Humble Oil Refg. Co. v. Clara May Downey

Mr. Justice Critz delivered the opinion of the Court. *174 ON motion for rehearing. On original hearing we delivered an opinion in this case affirming the judgment of the Court of Civil Appeals and district court. The case is now before us on separate motions for rehearing, filed by Humble Oil & Refining Company and by Mrs. Keller and husband. In passing on such motions we hereby withdraw our original opinion, and in lieu thereof substitute the opinion which follows. The original opinion will not be published. OPINION. On and prior to February 8, 1929, Mrs. Grace C. Ruby, a widow, and her daughter, Mrs. Clara May Downey, wife of Dorsey Downey, were joint owners of 76.52 acres of land in the Choate League in Harris County, Texas. On the date just mentioned Mrs. Ruby, and Mrs. Downey, joined by her husband, Dorsey Downey, executed to Mrs. Grace Keller, niece of Mrs. Ruby, and cousin of Mrs. Downey, a deed of gift to the above land. This deed shows its nature as a gift deed upon its face, and appears to be duly acknowledged by all parties thereto before “J. J. Shoemaker, Notary Public, Montgomery County, Maryland.” It was filed for record on May 3, 1929, and is duly recorded in the deed records of Harris County, Texas. On April 28, 1934, Mrs. Grace Keller, joined by her husband, Herman Keller, executed and delivered to Humble Oil & Refining Company, hereinafter called Humble, an “Oil & Gas Mining Lease,” covering this land. This lease contract was executed to and accepted by Humble while the above-described deed to Mrs. Keller stood duly recorded as above stated. As we understand this record, as between Mrs. Keller and Humble, this lease is in full force and effect. After the execution and delivery of both of the above-described instruments. Mrs. Downey, who has been divorced from her husband above named, filed this suit in the District Court of Harris County, Texas, against Mrs. Keller and her husband, and Humble, to recover an undivided one-half interest in this land, on the alleged ground that she did not personally appear before the notary who certified to her separate acknowledgement to the deed to Mrs. Keller. Mrs. Keller and Humble answered, setting up various defenses,, among which was included estoppel by fraud upon the part of Mrs. Downey. We will regard all pleadings as sufficient to put in issue the questions of law we shall decide. *175 This case was submitted to a jury on special issues in the district court, and, based on the answers to such issues, judgment was entered for Mrs. Downey and against Mrs. Keller and husband and Humble. This judgment was, in all things, affirmed by the Beaumont Court of Civil Appeals. 161 S. W. (2d) 803. Mrs. Keller and her husband, and Humble have prosecuted separate writs of error to this Court. In response to special issues duly submitted, the jury found: That Mrs. Downey never appeared before the officer who certified to her separate acknowledgement to the Keller deed; that at the time Mrs. Downey signed the deed she did not know that she owned an an undivided interest in the land covered thereby; that at such time Mrs. Downey knew that the purpose of such deed was to convey this land to Mrs. Keller; that at the time Mrs. Downey signed this deed there was in existence an understanding, agreement, or custom between her and the notary who certified to her separate acknowledgment, whereby such notary, without Mrs. Downey’s personal appearance before him, would place upon any instrument bearing her genuine signature, and providing for a certificate of acknowledgment, his duly executed certificate showing due acknowledgment thereof before him; that such notary placed his certificate as to the acknowledgment of Mrs. Downey on this deed in accordance with, or as the result of, such understanding, agreement, or custom; that at the time Mrs. Downey signed this deed she understood and expected that it would be handed or sent to the notary who certified to her separate acknowledgment for the purpose of having him place thereon, in pursuance of his above-found understanding, agreement, or custom, his certificate of due acknowledgment; that when Mrs. Downey signed this deed she understood and expected that it would be delivered to Mrs. Keller with the genuine signatures of grantors and apparently valid certificates of acknowledgment thereon; that at the time Mrs. Downey signed this deed she knew, or under all the facts and circumstances in evidence ought to have known, that some other person, firm, or corporation would purchase from Mrs. Keller the land covered by this deed, or some part thereof or some interest therein, in reliance upon the apparent validity of such deed; that at the time Mrs. Downey signed the deed to Mrs. Keller she ought to have known, in the exercise of ordinary care and diligence on her part, that she had an interest in the land covered thereby; that Mrs. Downey, in the exercise of ordinary good faith on her part, ought not to have made known her claim or interest in this land prior to the time Humble purchased its lease thereon from Mrs. Keller on- April 28, 1934. *176 As already shown, Mrs. Downey seeks in this suit to recover from Mrs. Keller an undivided one-half interest in this land. Also, she seeks to have such one-half interest; when recovered, freed from the Humble lease. Article 6605 of our 1925 Civil Statutes provides that, “No acknowledgment of