Thompson v. Johnson

• Decision Date: 10 May 1892
• Parties: THOMPSON v. JOHNSON <I>et al.</I>
• Court: Texas Supreme Court

19 S.W. 784

THOMPSON v. JOHNSON et al.

Supreme Court of Texas.

May 10, 1892.

Commissioners' decision. Section A. Appeal from district court, Grayson county; H. O. HEAD, Judge.

Trespass to try title by Martha J. Thompson against J. N. Johnson and others. Judgment for defendants. Plaintiff appeals. Affirmed.

G. G. Randell and Wilkins & Hazlewood, for appellant. Maughs & Peck and J. W. Finley, for appellees.

COLLARD, J.

Suit — trespass to try title — by appellant, Martha J. Thompson, against appellees for 37½ acres of land in the Caruthers survey, in Grayson county. Defendants pleaded "not guilty." The case was tried by the court, and judgment rendered upon his findings of fact and law for defendants, to which Mrs. Thompson, the plaintiff, excepted, and gave notice of appeal. There is no statement of facts. The court's findings are as follows:

"The land was the separate estate of Martha J. Thompson. Her husband, J. G. Thompson, died in 1879. August 3, 1872, plaintiff, joined by her husband, James G. Thompson, executed a deed for the land in controversy in this suit to W. W. Purinton. That said deed was acknowledged before J. P. Hopson by plaintiff and her said husband. That on May 18, 1872, the clerk of the district court of Grayson county, Texas, appointed said J. P. Hopson in the manner and for the purpose shown by the following paper:

"`The state of Texas, county of Grayson: Know all men by these presents, that I, S. Bostick, clerk of the district court of Grayson county, Texas, do hereby nominate, constitute, and appoint J. P. Hopson my special deputy to take the acknowledgments of James G. and Martha J. Thompson to a deed made from them, the said James G. Thompson and Martha J. Thompson, his wife, to John K. Miller, and that his acts in so doing are entitled to full faith and credit. Witness my hand and official seal this, the 18th day of May, A. D. 1872. [Seal.] S. BOSTICK, Clerk.'

"`I, J. P. Hopson, do solemnly swear that I will faithfully and impartially discharge the duties incumbent on me as a special deputy district clerk of Grayson Co., Tex., to the best of my skill and ability, and that I will support the constitution and laws of the United States and of this state; and I further swear that since the acceptance of the constitution of the United States, I, being a citizen of this state, have not fought a duel with deadly weapons, or acted as second in fighting a duel, or knowingly aided any one thus offending; that I am not disqualified from holding office under the 14th amendment to the constitution of the United States; and, further, I am a qualified elector of this state. J. P. HOPSON. Sworn to and subscribed before me this May 18th, 1872. S. BOSTICK, Clerk.

"`Filed for record May 20th, 1872. S. BOSTICK, Clerk.'

"That said appointment and oath were recorded in the office of said district clerk, but no bond was given by said Hopson. That, before said Hopson took the acknowledgment of plaintiff and her husband to their deed to said W. W. Purinton, said district clerk verbally authorized said Hopson to take said acknowledgment saying to said Hopson that he would fix up the papers authorizing him to take said acknowledgment when he returned, which was never done. That said Hopson went to the house of plaintiff and her husband, in the country, to take said acknowledgment, accompanied by said Purinton. That said Hopson took said acknowledgment, and after doing so and attaching his certificate delivered said deed to said Purinton, without attaching the required seal, but said seal was afterwards attached by said district clerk in his office in the presence of and with the consent of said Hopson. That the certificate of acknowledgment to said deed made by said Hopson was as follows: `The state of Texas, county of Grayson: Before me, S. Bostick, clerk of the district court of Grayson county, personally came J. G. and Martha J. Thompson, to me well known, and acknowledged that they signed and delivered the foregoing deed for the consideration and purposes therein stated; and the said Martha J. Thompson, wife of said J. G. Thompson, being by me examined separate and apart from her said husband, and having the contents of said deed by me fully explained, she declared that she had signed the same of her own free will and accord, and wished not to retract her said act. Given under my hand and official seal on this, the third day of August, A. D. 1872. [Seal.] S. BOSTICK, Clerk. By J. P. HOPSON, Special Deputy. Filed for record Aug. 5, 1872, at 5 o'clock P. M. Recorded Aug. 6th, 1872, at 8 o'clock A. M. S. BOSTICK, Clerk. By E. C. FRY, Deputy.' When Hopson handed said deed to Purinton it was with the understanding that it was to be carried to the clerk to have the seal impressed thereon."

"(5) That said Hopson never acted as deputy district clerk, except to take the acknowledgment of the deed mentioned in the above-written instrument and the deed of plaintiff and her husband to said W. W. Purinton, and the above oath was made before the said district clerk, and no other appointment of said Hopson than that above set forth was ever made by said district clerk.

"(6) That the W. R. Caruthers survey was the community property of said W. R. Caruthers and plaintiff, and that by the verbal partition of said tract of land plaintiff became the sole owner of the east half of same, embracing the land in suit.

"(7) That the deed from plaintiff and her husband, Jas. G. Thompson, to W. W. Purinton, was duly and legally acknowledged and certified, and that said deed passed the title to the land in controversy to said W. W. Purinton.

"(8) That judgment should be rendered against plaintiff and in favor of the defendants J. M. Cook, J. A. Gilmore, the Denison Investment Company, J. B. McDougal, John Stockbridge, E. Perry, J. T. Munson, A. R. Collins, P. O'Donnell, J. N. Johnson, and R. H. Cohn; which is so ordered."

There is but one question...