Reed v. Beheler, 14799.

• Decision Date: 13 December 1946
• Docket Number: No. 14799.,14799.
• Citation: 198 S.W.2d 625
• Parties: REED et ux. v. BEHELER et al.
• Court: Texas Court of Appeals

Page 625

198 S.W.2d 625

REED et ux. v. BEHELER et al.

No. 14799.

Court of Civil Appeals of Texas. Fort Worth.

December 13, 1946.

Rehearing Denied January 10, 1947.

Appeal from District Court, Tarrant County; Frank P. Culver, Jr., Judge.

Suit by R. E. Reed and Mary Louise Reed, his wife, against W. M. Beheler and others to cancel a conveyance and to recover a house and lot. From an adverse judgment, plaintiffs appeal.

Affirmed.

Clarence E. Farmer, of Fort Worth, for appellants.

Thompson, Walker, Smith & Shannon and F. B. Walker, all of Fort Worth, for appellees.

McDONALD, Chief Justice.

R. E. Reed and wife Mary Louise Reed brought this suit against W. M. Beheler and others to recover a house and lot in the City of Fort Worth. In view of the disposition we make of the appeal, it is necessary only to discuss the case as pleaded against Beheler, because the case against the other defendants depends upon cancellation of the conveyance of the property from appellants to Beheler.

In the petition it is alleged that appellants, plaintiffs in the court below, purchased the property in question in 1937. That they paid therefor the sum of $286.50 in cash, and executed a note in the principal sum of $2578.50 for the remainder of the purchase price. That plaintiffs paid the installments falling due during the years 1937, 1938, 1939, and a part of the year 1940. That appellants occupied the property as their homestead until Beheler dispossessed them in March of 1940. That Beheler obtained a deed to the property from appellants through fraud, said deed being dated March 22, 1940. That Beheler told Mrs. Reed that he would pay her the sum of $25 for the property and would assume the balance owing on the loan against the property. That Mr. Reed was insane at that time and that Beheler knew that he was insane. That Mrs. Reed did not appear before the notary whose purported acknowledgment appears on the deed, and that she did not acknowledge the deed before the notary. Other allegations need not be detailed, it being sufficient to say that the pleadings are ample to raise the issues concerning Mrs. Reed's acknowledgment of the deed and the insanity of Mr. Reed.

Only two issues were submitted to the jury. In answer to the first the jury found that Mrs. Reed appeared before the notary and acknowledged the deed. They failed to answer the second issue, which reads as follows:

"Do you find from the preponderance of the evidence that at the time R. E. Reed signed the deed in question he was mentally incapable of understanding the nature and effect of his act in so signing the same?"

Judgment was rendered on the verdict denying plaintiffs any of the relief sought. They have appealed, presenting twelve points of error.

It is first argued that the undisputed evidence shows that Mrs. Reed did not appear before the notary and acknowledge the deed, and in the alternative that a new trial should be granted because the evidence is insufficient to support the finding of the jury that she did so. Mrs. Reed, her daughter and her daughter's husband testified that she did not appear before the notary or acknowledge the deed. The certificate of the notary is in proper form. The notary did not testify. Beheler sent the deed to Mrs. Reed through the mail with a letter instructing her to sign it before a notary public, and further instructing her to return the deed, after it had been signed and acknowledged by herself and husband, attached to a draft as had been previously explained to her by Beheler. The deed was then sent to a bank in Fort Worth, attached to a draft for $25, bearing the purported signatures and acknowledgments of Mr. and Mrs. Reed. Beheler examined the deed, and paid the amount of the draft to the bank. He testified that he did not see the deed from the time he sent it to Mrs. Reed to the time it came to the bank in Fort Worth. He further testified that he paid an attorney to look over the deed to see whether it was properly signed and acknowledged before he paid the draft. There is nothing in the record to suggest that Beheler had any notice that the deed had not been properly acknowledged.

It is our opinion that the evidence is sufficient to support the finding of the jury that Mrs. Reed appeared before the notary and acknowledged the deed. Article 3723, Revised Civil Statutes, provides:

"All declarations and protests made and acknowledgments taken by notaries public, and certified copies of their records and official papers, shall be received as evidence of the facts therein stated in any court of this State."

The language of the statute is so plain that it does not require construction. The recitals of the certificate constitute evidence that Mrs. Reed appeared before the notary and acknowledged the deed. Stout v. Oliveira, Tex.Civ.App., 153 S.W. 2d 590; 1 Tex.Jur., pp. 584-587. Article 3723 appears to be a statutory declaration of the rule generally prevailing in other jurisdictions. 1 C.J.S., Acknowledgments, § 122, at page 882 et seq., and in 1 Am. Jur. pp. 374 et seq. The certificate is self-proving, and needs no supporting evidence at least to raise an issue as to the truth of its recitals. As against the testimony of Mrs. Reed, her daughter and son-in-law, all of whom were in the category of interested witnesses, the jury were warranted in finding as they did.

Appellants next contend that the trial court should have granted a new trial on account of newly discovered evidence. In their motion for new trial appellants alleged that they had discovered the whereabouts of the notary, that they had obtained his deposition wherein he testified that Mrs. Reed did not appear before him and acknowledge the deed, that appellants were not able to obtain the notary's deposition in time for the trial, that they made efforts to find him but failed for the reason that he was reported to have left the city of his residence and would not be back for some days. Granting the truth of the allegations of the motion for new trial, they are not sufficient to bring the case within the rules requiring the granting of a new trial on the ground of newly discovered evidence. Mrs. Reed's daughter testified that she knew the notary well, and that he was a friend of the Reed family. The most that the allegations in the motion for new trial show is that the notary was temporarily away from home at the time of the trial. There is no showing that appellants could not have obtained his deposition at some earlier date before the trial, and they did not seek to continue the case because of the lack of such testimony. A new trial will not be granted for newly discovered evidence unless diligence was exercised to procure the testimony at the former trial. 31 Tex.Jur., p. 95. The newly discovered evidence which will entitle the movant to a new trial is proof which has come to light since the trial. 31 Tex.Jur., p. 93. The burden is upon the movant to show that he exercised diligence to obtain such testimony. Id., p. 97. Appellants should have sought a continuance if, as alleged in their motion, the notary was absent from his home and, to quote from their motion, "would not be back for some days." 31 Tex.Jur., p. 103. The motion for new trial was not verified. For this reason alone the denial of a new trial on the ground of newly discovered evidence was not reversible error. Bradford v. Manney, Tex. Civ.App., 133 S.W.2d 601, writ dismissed; Krider v. Hempftling, Tex.Civ.App., 137 S.W.2d 83; Grays v. Harrison, Tex.Civ.App., 179 S.W.2d 1020.

Appellants have filed a motion in this court to amend the record on appeal by adding thereto the deposition of the notary, taken since the trial. In view of what has been said, it would serve no useful purpose to bring the deposition into the record filed in this court. The motion is therefore overruled.

As has been noted, the second special issue inquired whether Mr. Reed was...