Ward v. Baker

• Decision Date: 01 February 1911
• Citation: 135 S.W. 620
• Parties: WARD et al. v. BAKER et ux.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

135 S.W. 620

WARD et al. v. BAKER et ux.^†

Court of Civil Appeals of Texas.

February 1, 1911.

On Motion for Rehearing, March 22, 1911.

Appeal from District Court, Uvalde County; R. H. Burney, Judge.

Action by Thomas Baker and another against E. B. Ward, First State Bank, and others. From a judgment for plaintiffs, defendants appeal. Affirmed as to the First State Bank, and reversed and remanded as to other defendants.

G. B. Fenley, Claude Laurence, Geo. Powell, and Teagarden & Teagarden, for appellants. Martin, Old & Martin, for appellees.

FLY, J.

This suit was instituted by defendants in error, who for convenience will be denominated plaintiffs, against E. B. Ward, Mrs. Lou Bourke, George Powell, and the Wilson Lumber Company, to cancel a certain deed executed by plaintiffs to E. B. Ward, conveying lots 9 and 10, block 16, in the town of Sabinal, Uvalde county, Tex., and to cancel certain deeds of trust on said property, given to Mrs. Lou Bourke, George Powell being the trustee, and to cancel certain materialmen's liens on the property and a certain deed of trust; E. B. Ward being the trustee. The First State Bank was also sued by plaintiffs, because it had in its possession certain notes. The Wilson Lumber Company was dismissed from the suit, and the Hillyer, Deutsch, Jarratt Company intervened, alleging that it was the owner of the liens and notes given to the Wilson Lumber Company. Powell, who is sued as a trustee, Mrs. Bourke, E. B. Ward, and the intervener are the plaintiffs in error, but, to prevent confusion, will be spoken of as defendants, the position they occupied in the trial court. The grounds upon which the cancellation of the deed was sought were that it was obtained by fraud, threats, and misrepresentations upon the part of Ward, and on account of a partial failure of consideration. The liens were sought to be canceled on the ground that the property was the homestead of plaintiffs when they were executed. The cause was tried by jury and a verdict returned canceling the deed made by plaintiffs to Ward, and the different deeds of trust, except the first, and in favor of the lienholders for their respective debts, and for foreclosure of the first lien given to secure a debt of $500, and in favor of the First State Bank. The judgment was rendered in conformity to the verdict. This appeal is prosecuted by E. B. Ward, Mrs. Bourke, and Hillyer, Deutsch, Jarratt Company. No complaint is made of the judgment in favor of the First State Bank.

It was alleged in the answer of the defendants that the property in controversy was sold to E. B. Ward for $5,500, evidenced by four promissory notes, one for $2,000 to be held by the plaintiffs, two for $1,500 each, one to be indorsed by plaintiffs to Mrs. Lou Bourke and the other to Hillyer, Deutsch, Jarratt Company to secure those parties in debts due them by plaintiffs, and a fourth note for $500, which was to be sold and the proceeds divided so as to allow plaintiffs $125, Mrs. Bourke $125, and the Hillyer, Deutsch, Jarratt Company $250; that the sale was consummated, the notes were executed, and the deed delivered, and the notes indorsed as provided and liens held by the indorsees were canceled, and that the $2,000 was delivered to plaintiffs, and $125 in cash tendered to them. There was testimony tending to support those allegations, and yet the court failed in the general charge to submit that theory of the case to the jury, and, in fact, presented no phase of the case upon which a verdict could be returned in favor of the defendants. Not only was the whole of the court's charge devoted exclusively to phases of the case presented by the pleadings and evidence of the plaintiffs, but, in addition, two special charges requested by plaintiffs, which presented their side of the case, were given by the court. Under that state of circumstances, the court was requested by defendants to give a charge presenting defendants' side of the case. The charge should have been given. There is no strength in the contention that it was defective in not presenting therein the claim of failure of consideration as pleaded by plaintiffs. If defendants proved the matters pleaded by them and presented in the requested charge, there was no failure of consideration. If the facts pleaded were true, there was a sufficient consideration for the conveyance of the land, and the charge bases recovery on proof that Mrs. Baker knew and understood the consideration.

