Newton v. Emerson

• Decision Date: 27 April 1886
• Citation: 18 S.W. 348
• Parties: NEWTON <I>et al.</I> v. EMERSON <I>et al.</I><SMALL><SUP>1</SUP></SMALL>
• Court: Texas Supreme Court

18 S.W. 348

NEWTON et al. v. EMERSON et al.¹

Supreme Court of Texas.

April 27, 1886.

Appeal from district court, Dallas county; GEORGE N. ALDRIDGE, Judge.

Trespass to try title by Charles S. Newton and others, as the heirs of Charles G. Newton, against Emerson, Talcott & Co. and others, claiming by conveyance from Charles G. Newton. Plaintiffs are descendants of Charles G. Newton by his first wife. After the death of his first wife, Charles G. Newton married again, and acquired the land in controversy. This land Charles G. Newton conveyed to his second wife, by deed dated June 12, 1871. This deed was wholly written by another person, at Newton's request. It was not subscribed by Newton, but was acknowledged by him before a proper officer, and was filed for record. The petition showed these facts, and a demurrer to it was sustained. Plaintiffs appeal. Affirmed.

Leake & Henry and Chas. F. Tucker, for appellants. Simpkins & Smith, W. B. & G. G. Wright, John Bookhout, and H. G. Robertson, for appellees.

STAYTON, J.

The petition sets up the facts under which all parties to the action claim title to the property in controversy, and the only question which arises is as to the sufficiency of those facts to show title in the plaintiffs, or such of the defendants as claim title only through inheritance from Charles G. Newton. If the instrument acknowledged by him on June 19, 1871, and bearing date the 12th of that month, operated a transfer of his interest in the property, then no one claiming by inheritance through him can have title If that instrument had been subscribed by him, there is no contention that it would not have passed to his wife all the interest he held in the property. It is contended, however, as the instrument was not subscribed by him and not written by him, that it is therefore inoperative. The admitted fact is that he produced the instrument before an officer authorized to take acknowledgments of deeds, for the purpose of making the proper acknowledgment, and that before that officer he declared and asked him to certify, as the officer did, "that he signed, executed, and delivered the foregoing deed to be his act for the purposes and considerations therein stated." Under this state of facts it is unimportant that the entire instrument, including the name of Charles G. Newton, was written by another at his request; nor is it important whether he was present when it was written; for it is well settled that by his acknowledgment before the officer he adopted, and made his own, every word, including his own name, then upon the instrument. By that act and the delivery of the instrument he declared and made his name or sign, then on the paper, the evidence of his intention in reference to giving it validity and effect, as fully as though the name had been written by himself. Bartlett v. Drake, 100 Mass. 175; Clough v. Clough, 73 Me. 488; Nye v. Lowry, 82 Ind. 320; Willis v. Lewis, 28 Tex. 180; Adams v. Field, 21 Vt. 267; Armstrong v. Stovall, 26 Miss. 282; Pike v. Bacon, 21 Me. 287; Bird v. Decker, 64 Me. 552. It is to be regarded, then, as though entirely written by himself, for he declared that, as an entirety, it was his act; that he had signed and executed it. This declaration must be received as true, unless it appears that he was mistaken; that is, unless it be true that what appeared upon the paper at that time, if wholly written by the person named as maker, cannot in law constitute a signing. Conceding, then, that under the law in force at that time it was necessary to the validity of the instrument that it be "signed by the party to be charged therewith," the question arises whether the instrument, within the meaning of the law, under the admitted facts, was signed by Charles G. Newton. The instrument commences: "Know all men by these presents, that I, Charles G. Newton, of the county of Dallas, in the state of Texas, * * * have sold, and by these presents do sell, transfer, and convey unto Adeline L. Newton," etc.; and it concludes: "To have and to hold unto the said A. L. Newton, her heirs and assigns, forever, free from the claim of any and all persons. Given under my hand this twelfth day of June, 1871." The instrument, however, was not subscribed, nor did the statute then in force require it to be, as does the law now in force. A deed or other instrument may be said to be signed whenever the name of its maker is so written upon it as to evidence his intention to give authenticity to it. At common law the seal was the sign, and a sealing was regarded as a signing, — as the act evidencing the intention of the maker to give vitality to the instrument; so, under the laws of those states in which sealing has been dispensed with and subscription is not required, it has been very generally held that the writing of the name of the maker in the body of the instrument, in such connection as to evidence his intention to give effect, vitality, or authenticity to the entire writing as one completed instrument, is to be deemed a signing, within the meaning of the law. Fulshear v. Randon, 18 Tex. 277; Penniman v. Hartshorn, 13 Mass. 87; Johnson v. Dodgson, 2 Mees. & W. 659; McConnell v. Brillhart, 17 Ill. 361; Coddington v. Goddard, 16 Gray, 444; Hawkins v. Chase, ...