesses, testified that Martiniano had authorized Juan to sign his name to the instrument, and that the three witnesses had authorized him to also subscribe their names as witnesses. The trial court found in accordance with this testimony.

Appellant challenges the validity of the instrument in question upon the ground that it contravened the statute of frauds: (a) That it was not signed by the purported grantor; (b) was not witnessed by any subscribing witness; (c) was not acknowledged by the grantor before any officer authorized to take acknowledgments; and (d) the land sought to be affected thereby was not sufficiently described.

In testing the sufficiency of the instrument in question, the following articles of the statutes must be considered:

"Art. 1103. Conveyances Must be in Writing, Signed and Delivered.—No estate of inheritance or freehold, or for a term of more than one year, in lands and tenements, shall be conveyed from one to another, unless the conveyance be declared by an instrument in writing, subscribed and delivered by the party disposing of the same, or by his agent thereunto authorized by writing."

"Art. 1108. Other Forms and Clauses Valid. —No person shall be obliged to insert the covenant of warranty, or be restrained from inserting any clause or clauses in conveyances hereafter to be made, that may be deemed proper and advisable by the purchaser and seller; and other forms not contravening the laws of the land shall not be invalidated.

"Art. 1109. Must be Witnessed or Acknowledged. —Every deed or conveyance of real estate must be signed or acknowledged by the grantor in the presence of at least two credible subscribing witnesses thereto; or must be duly acknowledged before some officer authorized to take acknowledgments, and properly certified to by him for registration."

"Art. 1116. Failing as a Conveyance, Shall be Valid as a Contract.—When an instrument in writing, which was intended as a conveyance of real estate, or some interest therein, shall fail, either in whole or in part, to take effect as a conveyance by virtue of the provisions of this chapter, the same shall nevertheless be valid and effectual as a contract upon which a conveyance may be enforced, as far as the rules of law will permit."

"Art. 3965. Written Memorandum Required to Maintain Certain Actions.—No action shall be brought in any of the courts in any of the following cases, unless the promise or agreement upon which such action shall be brought, or some memorandum thereof, shall be in writing and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized. * * *

"4. Upon any contract for the sale of real estate or the lease thereof for a longer term than one year. * * *"

In the matter of form the writing here involved was sufficient to constitute such "instrument in writing" as contemplated in the statutes. Fulton v. Robinson, 55 Tex. 401; Morrison v. Dailey (Tex. Sup.) 6 S. W. 426. An instrument almost identical with this was held, in the Fulton v. Robinson Case, to be sufficient, the writing in that case being in the form of a receipt, as here:

"Received of James Henderson three hundred dollars, in part payment of a certain tract of land, being my own headright, lying on Rush creek, in the cross timbers, this 23d March, 1859."

The receipt in the instant case shows the names of the parties and the amount and payment of the consideration, and, while the description of the land is within itself wholly insufficient, yet, by reference to the will of Pascuala Mondragon, therein referred to, the full description of the lot is readily ascertainable. It was by similar means that the properties involved in the Fulton-Robinson and Morrison-Dailey Cases were located, and the imperfect descriptions in the conveyances were thus upheld. These conclusions dispose of all of appellant's complaints except those directed at the manner of execution of the instrument involved.

It will be observed that, in the execution of the receipt here involved, not a single requirement of the statute has been literally complied with. It was neither written nor executed by the purported grantor. It was neither written nor personally subscribed by either of the three purported subscribing witnesses. Although both grantor and witnesses could have written the instrument and signed their names thereto, neither of them made his mark thereon, nor put his hand to it for any purpose whatsoever, nor was execution acknowledged by either of them before any officer authorized by law to take acknowledgments. It was never recorded, or filed or presented for that purpose, but remained in the possession of the purported grantor, and was never brought to the light of day until produced by grantee upon the trial of this cause, more than five years after its purported execution, when it was disclosed and conceded that the entire instrument, including the signatures of grantor and subscribing witnesses, was in the handwriting of, and was written exclusively by, its sole beneficiary, the grantee. The question is whether or not this transaction can in any state of facts be so purged of the grave suspicion which obviously permeates it as to give the resulting writing the form and dignity with which a solemn conveyance of real property should be invested, so as to evade the effect of the statute of frauds. It should be said at the outset that the trial court's finding of fact, that the grantor and subscribing witnesses were present and authorized the grantee to sign their names to the receipt, while in direct conflict with the testimony of the grantor and his wife, is supported by the testimony of the subscribing witnesses, as well as other circumstances developed upon the trial, and it may be further said that the finding is supported by the preponderance of the evidence. So that the question is resolved into one of law.

The statutory formalities required in the execution of deeds conveying real estate have been so relaxed by liberal construction and application that it may be well said they are no longer given anything like literal effect. The acknowledgment of a deed, or the signature of subscribing witnesses, is held to be essential for the purposes only of registration and notice; for, without acknowledgment or subscribing witnesses, a deed is nevertheless, binding as between the parties thereto when executed by the grantor, in which case the execution may be proven as at common law. Clapp v. Engledow, 82 Tex. 290, 18 S. W. 146; McLane v. Canales (Tex. Civ. App.) 25 S. W. 29; Robb v. Robb (Tex. Civ. App.) 41 S. W. 92. And, since the abrogation of the rule inhibiting parties from testifying in their own behalf, execution by the grantor may be...