a married woman to any conveyance or other instrument purporting' to be executed by her shall be taken, unless she has had the same shown to her, and then and there fully explained by the officer taking the acknowledgment on an examination privly and apart from her husband; nor shall he certify to the same unless she thereupon acknowledges to such officer that the same is her act and deed, and that she has willingly signed the same, and that she wishes not to retract it.” Article 6608 prescribes the form of a married woman’s acknowledgment which meets the requirements of Article 6605. Article 1299 provides that, “The husband and wife shall join in the conveyance of real estate, the separate property of the wife; and no such conveyance shall take effect until the same shall have been acknowledged by her privily and apart from her husband before some officer authorized by law to' take acknowledgments to deeds for the purpose of being recorded, and certified to in the mode pointed out in Articles 66-05 and 6608.” (Emphasis ours.) Under all the decisions of this Court on the question, the separate acknowledgment of a married woman in the manner and form required by Article 6605 and 6608 of our Civil Statutes of 1925 is absolutely essential to the validity of any instrument conveying her separate lands in this State. Noncompliance with such statutes renders the instrument an absolute nullity. Johnson v. Bryan, 62 Tex. 623; Veeder v. Gilmer, 103 Tex. 458, 129 S. W. 595; 23 Tex. Jur., p. 277; 1 Tex. Jur., p. 519, and authorities there cited. The only instances in which a married woman can be prevented from asserting the invalidity of a deed not separately acknowledged as required by our statutes is where she has been guilty of such active fraud in regard to the transaction as would estop her from pleading the invalidity of her ■acknowledgment or the certificate thereto. Johnson v. Bryan, supra. It is the law of this State that when a married woman signs with her husband a deed conveying her separate real property situated in this State, and, in person, appears before a proper officer for the purpose of acknowledging the same, and such officer fails to do his duty in taking the acknowledgment, but *177 makes the certificate in full compliance with the law as contained in Articles 6605 and 6608, supra, such certificate is conclusive against the married woman and in favor of an innocent purchaser who pays value, without notice that the officer failed to perform his duty as required by law. Wheelock v. Cavitt, 91 Texas 679, 45 S. W. 796; Poole v. Chase, 46 Texas 207; Kocourek v. Marak, 54 Texas 201; Waltee v. Weaver, 57 Texas 569; Gulf Production Co. v. Continental Oil Co., 139 Texas 183, 164 S. W. (2d) 488. On the other hand, we think it is also the law of this State that where it is shown that though a married woman signs with her husband a deed conveying her separate real property, but does not in person appear before a proper officer for the purpose of acknowledging it, and no acknowledgment is in fact made, the certificatae of such officer, however formal it may be, is not binding upon the married woman, even in favor of an innocent purchaser for value and without notice. In such instances the married woman has the same right to impeach the certificate of her appearance before the officer falsely certifying to that fact that a man would have to assert that a deed purporting to be signed by him was a forgery. Breitling v. Chester, 88 Texas 586, 589, 32 S. W. 527; Wheelock v. Cavitt, supra; Daniel v. Mason, 90 Texas 240, 38 S. W. 161; Articles 6605 and 6608, supra; 23 Tex. Jur., p. 268, sec. 232, Id., p. 277, sec. 241, Id., pp. 320, 321, sec. 280; 1 Tex. Jur., p. 517 et seq., secs. 114, 115, 116. In Breitling v. Chester, supra, opinion by Judge Gaines, it is held: “It is clear,, that a casual admission in the presence of a notary or other duly authorized officer by a person who has signed a conveyance, that he had executed the deed, does not empower the officer to certify that he has acknowledged it. In order to call into exercise the authority of the officer to make the certificate, the grantor must appear before him for the purpose of acknowledging the instrument, and his admission that he had executed it must be made with a view to give it authenticity.” In Wheelock v. Cavitt, supra, opinion by Judge Brown, it is held: “But where it is shown that the married woman has not appeared before the officer for the purpose of acknowledging the execution of the deed, and no acknowledgment has been in fact made, she having in no way invoked the exercise of the officer’s authority in that respect, the certificate, however formal, is not *178 binding upon her, even in favor of an innocent purchaser and for value without notice. 