Colonial & United States Mortgage Co. v. Thetford

STEPHENS, Associate JusTiCE. The statement in the brief of appellants of the nature and result of the suit contains nothing superfluous and leaves nothing to be added, and we therefore adopt it. The first complaint is that the evidence was not sufficient to warrant the verdict finding the deed from J. B. Thetford and wife to Brook Beall to be a forgery as to the wife. This deed purported to have been duly executed by Thetford and wife in December, 1888, and was placed on record in January, 1889. Mrs. Thetford, testifying by deposition, [153] positively denied the execution of the deed so far as she was concerned; but the officer before whom the acknowledgment appears to have been taken, and who had no interest in the matter, testified by deposition quite as positively to the contrary, stating from memory the circumstances attending the execution of the deed, and showing a full compliance with the statute providing for the execution of deeds by married women. Numerous cases have been cited from other States, and from the Supreme Court of the United States, to sustain the proposition that the testimony of the wife alone denying the execution of her deed is not sufficient to overcome the certificate of the officer showing its execution in due form. As said in the Cyclopoedia of Law and Procedure, volume 1, page 635, “It is very generally held that the testimony of the grantor unsupported and uncorroborated is not sufficient to overcome a certificate regular on its face, especially where the certificate is supported by' the testimony of the officer who took the acknowledgment, or by other competent evidence,” in support of which numerous cases are there cited. A distinction, however, has been taken between the effect of a certificate of acknowledgment made where the wife appears before the officer and one made where she does not. Wheelock v. Cavitt, 91 Texas, 679. The rule above invoked would seem, therefore, to be inapplicable to this ease, as the wife denied appearing before the officer. Not finding it necessary to pass on the sufficiency of the evidence, we proceed to consider the second assignment of error, reading: “The court erred in rendering judgment upon the verdict, the said verdict being insufficient to support the judgment in this: The fact that Sarah A. Thetford did not join in the execution of the deed does not render the same void as to the plaintiffs, nor as to these defendants, it appearing that the land was community property; that both husband and wife had died, and that no constituent member of the family remained.” The following, authorities cited by appellants seem to sustain this assignment: Marler v. Handy, 88 Texas, 421; Irion v. Mills, 41 Texas, 310; Shields v. Aultman, 30 Texas Civ. App., 345. The appellees have not favored us with a brief, but they doubtless rely upon the opinion of our Supreme Court in Stallings v. Hullum, 89 Texas, 431, reversing the decision of this court, 33 Southwestern Reporter, 1033. In that case, however, the person complaining of the judgment, the wife, still retained homestead rights, which it was held, both by this court and the Supreme Court, could not be affected by the deed" of the husband alone; but the judgment appealed from was reversed because it was held by the Supreme Court to interfere with the homestead rights of the wife, contrary to the view of this court that it did not. No such question is involved in this appeal, for, as indicated in the assignment, no vestige of homestead right survived. The object of the homestead exemption ceased upon the death of Mrs. Thetford, and with it the exemption itself. The case, therefore, seems analogous to Marler v. Handy and [154] that line of cases, in which the homestead had ceased to be, rather than to Stallings v. Hullum, in which it still remained. As to how the case would stand if the deed to Brook Beall was one made merely for the purpose, in connection with the deed of trust subsequently executed, of obtaining a loan by J. D. Thetford on the homestead, of which there was some evidence, we need not consider, since no relief was sought upon that ground, the allegations of the petition being confined to the issue of forgery. Upon the ground stated in the second assignment of error, and on the undisputed facts, the judgment is reversed and here rendered for appellants, giving to the mortgage company a foreclosure of its lien to secure the sums adjudged against Brook Beall, as to whom the judgment remains undisturbed. Reversed and rendered.