There was no issue made by the pleadings as to the lack of knowledge upon the part of Mrs. Baker as to the contents of the deed, nor was it alleged that the deed was not fully explained to her by the notary public, but it was admitted that the plaintiffs did "execute and acknowledge a good and sufficient warranty deed." The court, however, elaborately charged the jury on the duty of officers taking the acknowledgments of married women and instructed a verdict for plaintiffs if the notary public "failed, through negligence, ignorance or any other reason, to fully explain to her the true consideration," and made other false and incorrect statements to her. If the charge had embodied the law on the subject, it was erroneous to give it because not justified by the pleadings. But, if the pleadings had been full upon the issue as presented, the charge should not have been given, because it did not appear that Ward knew of the officer's fraud or negligence. The acknowledgment of the married woman being in statutory form, the law would presume that the officer performed his duty, and that the certificate of acknowledgment is true in all its details, and absolute verity would be accorded the statements contained therein, and, however fraudulent or negligent the conduct of the notary public may have been, it would not invalidate the deed in the absence of evidence connecting the defendants, or their agents, in any manner with the deception, fraud, or negligence of the officer. In the absence of such evidence, the certificate of the officer is conclusive of the facts therein stated. Hartley v. Frosh, 6 Tex. 208, 55 Am. Dec. 772; Shelby v. Burtis, 18 Tex. 645; Pool v. Chase, 46 Tex. 207; Williams v. Pouns, 48 Tex. 142; Kocourek v. Marak, 54 Tex. 201, 33 Am. Rep. 623; Waltee v. Weaver, 57 Tex. 569; Davis v. Kennedy, 58 Tex. 516; Moore v. Moore, 59 Tex. 54; Pierce v. Fort, 60 Tex. 469; Miller v. Yturria, 69 Tex. 549, 7 S. W. 206; Webb v. Burney, 70 Tex. 322, 7 S. W. 841; Coker v. Roberts, 71 Tex. 597, 9 S. W. 665; Wheelock v. Cavitt, 91 Tex. 679, 45 S. W. 796, 66 Am. St. Rep. 920. The evidence tended to show that Mrs. Baker was fully acquainted with the recitals in the deed and the terms of the notes, but under the instruction the deed would be invalidated, if not fully explained by the officer, although she had full knowledge of it from other sources. That proposition could not be sustained, for the reason that the failure to explain could not invalidate the deed unless a fraud was perpetrated upon Mrs. Baker, and a fraud could not be perpetrated if she knew all that could have been told her by the officer. That part of the charge in relation to fraud of the notary public in informing Mrs. Baker that the note for $2,000 bore interest at 8 per cent. had no basis in the facts. The notary public had fully performed his duty if he honestly explained the deed and notes according to their face, tenor, and effect. It was not his duty, in the absence of proof that he knew that the instruments did not express the true contract between the parties, to attempt any further explanation. He sought to remedy the only objection interposed by talking to Ward in regard to the interest, and stating to Mrs. Baker what Ward said. The officer could not have communicated to her any more than he did if he had ransacked every possible nook or corner for evidence, and his acts would meet the requirements of Blume v. White, 111 S. W. 1066, which makes the duty imposed upon officers in taking acknowledgments more onerous than any authority that has come under our notice. The statute (Rev. St. 1895, art. 4618) would seem to be fully satisfied with a full explanation of any conveyance, or other instrument purporting to be executed by a married woman, and does not enjoin upon the officer the duty of a full investigation of the facts and circumstances attending the execution of every instrument to be acknowledged by a married woman.

In the case of Cole v. Bammel, 62 Tex. 108, cited in Blume v. White, the Supreme Court, after stating that the statute exercises a watchful care over the rights of married women, and that their conveyances must be executed in strict conformity to the statute, says: "Reposing confidence in certain officers named for that purpose, it requires that one of them shall examine the wife privily and apart from her husband, explain the contents of the deed to her, and take her acknowledgment to the effect that she freely and voluntarily executed the deed, and wished not to retract it." The officer under that ruling was not required to do anything but "explain the contents of the deed to her." The other case cited in Blume v. White is Stallings v. Hullum, 79 Tex. 421, 15 S. W. 677, in which there is no intimation that the officer should do more than explain the contents of the deed. It may be the case that if it be shown that an officer is in possession of facts that tend to convince him that a fraud is being attempted upon the rights of a married woman, and that the contents of the instrument do not express the true terms of the contract, it would be incumbent upon the officer to inform her of the facts within his knowledge, and we incline to the belief that such must have been the status of affairs in the case under discussion. We infer that from the fact that the jury in the trial court in a question asked the judge seemed to assume that the notary public was fully apprised of the fraud that was being perpetrated upon the married woman....