1 Devlin on Deeds, sec. 532a; Breitling v. Chester, 88 Texas, 589; Pickins v. Knisely, 29 W. Va., 1, 6 Am. St. R., 636; Cheney v. Nathan, 110 Ala., 254, 55 Am. St. R., 26; Grider v. Am. F. Mortgage Co., 99 Ala., 281; 42 Am. St. R., 58; LeMesnager v. Hamilton, 101 Cal., 532, 40 Am. St. R., 81; Nichener v. Cavender, 38 Pa. St. R., 334; 80 Am. Dec., 486; Borland v. Walrath, 33 Iowa, 130; Donahue v. Mills, 41 Ark., 421; Williamson v. Carskadden, 36 Ohio St., 664; Meyer v. Gossett, 38 Ark., 377; Allen v. Lenoir, 53 Miss., 321; Johnston v. Wallace, ib., 331; Mays v. Hedges, 79 Ind., 288. :1c :|c tfr :1c :{: ^c "We do not think it necessary to enter into argument to support the conclusions that we have expressed in 'our answer to the foregoing questions, for the reason that they are supported by all authority that we have been able to .find except the courts of the States of Illinois and Kentucky; the decisions in the latter State are controlled by statute. We will, however, quote from Pickins v. Knisely, 29 W. Va., page 1, the reasons given by that court in support of its decisions: ‘For reasons of public policy, and to protect innocent purchasers, it has been uniformly held that when a married woman appears before a justice for the purpose of acknowledging a deed, and does in some manner attempt to do what the law requires to be done; the certificate is conclusive of the facts therein stated as regards innocent purchasers. This is a necessary rule of law, and not "a harsh one to her; because, if the justice has not asked her all the questions required, or has omitted anything which the statute requires, as fully .explaining the deed to her, she may notify the purchaser of that fact before the deed is delivered to him, and thus prevented it from operating to pass her title to the property. But where she has not appeared before the officer she has no opportunity to save her property, any more than the man has whose name is forged to a negotiable note. In the case of the note no one would hesitate to say that it would be void in the hands of an innocent holder for value. Why, then; should it be said that the married woman should be held for the act of the justice which was as much without authority or warrant in law as the forgery of the man’s name to the note? * * * A married woman’s signature to a deed amounts to nothing in any one’s hands, as to her, until she has acknowledged the deed before a proper officer after privy examination, and he has certified that all the requirements of the statute have been complied with, and the deed has been recorded. She ought to.have the *179 same right to impeach the certificate of her appearance before the officer making it, when in fact she did not appear before him, that a man has to prove a deed professing to be signed by him to be a forgery. The rights of property are too sacred to allow them to be swept away without the knowledge of the owner, when he has made no contract of sale with the pretended purchaser. No consideration of public policy can justify the robbing of a married woman of her separate estate’.” In 23 Tex. Jur., p. 268, supra, the law is stated as follows: “Before the wife is to any extent bound by a false certificate of the notary as to her privy acknowledgment, his powers to act must have been invoked by her, that is, she must have appeared before him for the purpose of acknowledgment; otherwise his certificate, whatever its form, is no more than a forgery.” In 23 Tex. Jur., p. 277, supra, the law is stated as follows: “One cannot be an innocent purchaser from the wife, if the title or instrument through which he claims is void. Thus if the wife’s deed is not in compliance with the statute of conveyances, the purchaser’s ignorance of this, or his paying value, is of no effect; and the registration of such defective instrúment adds nothing to its effectiveness.” In 23 Tex. Jur., pp. 320, 321, the law is stated as follows: “Of course, the wife’s deed obtained by fraud or duress, or recitals therein, will not estop. Nor will an estoppel follow in the absence of reliance by the purchaser upon the instrument, or where the wife has never appeared before the notary for the purpose of acknowledgment, the instrument in the last case being no more than a forgery.” In 1 Tex. Jur., p. 517 et seq., the law is stated as follows: “Sec. 114. Statutory Requirement. — The requirement of separate acknowledgments of married women was first introduced into the Texas laws in 1841; prior to that time privy examination and acknowledgment of a married woman was not essential to the validity of a conveyance of her separate property. Under the present statute, and the predecessors thereof, certain instruments executed by married women are required to be acknowledged on examination separate and apart from the husband, and the courts uniformly hold that the statutory requirement must be strictly complied with. Indeed it has been said that to recognize a married woman’s deed or other instrument that is *180 not acknowledged as required by statute, would in effect be to repeal the law. “Sec. 115. As Affecting Validity of Instrument. Generally.— Although, generally speaking, a different rule prevails with respect to the acknowledgments of other persons, yet it is settled by a long line of decisions that when the separate acknowledgement of a married woman is required, such an acknowledgement is essential to the validity of the instrument executed by her. In such a case the acknowledgment is not only an act or ceremony that imparts varity to the woman’s deed, but it -is also a vital and essential part of the instrument; in other words, it is the acknowledgment, and not the signature, which gives vitality to the writing. “Sec. 116. Effect of Unacknowledged Instrument. — When an acknowledgment is required an unacknowledged instrument of a married woman is, as to such woman, not voidable merely, but absolutely void; the instrument, although signed, attested and delivered, ‘is as though it had never been written, is mere waste paper, is not her act and deed.’ A fortiori the writing is wholly ineffectual to divest her of title, and property attempted to be conveyed by it may be recovered, it has been held, without refunding the consideration .received. Although, under certain circumstances, a married woman may be estopped to assail an unacknowledged instrument, yet is unquestioned that .an acknowledgment may not be supplied by parol evidence, and, as we shall see later, the statutory provisions relating to proof for record have no application to married woman’s deeds. However, a conveyance executed by a husband and wife but not acknowledged by the latter is, generally speaking, sufficient to pass whatever title the husband may have had in the property.” There is no theory by which Mrs. Keller can be said to hold any right, title, or' interest in this land, either legal or equitable, as against Mrs. Downey. Under the above authorities the deed from Mrs. Downey to Mrs. Keller was a pure gift deed. Mrs. Keller was in no sense a purchaser, innocent or otherwise. The deed to her was an utter nullity, because Mrs. Downey did not personally appear before the notary who certified to her separate acknowledgment. No estoppel is shown, because, if for no other reason, the rules of equity, which under certain circumstances estop married women from asserting the invalidity of their deeds or other instruments required to be acknowledged, only apply so as to protect bona fide purchasers for value and without notice. From what we have said it is evident that Mrs. *181 Keller obtained no right, title, or interest in this land, either legal or equitable, by reason of Mrs. Downey’s deed to her. As we have already shown, it is the settled law of this State that the separate acknowledgment of a married woman is absolutely essential to the validity of her deed purporting to convey her separate land in this State. A deed not separately acknowledged conveys nothing. It is the acknowledgment, not the signature, that constitutes the execution of a married woman’s deed. Of course, as already shown, where a married woman personally appears before a proper officer for the purpose of separately acknowledging her deed, and such officer fails to do his duty in taking the same,' but makes a certificate in full compliance with the law, such certificate is conclusive in favor, of an innocent purchaser who pays value, without notice of the fact that the officer failed to do his duty as required by law. On the other hand, as we have already shown, when a married woman signs with her husband a deed purporting to convey her separate land in this State, but does not in person appear before a proper officer for the purpose of separately acknowledging the same, and no acknowledgment is in fact made, the certificate of such officer and the deed itself are not binding upon the married woman, “even in favor of an innocent purchaser for .value without notice.” Wheelock v. Cavitt, supra, and other authorities above cited and quoted from. Under the record in the instant case, Mrs. Keller took no title to this land as against Mrs. Downey. Humble therefore has no title based on any actual title held by Mrs. Keller. Humble simply took a mineral lease, relying on the deed, or the record thereof, from Mrs. Downey to Mrs. Keller. Under the above-cited authorities, such deed was and is an utter nullity, and will not even protect an innocent purchaser for value who has purchased in reliance thereon. No estoppel is shown as regards Humble, because the only act Mrs. Downey committed which it relied and acted on was to permit her deed to "Mrs. Keller to be delivered to Mrs.. Keller, and to remain of record, without any effort to relieve against it. Reliance on such deed, or the record thereof, simply constituted Humble an innocent purchaser. Some may think this a harsh rule, but, be that matter as it may, it reflects the construction this Court has given the statutes under consideration for such a length of time, and of such uniformity, as to constitute a rule of property in this State. Any change in such rule must result, if at all, from legislative enactment. It can not be held that Mrs. Downey invoked the jurisdiction of the officer who certified to her separate acknowledgment *182 to her deed to Mrs. Keller. Mrs. Downey did not personally appear before such officer, and, under the authorities above cited and quoted from, both jurisdiction to take and jurisdiction to certify to a married woman’s separate acknowledgment can only be invoked by a personal appearance by the married woman before such officer. Under the record before us,'Humble holds no title or interest to or in this land which it can successfully assert against Mrs. Downey. It is merely an innocent purchaser for value in reliance on a deed to its grantor that does not protect it. We have carefully . read and considered both motions for rehearing above referred to, also we" have carefully reviewed and considered all briefs and arguments filed herein by all parties to this cause, and are still of the opinion that we entered the correct judgment on original submission of this cause. It is ordered that both motions for rehearing above mentioned be overruled. Because we have substituted this opinion in lieu of our original opinion in this cause, petitioners, if they desire, will be permitted to file second motions for rehearing. Opinion delivered October 25, 1944. Second motion for rehearing overruled December 6, 1944.