Williams v. Pouns

• Decision Date: 01 January 1877
• Citation: 48 Tex. 141
• Parties: GEORGE B. WILLIAMS AND WIFE v. M. E. POUNS.
• Court: Texas Supreme Court

48 Tex. 141

GEORGE B. WILLIAMS AND WIFE

v.M. E. POUNS.

Supreme Court of Texas.

1877.

APPEAL from Morris. Tried below before the Hon. B. F. Estis.

September 23, 1876, M. E. Pouns brought suit against George B. Williams and his wife Sarah, for two tracts of land, (one of 320 acres, and the other of 160 acres,) situated in the county of Morris. The petition set out, that plaintiff claimed the land under a sale made under a deed of trust, by one James R. Bridges, trustee, &c.; that the deed of trust bore date December 23, 1870, and was executed to secure two promissory notes due February 1, 1872, for borrowed money; that in July, 1875, the trustee had advertised the sale of the lands, under the trust, for the first Tuesday in August, but was enjoined, at suit of Williams and wife, from sale on July 28, 1875; that the injunction was dissolved in April, 1876, and the trustee, on July 6, next thereafter, sold said lands to plaintiff, at Dangerfield, the county seat of Morris county, where the land was situated.

The defendant, Mrs. Williams, pleaded the injunction as still in force, having perfected an appeal to the Supreme Court from the judgment dissolving the injunction; that the land was her separate property, and the homestead of the family; that the notes secured by the trust deed were barred by limitation at the date of the trust sale; that the deed of trust was executed for an antecedent indebtedness; that the trustee had not complied with the terms of the deed, as to place of sale, in making it; and, under oath, that Mrs. Williams had been imposed on in said trust deed, and had not signed and delivered the same, nor had she privily acknowledged the same, in the manner and form prescribed by law.

On the trial, the trust deed from Williams and wife, being an exhibit to the petition, was objected to when offered, not having been filed and three days' notice given, as under the statute. The objection was sustained, when the certificate of the notary, in the usual statutory form, of the privy examination of Mrs. Sarah Williams, was admitted as evidence of its execution by the wife. The deed required sale to be made at the court-house door, as under execution. The deed of the trustee was then read in evidence, conveying the lands to the plaintiff. It was further shown, that prior to the trust deed, the notes had been secured by lien on nine or ten bales of cotton, and that, at request of plaintiff Williams, the cotton had been released, and the trust deed on the lands in controversy substituted.

Defendants proved that at the date of the execution of the trust deed, the land was situated in Titus county, of which Mount Pleasant was county seat; that the trustee's sale had been made in Dangerfield, the county seat of Morris county, in which the lands were situated; that Morris county was organized in the spring of 1875.

The testimony as to the wife's privy acknowledgment was contradictory, she and the notary swearing--one contradicting the certificate of acknowledgment, the other supporting it. There was some testimony that the lands were the separate property of Mrs. Williams.

The beneficiaries of the trust deed were not connected in the evidence with any knowledge of the alleged imposition upon the wife in executing the trust deed.

The plaintiff, rebutting, read the proceedings in the injunction suit, showing the issuance of injunction in July, 1875, and its dissolution in April, 1876.

The court excluded evidence showing that the injunction suit had been appealed from, and was pending in the Supreme Court.

Judgment was rendered for the plaintiff, and the defendants appealed.

The errors are discussed in the opinion of the court.

W. J. McDonald, for appellants, cited 2 Phill. on Ev., 585; Morris v. Wadsworth, 17 Wend., 103;Ledbetter v. Burns, 42 Tex., 508;Griffin v. Wakelee, 42 Tex., 513;Duty v. Graham, 12 Tex., 437;Ross v. Mitchell, 28 Tex., 150.

Turner & Turner, for appellee.

I. We maintain, that it makes no difference what attacks are made by feme-coverts upon their deeds; the only way that they can be proven is by the certificate of privy acknowledgment, and that is always prima-facie true, and admissible upon its face. Any other rule would place the party who relies upon it to the necessity of proving the acknowledgment in a way unknown to the law, or of accepting the charges against the certificate as true upon ex-parte showing, which would be very unreasonable and unjust. (Fulton v. Bayne, 18 Tex., 50;Berry v. Donley, 26 Tex., 738; Paschal's Dig., art. 3710.)

II. The injunction was not revived by the appeal. (High on Injunctions, sec. 893, and authorities there cited; also, same, sec. 41; Tucker on Corp., 441; Kerr on Injunctions in Equity, 635, 636.)

III. The beneficiary of the trust deed had no knowledge of any fraud, and was not affected by it. (Hartley v. Frosh, 6 Tex., 208;Shelby v. Burtis, 18 Tex., 644; Daniel on Negotiable Notes, secs. 184, 780.)

IV. The injunction stopped limitation on the notes. (Ellis v. Batts, 26 Tex., 703; High on Injunctions, secs. 20, 852; Kerr on Injunctions in Equity, 638, 639.)

V. The sale was made in the proper county. (Alred v. Montague, 26 Tex., 732.)

VI. Both parties claimed the same title, and it was not necessary for plaintiff to go behind the trust deed. (Wilson v. Palmer, 18 Tex., 592.)

MOORE, ASSOCIATE JUSTICE.

The vital question to be decided in this case is,--Does an appeal from a final judgment dissolving the injunction and dismissing the bill, where the condition of the appeal bond is that appellant will prosecute the appeal with effect, and perform the judgment, sentence, or decree of the Superior Court in case the decision of said court shall be against the appellant, (Paschal's Dig., art. 1491,) keep the injunction in force during the pendency of the appeal?

It is not to be denied, that in England, and a majority, perhaps, of the States, it is well settled, that an appeal from the judgment dissolving the injunction will not have this effect. “An appeal,” says Mr. High, in his work on Injunctions, (sec. 893,) “from a decree dissolving an injunction does not have the effect of reviving and continuing the injunction itself, since the process of the court, when once discharged can...