Susan F. Thompson et al. v. John Johnson et al., 92 Tex. 358

DENMAN, Associate Justice. This .is an ordinary action of trespass to try title brought by Susan F. Thompson, joined by her husband, against John Johnson and.others claiming under him, to recover the lands in controversy. Defendants pleaded not guilty, improvements in good faith, and other matters not necessary to notice. The statement of facts shows (1) that the land is separate property of Susan F.

Thompson, it having been allotted to her in the partition of her ancestor's estate; (2) that plaintiffs, for the sole purpose of showing common source, introduced in evidence a copy from the records of a deed purporting to have been executed by her and her husband conveying the land to Johnson; and (3) that defendants made proof of their respective improvements. The pleadings of each of the defendants show that he claimed the land under said deed and there is nothing, other than above stated, in the statement of facts tending to show that Susan F. Thompson has ever parted with whatever title she may have had.

Upon this state of the evidence, the trial court on October 22, 1897, rendered judgment for Susan F. Thompson for the land and for defendants for their improvements. In November, 1897, at the request of defendants, the court filed conclusions of fact at some length, which, as far as they bear upon the questions we deem it proper to notice, are in substance: (1) that on January 17, 1870, the land in controversy was the separate property of Susan F.

Thompson; (2) on said date, she, joined by her husband, executed to defendant Johnson, for a valuable consideration, a certain deed (here the trial court sets out the deed, including the acknowledgment, in full); (3) that Johnson, by subsequent deeds, conveyed parts of the land to the other defendants; (4) that said deed from Susan F.

Thompson and husband to Johnson was offered by plaintiffs for the purpose of showing common source and “was received in evidence for that purpose and no other.” Upon these facts, the court concluded as a matter of law: (1) that said deed, on account of defective acknowledgment, is void, and that therefore plaintiffs should recover; (2) that if the acknowledgment is in law good, defendants should have judgment. From the bill of exceptions contained in the record, it appears that on the trial defendants offered in evidence as a muniment of title said deed from Susan F.

Thompson and husband to Johnson, and that the court upon objection of plaintiffs to the acknowledgment excluded the same, and that defendants duly excepted to such ruling. From said judgment Johnson and others appealed to the Court of Civil Appeals, assigning as error that the trial court erred in holding said deed void and in refusing to render judgment that plaintiff take nothing upon said finding of fact [2], Susan F.

Thompson and husband filed cross assignments of error to the effect that the trial court erred in finding its said conclusion of fact [2], in that there was no evidence admitted upon which to base same, and also erred in its said conclusion of law [2], in that defendants could not have a judgment even if the acknowledgment was good, because the deed was not admitted in evidence. The Court of Civil Appeals held that the trial court erred (1) in holding the acknowledgment fatally defective, and (2) in not rendering judgment that plaintiff take nothing, and thereupon proceeded to render such judgment.

From this judgment Susan F. Thompson and husband have brought the cause to this court upon writ ■of error, complaining that the Court of Civil Appeals erred in holding that the certificate of acknowledgment was sufficient and that therefore the trial court erred in excluding the deed. Upon this proposition, we are of opinion that the Court of Civil Appeals were correct, and as they have written fully upon the point, we deem it unnecessary to say more. It therefore results that we are of opinion that that court correctly reversed the judgment of the trial court. Susan F.

Thompson and husband also complain that the Court of Civil Appeals erred in not holding in any event that the trial court erred in its said finding of fact [3] and in its said conclusion of law [3]. We are of opinion that this point is well taken.

Though the deed was correctly acknowledged and should have been admitted in evidence,, nevertheless the statement of facts and the bill of exceptions above stated show affirmatively that it was excluded, and such exclusion left the trial court without evidence before it upon which to base its said finding of fact [3], and therefore its said conclusion of law [3], based thereon, was also unauthorized. When the deed was wrongfully excluded by the trial court upon objection made by Susan F.

Thompson and husband, they were not called upon and it would have been improper for them to have offered evidence to destroy the same, as they might have done had it been admitted; such, for instance, as that it was a forgery. The exclusion of the deed put it entirely out of the case in so far as the trial court was concerned, and left to defendants Johnson and others only one right in reference thereto — that is, to assign such exclusion as error in law upon which the judgment should be reversed and a new trial awarded.

We must therefore set aside the said finding of fact [3] made by the trial court and impliedly approved by the Court of Civil Appeals, for the reason that it was error in law to base same upon excluded testimony. Said conclusion of law [3] must of course fall with it. Since the judgment of the Court of Civil Appeals, rendering judgment that Susan F. Thompson and husband take nothing, is based upon said conclusion of fact [3] which we have set aside, it follows that it must be set aside and the cause remanded for a new trial.

If on such trial the issue of forgery be raised, the testimony of Enloe as to what occurred at Thompson’s house at the time he claims the acknowledgment was taken will be admissible. Reversed and remanded. Beown, Associate Justice, did' not sit in this case.