Peck v. McKellar

• Decision Date: 01 January 1870
• Citation: 33 Tex. 234
• Parties: W. D. W. PECK v. L. MCKELLAR AND WIFE.
• Court: Texas Supreme Court

33 Tex. 234

W. D. W. PECK

v.L. MCKELLAR AND WIFE.

Supreme Court of Texas.

1870.

1. On the trial of a suit for land the plaintiff's title deed was excluded as evidence for the reason that the notary public, in certifying its execution and acknowledgment, had used the seal of the county court instead of his own notarial seal; and by its exclusion the plaintiff was forced to ask leave to take a nonsuit, which leave was refused by the court below. Held, that it being apparent that the wrong seal was used by a mere mistake which the notary could rectify, and it further appearing that no negligence was imputable to the plaintiff, the nonsuit should have been allowed, and it was error to refuse it. Held further, that the costs resulting from the nonsuit should, under such circumstances, abide the result of the suit.

2. The right of a plaintiff to bring a second suit of trespass to try title constitutes no reason why he should be precluded from taking a nonsuit in his first suit.

3. A plea in reconvention does not debar a plaintiff from taking a nonsuit; but on the claim in reconvention the cause can proceed to trial and judgment, notwithstanding the nonsuit of the plaintiff. (On motion for rehearing.)

4. Answers of a defendant in trespass to try title, alleging title in the defendant and setting forth reasons to show such title, are not pleas in reconvention; but only amount to a plea of not guilty. (On motion for rehearing.)

APPEAL from Gonzales. Tried below before the Hon. Wesley Ogden.

Peck, the appellant, brought this suit against McKellar and wife to try title to a tract of land in Gonzales county. The defendants claimed two hundred acres of the land as their homestead. Peck derived his title through a sale made under a trust deed which had been made by McKellar and wife, and which was duly acknowledged and certified, except that the notary public had affixed the seal of the county court to his certificate of the execution and acknowledgment of the deed by the makers. This mistake of the notary does not appear to have been detected until the trial was in progress, and the deed offered in evidence by the plaintiff. The defendant objected to the deed, and it was excluded. The plaintiff asked leave to take a nonsuit, but it was refused him, and he excepted. It was shown that the notary was absent in a distant county, and affidavits that there was a showing of diligence and surprise in behalf of plaintiff, and tending to show that the county seal had been impressed by some one on top of the original seal of the notary.

The defendants disclaimed as to all of the land except their homestead of two hundred acres. Verdict and judgment were rendered for the defendants for their homestead tract, and for the plaintiff for the residue. A new trial being refused to the plaintiff, he appealed.

Mills & Tevis, for appellant. Waiving the question as to the time the county court seal was put to the certificate, the point of inquiry is, was not a state of facts presented at the trial, raised by the objection to the seal, as created such a degree of surprise to the appellant and his counsel as entitled him to a new trial? A slight recurrence to the facts will entitle him to this indulgence.

Jones' apprehensions were aroused from the indistinctness of the seal, which he communicated to his counsel. It is clear there was no county court seal to it at that time.

Subsequently, Jones, one of the trustees, drew the attention of his attorney, Lewis, who, in a few days thereafter, examined the impression, with O'Conner, another of the attorneys, and found no county court seal on the paper.

Lewis and O'Conner, on examination, both thought, the proper seal of the notary could be made out, though indistinct; yet in two months thereafter, the strongly-marked impress of the county court seal is found to the paper on the trial.

The affidavit of the appellant, together with the evidence of Lewis and Jones, are full as to the fact of surprise.

The notary was not called, as it was shown he was living in a distinct county, and the affidavit of the appellant shows what he reasonably expects to prove on a new trial by the notary.

We think the case comes within the rule of the following authorities, and should be reversed on account of a new trial being refused. Palmer v. Poppleston, 1 Hawks, 307, cited in 1 Gr. and Wat. New Trials, top p. 185; Boyce v. Yoder, 2 J. J. Marsh. 515, cited above, and also in 3 vol. Gr. and Wat. top p. 946; Blake v. Howe, 1 Aiken, 306, cited in 3 vol. Gr. and W. New Trials, top p. 176.

In asking a reversal, we suppose it clear, the notary could be called to show the accidental use of the county court seal of Gonzales county, instead of his own. Nichols v. Stewart, 15 Tex. 235.

Sheriffs may amend returns at any time. Porter v. Miller, 7 Tex. 482.

Notaries may amend their certificates (Chapman v. Allen, 15 Tex. 282), being within the discretion of court.

That reconvention prevents nonsuit, is a mere question of practice, and is not an inflexible rule of law, and may be varied in the administration of justice. Easterling v. Blythe, 7 Tex. 213.

J. F. Miller and W. H. Stewart, for the appellees. The defendants had plead their title, and asked to be quieted therein; this was in effect a plea in reconvention, and would prevent plaintiff from taking a nonsuit. Slaughter v. Halley, 21 Tex. 537; Egerton v. Power, 5 Tex. 501; 6 Tex. 412;7 Tex. 57;11 Tex. 28.

The statute provides that defendants in a case like this shall reconvene their title (Pas. Dig. art. 5295), and in case plaintiff is defeated that he may bring a new suit within a year. Pas. Dig. arts. 5298, 5299. Article 5298, just cited, provides that if verdict and judgment go against the plaintiff, it shall not be conclusive against him, but he may bring another suit within a year, clearly giving him the same privilege as if he had taken a nonsuit; so that even if he had the right to take a nonsuit, he has not been injured by its refusal, and this court will not reverse a case for an erroneous ruling that has worked no injury. 15 Tex. 430;17 Id. 661.

But I do not think the statute intended the plaintiff should have the right to dismiss or take a nonsuit after going into the trial, but will drive him to his second suit.

The second error assigned is that the court erred in excluding the evidence of F. Chenault, in connection with the deed of trust, from the jury.

The exception seems to be to the exclusion of the testimony of Chenault. How Chenault's evidence could be legal to explain the deed of trust when the deed of trust was itself rightfully excluded from the jury, I am unable to see; but I presume plaintiff's counsel meant to assign for error the exclusion of the deed of trust, in connection with the evidence of Chenault, from the jury.

The deed of trust appears first to have been acknowledged by Benjamin B. Peck, who was trustee; and afterwards, appended to Peck's acknowledgment, is what purports to be the certificate of S. Chenault, a notary public, to the acknowledgment of McKellar and wife; but it is attested by the seal of the county court, and not by the seal of the notary.

In order to convey the homestead, it is necessary that the wife be examined privily and apart from the husband, which fact must be attested by the hand and official seal of the officer taking it. Pas. Dig. art. 1003.

The law prescribes the particular kind of seal a notary public shall use (Pas. Dig. art. 4692), and his notarial acts are perfectly worthless unless attested by this seal. Pas. Dig. art. 4684.

The...