John Hurst v. C. A. and S. E. Finley, 22 Tex. Civ. App. 605

OPIHIOX On BEHEAEinG. FISHER, Chief Justice. —The cause of action and the result reached by the trial court is fully stated in the original opinion delivered by this court. We find as facts, that there were false and fraudulent representations made by the appellant, in effect as stated by the plaintiffs in their petition, concerning the quantity and the quality of the land; and that the plaintiffs were induced by such representations to trade the premises in controvers3' for the land then owned by appellant, and that the plaintiffs believed the representations to be true and had no knowledge to the contrary.

The premises in controversy at the time that the trade was made between the plaintiffs and the appellant, as stated in their petition, was the homestead of the plaintiffs. We also further find that the plaintiffs signed and executed the deed to the appellant conveying the property in controversy, and were induced to do so by reason of the fraudulent representations made by the appellant, as set out in plaintiffs’ petition; and that the certificate of acknowledgment to that instrument, so far as it affects appellee, Mrs.

Finley, is defective, in that the certificate fails to show that she was known or made known to the officer who took her acknowledgment, or that she executed the deed for the purposes and consideration therein stated. Since the first disposition of the case, our attention has been called to a qualification appended to the bill of exceptions, admitting the deed executed by the appellees to appellant in evidence. The court, it seems, admitted the deed in evidence, so far as it affected the husband C. A. Finley, but as shown by the appended qualification, it was not admitted as against Mrs. S. E. Fiffiey .

Notwithstanding this ruling, rhe court admitted testimony of Mrs. Finley to the effect that she did not willingly sign the instrument and that it was not explained to her by the officer. In fact, that he had not performed his duty in taking her acknowledgment. The court having excluded the deed as to her, we fail to perceive any ground upon which her testimony, as above stated, was admitted. But, however, in view of the entire record, we think we erred in reversing the judgment, as shown in the first opinion, on the ground that the court admitted, over the objection of appellant, the evidence of Mrs.

Finley impeaching the certificate of acknowledgment. As stated in the former opinion, the court in its judgment does not state the grounds upon which it based the decree canceling the deed executed by the appellees and extending the relief that they prayed for, but if there is any ground upon which the judgment may be sustained, it is our duty to affirm it. The property being homestead at the time that the Finleys executed the conveyance, Mrs. Finley’s acknowledgment under the terms of the law was essential in order to the execution of a legal conveyance.

After reconsidering our previous ruling as to the certificate of the officer, we think that we Avere incorrect in holding that it Avas a good certificate of acknowledgment as to Mrs. Finley. It omits to state that she was knoAvn to the officer, or made knoAvn, and that she executed it for the purposes and consideration therein stated. These questions have been passed upon in the following cases: Frost v. Cattle Co., 81 Texas, 510; McKie v. Anderson, 78 Texas, 207; Hayden v. Moffatt, 74 Texas, 648.

And in the last case cited, in construing our present provision of the ¡Revised Statutes on the subject of acknoAvledgment of married women, it is held that the certificate upon its face must show that she Avas known to the officer or was made knoAvn, and that she executed the instrument for the purposes and consideration therein stated, or use equivalent expressions.

In first passing upon the certificate, we were under the impression that equivalent expressions were shown upon the face of the certificate; hut upon a re-examination of the certificate, in connection with the authorities, we have reached a different conclusion, and now hold that the certificate, for the reasons stated, is defective as to Mrs. Finley. Consequently, this being true, we can disregard her evidence impeaching the officer’s certificate, for it was immaterial, in view of the fact that there was no legal certificate to impeach.

The relief extended to the plaintiffs is justified on either or both of the grounds alleged in the plaintiffs’ petition. The property at the time being the homestead, and the wife never having properly joined in the conveyance, it can he recovered by the plaintiffs. The plaintiffs being induced to sell by reason of the false and fraudulent representations concerning the quantity and the quality of the land which was taken in exchange for it, cancellation and recovery could be had upon this ground. There was no error in the ruling of the court upon the demurrers as complained of.

The plaintiffs were not required to deraign title from the sovereignty of the soil, and there was no merit in the second assignment, which complains of the judgment in this respect. The court did not err in refusing to permit the notary public who took the acknowledgment of Mrs. Finley to testify to facts tending to show that he had fully complied with the law in taking her acknowledgment. Looney v. Adamson, 48 Texas, 621.

The appellant did not in his answer ask that the certificate of acknowledgment be corrected or amended, as is permitted by the statute, which authorizes the institution of an action for the purpose of correcting or proving up the acknowledgment of an instrument permitted or required by law to be acknowledged. Motion for rehearing granted, and the former judgment is set aside and the judgment below is affirmed. Affirmed.