Mynatt v. Agee

LEVY, J. The defendant in error brought the action in trespass to try title to and for partition of two tracts of land — one of 2 acres of the Samuel Erwin survey, and the other of 33⅜ acres of the Mary Johnston survey. The defendants, who are the plaintiffs in error, answered by plea of denial and *936 by special plea of forgery of deed from R. 6. Mynatt to Laura Mynatt of 33½ acres in suit. Tlie findings of the jury on special issues are: (1) That R. G. Mynatt did make and deliver a deed to the 33 ⅛ acres of land to Laura Mynatt; and (2) that Laura Agee (née My-natt) did not have adverse possession of the 33⅛ acres in suit for ten years. These findings of fact have support in the evidence, and are here adopted. [1] R. G. Mynatt died in June, 1900, which was two years after the death of his wife. Laura Mynatt, wife of the defendant in error, and the plaintiffs in error are the surviving children of R. 6. Mynatt and wife. Laura Mynatt married G. M. Agee in June, 1901. R. G. Mynatt and wife owned as community property 100 acres of the Johnston survey. R. G. Mynatt conveyed to M. H. Mynatt and to Mrs. F. A. Yinyard each 33 ⅛ acres of the land, and there was offered in evidence a deed, purporting to be signed and acknowledged by R. G. Mynatt, conveying to his other daughter, Laura Mynatt, 33 ⅛ acres of the land. This deed is the one attacked as being forged, and which the jury found was not a forged deed. This jury finding is challenged by the assignments as being without evidence to support it. It is believed that the verdict has evidence sufficient to support it. As circumstances going to show genuineness of the deed, it was proven that R. G. My-natt had J. B. Stephens, a surveyor, to survey the 100-acre tract into three parts, of 33⅜ acres each. J. B. Stephens was a notary public qualified and acting, and wrote the deed in controversy and took the acknowledgment. The acknowledgment recited: , “On this day personally appeared R. G. My-natt, known to me to be the person whose name is subscribed to the foregoing' instrument.” And it was shown that R. G. Mynatt and the notary public were intimate friends, and had been for a long time. It was also shown that the notary public was a man of good standing in the community, and of high repute for honesty and integrity. On the same day the deed in suit was made, a like deed was drawn up by the same notary public and signed and acknowledged before him by R. G. Mynatt, conveying 33 ⅛ acres of land to another daughter, Sirs. F. A. Yinyard. It was shown that R. G. Mynatt also conveyed 33 ⅛ acres of the land to his son, M. H. My-natt. Laura B. Mynatt, it was shown, collected the rents and paid most of the taxes on the 33⅜ acres of land for about 15 years. It was shown that she made declaration to her husband “that her father gave it [thel 33⅜ acres] to her before his death.” The deed in suit was, it was proven, found in the trunk of Laura B. Mynatt after her death, and had long been in her possession. This evidence was sufficient, we think, to make an issue for the jury, and the assignments are overruled. There was no error, it is concluded, in admitting the evidence complained of, and the assignments in this respect are therefore overruled. [2] Complaint of the charges of the court that were given and here complained of, upon the ground that they constituted “fundamental error,” may not be so considered under article 1971, Vernon’s Sajdes’ Statutes. The judgment is affirmed. Footnotes [1] <S=oFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes