Scales v. Johnson

• Citation: 41 S.W. 828
• Court: Texas Court of Appeals
• Decision Date: 17 April 1897
• Parties: SCALES et al. v. JOHNSON et al.<SMALL><SUP>1</SUP></SMALL>

41 S.W. 828

SCALES et al. v. JOHNSON et al.¹

Court of Civil Appeals of Texas.

April 17, 1897.

Appeal from district court, Hill county; J. M. Hall, Judge.

Trespass to try title by Texana S. Scales and J. R. Scales, her husband, against J. B. Johnson and others. From a judgment entered on a verdict directed by the court in favor of defendants, plaintiffs appeal. Affirmed.

Frost, Neblett & Blanding, for appellants. Tarlton & Morrow and McKinnon & Carlton, for appellees.

LIGHTFOOT, C. J.

The statement of the case by appellants is concurred in by appellees, and we adopt it: On March 11, 1895, Texana S. Scales, joined by her husband, J. R. Scales, instituted suit in the ordinary form of trespass to try title in the district court of Hill county, Tex., against J. B. Johnson and others, to recover the west half of the A. Pratt survey, in said county, alleged to be the separate property of Mrs. Scales. The defendants answered by plea of not guilty, limitation of three, five, and ten years, and improvements in good faith. Appellants replied to the pleas of limitations that the land was the separate property of Mrs. Scales; that she was married at and before the defendants took possession of the land, and that she had continuously since been married. On the trial it was shown that Mrs. Scales inherited the land involved from her father, W. C. Kelley, and that it was set aside to her by decree of partition on March 3, 1866. It was admitted that the title to the property was in Mrs. Scales unless the same had been devested by some act or deed on her part. It was also admitted that she was married, and the wife of J. R. Scales, prior to March 3, 1866, and has at all times since then been the wife of J. R. Scales, her co-plaintiff; that all of the appellees except J. B. Johnson, J. W. Johnson, A. E. Vinson, J. D. Miller, W. T. Brown, and W. H. Brown, claimed by deeds made by J. R. Scales, the husband of Texana Scales, under a power of attorney executed by the said Texana Scales, dated February 14, 1867, and recorded in the deed records of Hill county, Tex., which said power of attorney was signed and acknowledged by Texana Scales alone, while she was the wife of J. R. Scales. The said appellees also claimed under a ratification instrument executed by Texana Scales and her husband, J. R. Scales, and acknowledged by Texana Scales and her husband, and certified to in the manner required by law to pass the title of a married woman in real estate, and which said instrument of ratification is as follows: "The State of Texas, County of Rusk. Whereas, J. R. Scales, acting as attorney in fact for his wife, T. S. Scales, did at the several dates hereinbelow named, for the several considerations hereinbelow specified, make and execute, as said attorney, certain deeds of conveyance, as follows: First. A deed with general warranty to M. Frier, conveying, in consideration of $120, forty acres of land out of the Albert Pratt one-third league in Hill county, more particularly described in said deed bearing date August 16, 1871, recorded in Book N, page 533, of the Hill County Records. Second. A deed with general warranty to B. T. Howard conveying, in consideration of $317, 138 acres of land, more or less, out of the said Pratt survey, more particularly described in said deed bearing date April 19, 1872, recorded in Book N, page 120, of said records. Third. A deed with general warranty to J. J. Jenkins, conveying, in consideration of $345, 115 acres of land out of said survey, more particularly described in said deed bearing date July 11, 1892, and recorded in Book N, page 337, of said records. Fourth. A deed with general warranty to J. M. Webb, conveying, in consideration of $275, 96.65 acres of said land, more particularly described in said deed bearing date February 23, 1873, recorded in Book N, page 270, of said records; said land being out of said A. Pratt survey. And whereas, doubts as to the validity of their titles are entertained by the owners and occupants of the lands described and conveyed in the aforementioned deeds from the fact that the said T. S. Scales did not co-operate in the signing, execution, and delivery of said deeds: Now, therefore, in consideration of the premises, we, J. R. Scales and T. S. Scales, his wife, have fully ratified and confirmed, and by these presents do fully ratify and confirm, all and singular, the acts of the said J. R. Scales in the sale and disposition of said tracts of land, and in the making, execution, and delivery of the above-described deeds of conveyance. Witness our hands this, the 18th day of October, 1882. J. R. Scales. T. S. Scales." All of the defendants who claim under the power of attorney and said ratification instrument except Mary Harvick, W. C. Lewis, and W. F. Jameson bought from vendees of Scales after the date and registration of said ratification instrument, from the parties therein specified, paid a valuable consideration, and thought they were getting good titles. Mary Harvick, W. C. Lewis, and W. F. Jameson bought prior to said ratification instrument. The defendants J. B. Johnson, J. W. Johnson, and A. E. Vinson do not claim under the power of attorney, nor under said ratification instrument to the extent of 138 acres of the land involved. To this 138 acres they deraign title from William Choate to themselves, and sought to show that Mrs. Scales and her husband sold and conveyed said 138 acres to said Choate. The testimony offered to show the conveyance by Mrs. Scales and her husband to Choate was the ex parte interrogatories propounded during the pendency of this suit by appellees to Mrs. Scales, and admitted by the court, over the objection of appellants, as confessed. The appellees W. T. Brown and W. H. Brown claim 100 acres of land involved through a deed executed by J. R. Scales under said power of attorney, as agent of his wife, to J. D. Rummage, and proved, in addition thereto, that Rummage executed his note to J. R. Scales as a part of the consideration for said land; that Scales and wife sued Rummage on said note, and obtained judgment foreclosing the vendor's lien on said land, which said judgment was paid by Rummage. Appellants admit that the title of Miller is good and perfect. The case was tried on March 18, 1896, and the court instructed the jury to find for the defendants, which they did.

There were five questions originally presented for the consideration of this court: (1) Was the ratification instrument above copied, considered alone or in connection with the deeds executed by J. R. Scales as the agent and attorney for his wife, sufficient to devest the title of Mrs. Scales? 2. Was there error in admitting and taking as confessed the ex parte interrogatories propounded to Mrs. Scales? (3) Did the fact that Scales and wife sued Rummage on a note executed by him for the land deeded by Scales, and the fact that judgment was rendered on such note, with a foreclosure of the lien, and the fact that Rummage paid the judgment, devest the title of Mrs. Scales? (4) Was the evidence so free from conflict that the court acted properly in instructing the jury to find for the defendants? (5) Was it error to exclude the record of a deed from Mrs. Scales to Choate, offered by appellants to show that it did not pass the title of Mrs. Scales? The second question was expressly waived by appellants in their written argument, and the errors assigned thereon will not be considered. The other four questions are presented by proper assignments of error, and will be considered in the order above given.

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