Stone v. Sledge

• Decision Date: 24 May 1894
• Citation: 26 S.W. 1068
• Parties: STONE et al. v. SLEDGE et al.
• Court: Texas Supreme Court

26 S.W. 1068

STONE et al. v. SLEDGE et al.

Supreme Court of Texas.

May 24, 1894.

Error from court of civil appeals of third supreme judicial district.

Action of trespass to try title by E. A. Stone and F. A. Stone, her husband, against

R. J. Sledge and others. Before trial, E. A. Stone died, and her two children and only heirs, Olenna and Lela Stone, were made plaintiffs in her stead. A judgment in favor of defendants was reserved by the court of civil appeals (24 S. W. 697), and defendants bring error. Affirmed.

Denman & Franklin and W. O. Hutchison, for plaintiffs in error. L. H. Browne, Ford & Neighbors, and G. W. Jones, for defendants in error.

GAINES, J.

This action was brought by Mrs. E. A. Stone and her husband to recover a tract of land claimed to be her separate property. She died after the institution of the suit, intestate, and her two children, as her heirs, were made parties plaintiff in her stead. It was admitted that Mrs. Stone originally held title to the premises in controversy, by inheritance. The defendants asserted title through mesne conveyances, under a deed executed by F. A. Stone, the husband, to J. D. Morrison, on the 6th day of December, 1872. This was an ordinary warranty deed, in which the name of the husband alone appears as grantor. On the 1st day of March, 1873, the wife signed the conveyance, and acknowledged it before a notary public upon a privy examination. The officer appended a certificate which was materially defective, and insufficient to pass the wife's title, if the deed had been good in other respects. On the 29th day of May, 1874, the notary attached to the deed another certificate of acknowledgment, in full conformity to the requirement of the statutes in relation to the conveyance of property of married women; and, as a part thereof, he also certified that it was intended to amend his certificate previously made. The defendants also claimed that, if the alleged deed from F. A. Stone and wife to Morrison was inoperative as a conveyance of Mrs. Stone's title in the land, she had estopped herself, by her subsequent conduct, from asserting that title. The case having been submitted to a jury, the trial court instructed them, in effect, that no title was conveyed by the deed in question, but that the undisputed evidence showed that Mrs. Stone was estopped from claiming the land, and that, therefore, they should return a verdict for the defendants. The court of civil appeals held, upon appeal from the judgment in favor of the defendants, that the trial judge was correct upon the first proposition, but that in the second he was in error.

Upon the question whether one who signs a conveyance is bound by it, although he does not appear, upon its face, to be a party to the instrument, there is some conflict of opinion; but it seems to us that the great weight of authority is in favor of the proposition that, as to such person, the deed is wholly inoperative. In Bank v. Rice, 4 How. 225, Chief Justice Taney says: "In the premises of this instrument, it is stated to be the indenture of their respective husbands, in right of their wives, of the one part, and of the grantees, of the other part, — the husbands and the grantees being specifically named, — and the parties of the first part then grant and convey to the parties of the second part. The lessors of the plaintiff are not described as grantors, and they use no words to convey their interest. It is altogether the act of the husbands, and they alone convey. Now, in order to convey by grant, the party possessing the right must be the grantor, and use apt and proper words to convey to the grantee; and merely signing, sealing, and acknowledging an instrument in which another person is grantor is not sufficient." The same general rule prevails in Massachusetts (Catlin v. Ware, 9 Mass. 218), in Maine (Peabody v. Hewett, 52 Me. 33), in Ohio (Purcell v. Goshorn, 17 Ohio St. 105), in Alabama (Harrison v. Simons, 55 Ala. 510), and in Indiana (Cox v. Wells, 7 Blackf. 410). The contrary doctrine seems to have been announced in Mississippi and New Hampshire. Armstrong v. Stovall, 26 Miss. 275; Elliott v. Sleeper, 2 N. H. 525. We are of opinion that the rule which holds the deed inoperative is supported by the better reason, as well as by the weight of authority. It has been said that the signing of a deed manifests the intention of the signer to be bound by it, and that the courts should construe every instrument so as to give effect to the intention of the parties to it. But the intention of the parties to a written contract must be derived from the language of the contract itself; and, where there is nothing in the deed to show an undertaking on part of one of the signers to convey, we do not see very clearly that his signature manifests a purpose to make a conveyance. Where the title is in one person, and the consent of another is essential, under the law, to convey such title, and such other signs the deed, his name not appearing thereon as a grantor, the signature, it would seem, would merely manifest his consent to the conveyance. Such was the case of Ochoa v. Miller, 59 Tex. 460. There the husband signed the deed of the wife, which purported to convey her separate property, and in which he was not named as a party. He had nothing to convey, and his formal assent, by joining in her conveyance, was all that was required on his part to pass title to the property. It was properly held that his signature and acknowledgment to the wife's deed were sufficient to show that he had joined with the wife in the conveyance. Such, also, was the case of Armstrong v. Stovall, above cited, and Stone v. Montgomery, in the same court. 35 Miss. 83. They are very clearly distinguishable from a case like the present, where one signs a...