Tiemann v. Cobb

• Decision Date: 24 March 1904
• Citation: 80 S.W. 250
• Parties: TIEMANN et al. v. COBB et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

80 S.W. 250

TIEMANN et al. v. COBB et al.^*

Court of Civil Appeals of Texas.

March 24, 1904.

Appeal from District Court, Harris County; Chas. E. Ashe, Judge.

Action by D. F. Tiemann and others against Howell Cobb and others. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Ira P. Jones, for appellants. Fisher, Sears & Sherwood and C. L. Bradley, for appellees.

GARRETT, C. J.

D. F. Tiemann and others brought this action of trespass to try title against Howell Cobb, Jesse Williams, Winnie Williams, Nelson Wright, and W. S. Hunt, for the recovery of certain land lying in the city of Houston. Wright made no appearance, and Hunt disclaimed title. After the plaintiffs had introduced their evidence, and the defendants having offered none, the court directed the jury to return a verdict for the defendants, and judgment followed in their favor. Title to the land in controversy was shown by the evidence to have vested in Ella L. Withers, the wife of W. L. Withers. A deed from W. L. Withers and wife, purporting to convey the land to John R. Harris, was excluded by the court on account of a defective acknowledgment. Deeds from Harris in regular chain of transfer to D. F. Tiemann & Co. were admitted only for the purpose of showing an outstanding title not connected with Ella L. Withers. Proof of survivorship and heirship to plaintiffs of the firm of D. F. Tiemann & Co. was made. The deed to D. F. Tiemann & Co. was executed November 26, 1868. The defendants Jesse Williams and Winnie Williams executed a deed March 1, 1898, to Nelson Wright, conveying the land in controversy to him. March 5, 1898, Nelson Wright conveyed to W. S. Hunt, and on March 30, 1898, Hunt conveyed to the plaintiffs. On March 28, 1898, the defendants Jesse and Winnie Williams entered into a lease contract with the plaintiffs, in which the premises in controversy were leased to these defendants for two years from that date. In said lease they acknowledged plaintiffs as owners of the land, and that they occupied the same as tenants of plaintiffs, and on same date executed to the plaintiffs a separate instrument by which they disclaimed title and acknowledged them as their landlords, and that they had always held as plaintiffs' tenants. Howell Cobb, in his answer, pleaded "Not guilty," and, by cross-bill, title to a part of the premises in controversy by deed from Nelson Wright dated November —, 1901.

In deraigning their title to the property in controversy, the plaintiffs offered in evidence the deed from W. L. Withers and his wife, Ella L. Withers, to John R. Harris dated January 10, 1865, and recorded January 12, 1865, but it was objected to by the defendants on the ground that the acknowledgment of the wife, Ella Withers, was not in accordance with law. The objection was sustained, and the deed excluded. In making his certificate, the officer who took the acknowledgment certified that the wife, "being by me examined privily and apart from her husband, and having the foregoing instrument fully explained to her, acknowledged the same to be her own act and deed, and that she did not wish to retract therefrom." The objection urged and sustained was that the certificate failed to show that the said Ella L. Withers had declared that she had willingly signed the same, and there were no words of equivalent import in the certificate. The form prescribed by the statute in force at the time the acknowledgment was taken, as it does now, required that the certificate should show that the wife had willingly signed the deed, but the statute provided that any certificate showing that the requisites of the law had been complied with should be as valid as the form prescribed. Pasch. Dig. art. 1003; Rev. St. 1895, art. 4621. According to the statute in force then, it was necessary that (1) the wife should acknowledge the instrument to be her act and deed; (2) she should declare that she had freely and willingly signed and sealed it; and that (3) she wished not to retract. The prescribed form omitted the word "freely." It is not necessary that the certificate should do more than show a substantial compliance with the law, and in doing so the three requirements need not be separately certified, but may be blended, provided they all substantially appear. Belcher v. Weaver, 46 Tex. 293, 26 Am. Rep. 267; Mullins v. Weaver, 57 Tex. 6. In certifying the acknowledgment of Ella L. Withers, the officer stated that she acknowledged the same to be her own act and deed. It is contended that the word "own," as used in the certificate, shows that the deed was freely and willingly signed. "Own," as an adjective, means peculiar, proper, exclusive, particular, individual, private, and is indicative of possession. Cen. Dic., in verb. "own." The use of the word does nothing more than indicate that the signing of the deed was the wife's act, in compliance...