70 S.W. 1007


ESTES
v.
TURNER.


Court of Civil Appeals of Texas.


November 12, 1902.

Page 1008

Appeal from district court, Rusk county; Richd. B. Levy, Judge.

Trespass to try title by J. H. Turner against Mary Estes and others. From a 
judgment for plaintiff, defendant Mary Estes appeals. Affirmed.

John R. Arnold, for appellant. S. J. Hendricks, J. H. Turner, and Gaines B. 
Turner, for appellee.

GILL, J.

This suit was brought by J. H. Turner against Mary Estes, the appellant, and 
her sons, Tom Estes and Henry Estes, and the form of the action was trespass 
to try title, with writ of sequestration. The sons disclaimed, and Mary Estes 
answered by general denial and plea of not guilty, set up title in herself, 
and pleaded over against the appellee in damages, both actual and exemplary, 
for wrongful levy of the writ of sequestration. In replication to her claim of 
title, the appellee pleaded "Not guilty," improvements in good faith, and 
limitation of three, five, and ten years. As bearing upon the claim for damages, 
appellee pleaded that his right to the possession and enjoyment of the premises
had been adjudicated in his favor in a suit of forcible entry and detainer 
begun by him against appellant, and prosecuted to a successful issue. In reply 
to this, appellant pleaded, among other things, coverture. On a trial by jury 
the case was submitted upon special issues, and upon the answers of the jury a 
general judgment was rendered in favor of the plaintiff, Turner.

The history of the title and claims of the respective parties may be briefly 
stated as follows: Mary Reed Ferguson, the wife of Joseph Ferguson, was the 
daughter of W. B. Reed, who originally owned the land in controversy. W. B. 
Reed conveyed this land (which is situated in Rusk county) to his son, John 
Reed; conveying at the same time to his daughter, Mary Reed Ferguson, an equal 
amount of land in Freestone county. John Reed and his sister Mary, for purposes
of mutual convenience, exchanged with each other the lands above mentioned, and
Mary became the owner in her own right of the land in controversy. Thereafter 
Mary Reed Ferguson undertook to convey to Alston Ferguson. Alston Ferguson died 
in 1864, and the record does not show that he left a will, or that 
administration was had upon his estate. His widow, who survived him, and whose 
name, also, was Mary, on May 14, 1883, conveyed the land to Wesley Acrey for a 
valuable consideration, and this deed was placed of record in Rusk county May 
29, 1883. On October 30, 1884, Acrey and wife sold and conveyed the land to J. 
H. Turner, and their deed to him was recorded in January, 1888. When this deed 
was delivered to Turner, they also delivered to him a certified copy of the 
deed from Mary Reed Ferguson to Alston Ferguson. These transfers constitute 
the paper title of Turner. Mary, the widow of Alston, as the record stands, 
did not own more than an undivided half interest; it being, presumably, 
community property of her and her deceased husband. Mary Estes claims under a 
deed executed and alleged to have been delivered to her by Alston Ferguson, her 
father, in October, 1861, reciting as consideration love and affection, and the 
fact that the land conveyed was a part of her interest in his estate. This deed 
was proven up by a witness, and filed for record February 18, 1898. Turner 
defends against this deed upon these grounds: First, he contends it was never 
delivered, and therefore never took effect; second, he (Turner) bought for 
value, without notice of Mary Estes' claim under this deed, or in any other way,
and therefore took title notwithstanding her deed; third, the deed from Mary 
Reed Ferguson and her husband, Joseph, was never properly acknowledged by the 
wife, and, being her separate property, conveyed no title to the vendee and as, 
under this contention, neither he nor appellant have title, and he had 
possession, his possession entitled him to judgment as against appellant, who
was a naked trespasser.

In response to his first contention, the jury found the deed had not been 
delivered, and this answer might ordinarily end the controversy; but it is 
assailed as unsupported by the evidence, and also for supposed errors committed 
by the court in the admission of testimony and the submission of the issue. We 
regard the issue as properly submitted, and are of opinion the complaints 
against the admission of testimony are without merit. We refuse, with some 
reluctance, to disturb the verdict upon this issue on the facts, but decline to
enter into a detailed discussion of the assignments assailing the action of the
court upon the trial, or refusing to set aside the answer of the jury upon the 
point, for the reason that the answer does not remove the difficulties which 
stand in the way of an affirmance. In the absence of this deed, Mary Estes is 
nevertheless an heir of Alston Ferguson, and the length of time which elapsed 
between the death of Alston and the conveyance from his widow, Mary, to Acrey, 
perhaps precludes the presumption that the conveyance was made for the discharge
of community debts. Mary Estes might thus have recovered for herself as heir 
and as co-tenant of the other heirs.

Turner's second contention is of no avail, because he bought from the surviving
widow, who had no apparent power to convey, and he himself claims under Alston
Ferguson, with whose title he has failed to connect

Page 1009

himself. We remark in this connection that the pleas of limitation are not 
available to appellee as against Mary Estes, because of the coverture of Mary 
Estes, which extended from 1860 until within less than three years of the 
institution of this suit. The date of her marriage and the death of her husband 
are not found by the jury, but the undisputed proof establishes the dates as 
above stated.

The third contention of appellee must be determined upon the validity of the 
certificate of acknowledgment of the deed from Mary Reed Ferguson to Alston. 
The certificate is as follows: "The State of Texas, County of Hamilton—Before 
me, R. A. Fuller, clerk of the county court of Hamilton county, Texas, 
personally appeared before me Joseph Ferguson and his wife, Mary Ferguson, to 
me personally known, who acknowledged that they had signed the within 
instrument of writing or deed for all purposes and considerations therein 
contained and set forth; and his wife, Mary Ferguson, being asked separately, 
says that she signed the within instrument of writing with her own full will,
without being forced or compelled by her husband, and that she signed the 
within instrument for all purposes and considerations therein contained." 
(Official signature and seal.) An inspection of this certificate discloses 
three defects: First, it does not recite a separate and privy examination of 
the wife by the officer; second, it does not recite that the instrument was 
explained to her; and, third, she is not made to declare that she did not wish 
to retract it. We regard it as well settled that these defects are fatal to the 
validity of the acknowledgment. Ruleman v. Pritchett, 56 Tex. 482; Belcher v. 
Weaver, 46 Tex. 294, 26 Am. Rep. 267; Berry v. Donley, 26 Tex. 737; Pasch. Dig. 
art. 1003. The deed is thus rendered a nullity, the land undertaken to be 
conveyed being the separate property of the wife. No title passed thereby to 
Alston Ferguson, and none could pass to his daughter, Mary Estes, either by 
virtue of his deed to her or by inheritance.

In this view of the case, no other judgment could have been rendered than was
rendered by the trial court. The appellee should have recovered—First, because
his possession had been disturbed by Mary Estes and her sons, who entered as 
naked trespassers; second, because the long, uninterrupted, adverse possession 
which had been maintained by appellee, though not good against Mary Estes, had 
she shown title in herself, had long since completed the bar of 10 years as 
against the title which remained in Mary Reed Ferguson, and for this purpose 
limitation was properly permitted to be shown, and was correctly submitted to 
the jury. This conclusion renders it unnecessary to notice any of the other 
points made by the briefs. We have deemed it unnecessary to set out the many 
answers of the jury to the special issues submitted. Such parts of the verdict 
as are pertinent support the conclusions we have reached.

We have been able to find no reversible error in the judgment, and it is 
therefore in all things affirmed. Affirmed.