Ward v. Weaver

• Citation: 34 S.W.2d 1093
• Decision Date: 04 February 1931
• Docket Number: No. 1384-5558.,1384-5558.
• Parties: WARD v. WEAVER.
• Court: Supreme Court of Texas

34 S.W.2d 1093

WARD v. WEAVER.

No. 1384-5558.

Commission of Appeals of Texas, Section A.

February 4, 1931.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Mrs. Mary Weaver against Mrs. Francelene I. Ward, wherein defendant filed a cross-action. The original suit was subsequently dismissed without prejudice to the plea of not guilty and to the answer in the cross-action. To review the judgment of the Court of Civil Appeals , affirming judgment for plaintiff, defendant brings error.

Affirmed.

R. H. Ward and Gordon O. McGehee, both of Houston, for plaintiff in error.

Harry Holmes and R. Wayne Lawler, both of Houston, for defendant in error.

HARVEY, P. J.

This suit was originally brought by Mrs. Mary Weaver, a widow, against Mrs. Francelene Ida Ward, the plaintiff in error, to recover the title to some lots in Houston, including a certain lot on Jackson street in said city. Mrs. Ward in her answer pleaded not guilty, and set up a cross-action in trespass to try title against Mrs. Weaver for the title and possession of the lots. Mrs. Weaver, in answer to this cross-action, disclaimed title except as to the Jackson street lot. As to this lot she pleaded not guilty, and further set up the homestead character of said lot, extending back beyond December 29, 1917. She further pleaded, under oath, as follows:

"Further answering said cross-action, cross-defendant says that the purported deed of conveyance recorded in Vol. 700, page 489 of the deed records of Harris County, Texas, purporting to be executed by Mary Weaver and husband, William Weaver, as grantors, to Francelene Ida Ward as grantee, purporting to bear date December 29, 1917, was not signed or executed by this cross-defendant, or any person authorized by her to execute it for her; that said purported deed was made without cross-defendant's knowledge or consent, and that she has never, at any time, ratified or confirmed same."

Other pleadings of the respective parties are immaterial to a decision. Mrs. Weaver, before trial, entered a nonsuit as to her suit originally brought against Mrs. Ward. At the trial, a deed purporting to have been executed by Mrs. Weaver and husband, William Weaver, of date December 29, 1917, purporting to convey the Jackson street lot to Mrs. Ward, was relied on by the latter as showing title in her. This deed was filed for record May 23, 1927, and appears of record in volume 700, page 489, of the deed records of Harris county. The certificate of acknowledgment bears date even with the deed. The certificate is in regular statutory form, and purports the acknowledgment of the deed by Mrs. Weaver and her husband. The validity of the deed, as against Mrs. Weaver, was a matter of prime importance in the trial of the case. The evidence showed that the property was occupied by the Weavers as a home on December 29, 1917; and was so occupied until Mr. Weaver died, and continued thereafter to be occupied by Mrs. Weaver as her home. The notary, J. W. Oliver, who made the certificate of acknowledgment, was a witness in the case. He testified that, at the instance of Mrs. Ward, he went to the home of the Weavers and took the acknowledgment of Mrs. Weaver to the deed in the regular way. Mrs. Weaver, while on the stand as a witness, identified her signature to the deed, but she further testified that the notary had never been in her home, and that she had never, at any time, acknowledged the deed before him.

Without objection from anybody, the trial court submitted to the jury the following special issue:

"Special Issue No. 1. Do you find that the cross-defendant, Mrs. Mary Weaver, appeared before J. W. Oliver, a notary public, for the purpose of having him take her privy acknowledgment to the deed from herself and her husband to Francelene Ida Ward, which deed has been introduced in evidence before you?"...