text:
    AYERS et al. v. SNOWBALL et al.

    (No. 7025.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 23, 1915.
    Rehearing Denied Jan. 20, 1916.)
    1.Deeds <@=>114 — Construction—Land Conveyed.
    The owner of a 3,000-acre survey of land attempted to convey, by a deed which was ineffective because defectively acknowledged, 320 acres lying north of a previously conveyed 1,000-acre tract located near the center of the survey and running entirely through same from east to west. After 2,600 acres had either been conveyed or been contracted to be conveyed, the owner conveyed 400 acres more or less south of such 1,000-acre tract by a deed reciting that it covered the unsold portion of the survey. Thereafter she conveyed, pursuant to a prior contract with a person who located her husband on the land, 1,000 acres by a deed reciting that the land was “not heretofore sold; it being the intention of this deed and the desire of the parties” to convey the one-third interest owned by the locator for his services, and previously deeded by him to the grantee. The locator’s deed clearly covered the 1,000 acres in the southwest corner of the survey. Held, that the deed to the 400-acre tract and the deed from the same grantor to the 1000-acre tract did not convey the 320-acre tract covered by the invalid deed.
    [Ed. Note. — For other cases, see Deeds, Gent. Dig. §§ 316-322, 326-329, 388; Dec. Dig. <@=> 114.]
    2. Trespass to Tey Title <@=341 — Outstanding Title — Sufficiency oe Evidence.
    Evidence in an action of trespass to try title to a tract of land including 320 acres, out of a 3,000-acre survey, covered by an invalid deed, held not to show any outstanding title as against plaintiffs to the 320 acres by reason of a location contract entitling the locator to one-third of the entire survey.
    [Ed. Note. — For other eases, see Trespass to Try Title, Cent. Dig. §§ 62, 63; Dec. Dig. <@=> 41.)
    3. Trespass to Tey Title <@=344 — Submission oe Issues — Evidence — Oubative Deed.
    Where, in1 an action of trespass to try title to 320 acres of land attempted to be conveyed by a defectively acknowledged deed, all the evidence went to show that the grantee in such deed claimed and held under it, and that in conveying the land he described it with reference to such deed as the one under which he held, the court properly refused to submit to the jury whether a curative deed was given.
    [Ed. Note. — For other cases, see Trespass to Try Title, Gent. Dig. § 66; Dec. Dig. <@=344.]
    4. Costs <@=>32 — Taxation — Unsuccessful Pasties.
    Where, in an action of trespass to try title, the judgment was against defendant and for a part only of the plaintiffs, it was error to tax to defendants the costs incurred by the unsuccessful plaintiffs.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 108-132; Dec. Dig. <@=>32.]
    5. Appeal and Eeeoe <@=>1171 — Harmless Error — Taxation oe Costs.
    The erroneous taxation to the unsuccessful defendant of costs incurred by certain plaintiffs, who were also unsuccessful, did not require a reversal, where the costs so taxed were small in amount.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4546-4554; Dec. Dig. <@=> 1171.Í
    Appeal from District Court, Harris County ; J. W. Woods, Special Judge.
    Action by James Snowball and others against J. W. Ayers and others. Judgment for certain plaintiffs, and defendants appeal.
    Affirmed.
    Sam, Bradley & Fogle', Ross & Wood, Stew-arts, and Meyer Wagner, all of Houston, for appellants. John A. Kirlicks, John M. C'ohb, and John B. Warren, all of Houston, for ap-pellees.

      Application for writ of error pending in Supreme Courts

   LANE, J.

The 3,000 acres of land, situated in Harris county, Tex., of which the 600 acres sued for by plaintiffs, James Snowball and others, is a part, was patented to J. L. Stanley, and became and was the community property 'of said Stanley and his wife, Mary A. L. Stanley. In 1838 Stanley gaye a title bond for 1,000 acres of said land, described by metes and bounds, to J. W. Oates. The Oates tract was so surveyed that its north line extended from the west to the east line of said 3,000-acre tract, a distance of 18,933 varas, leaving the 600 acres, sued for in this cause, north of its north line. On the 1st day of October, 1840, at 10 o’clock a. m., two deeds were recorded in the deed records of Harris county, Tex. — one from J. L. Stanley to A. Wynn, dated October 1, 1840, reciting a consideration of $150, conveying 17 labors of land, which included the 3,000 acres above mentioned, and, for an additional consideration of $100, 100 head of cattle and their increase were conveyed. The other deed was from A. Wynn to Mary A. L. Stanley, wife of J. E. Stanley, conveying the same land and cattle for a recited consideration of . $100 for the land and $100 for the cattle. Both deeds were acknowledged before the same person, and witnessed by the same witnesses on the same date. Thereafter Stanley conveyed the 1,000 acres mentioned in the first part' hereof to Oates.

After the death of J. L. Stanley in 1843, his widow, Mary A. L. Stanley, married O. B. Monroe. After such marriage she, joined by her husband, sold to E. B. Wise 320 acres out' of the 3,000-acre tract lying just north ¡of the Oates 1,000 acres; but the deed by which they sought to pass the title to same, of date January 12, 1855, was never properly acknowledged, and by reason of this defect did not pass title to said Wise. In February, 1855, Mrs. Monroe, joined by her husband, s'old two tracts of 100 and 180 acres, respectively, out of the north portion of said 3,000-acre tract. The 320, 100, and 180 acre tracts mentioned composed the 600 acres of land sued for and joins the Oates tract on the north, and embraces all of said 3,000-acre tract which lies north 'of said Oates tract. On November 2, 1858, Mrs. Monroe and husband, for a recited consideration of $274, conveyed land to William Anders described as follows:

“The remaining balance of a tract of land known as the J. H. S. Stanley tract, of Green Bayou, containing 3,00o1 acres of land. The tract herein conveyed comprises all of the said Stanley tract which has not heretofore been soli by the said parties of the first part, being the remaining balance of land not heretofore sold of the tract of land conveyed by Archibald Wynn to Mary A. E. Stanley, now Monroe, as will appear from Harris County Records of Deeds, Book F, p. 483, be it 400 acres more or less.’’

On the 2d day of April, 1861, Sterling N. Dobie, by deed, conveyed to J. J. Cain certain land, a part of said 3,000-acre Stanley tract. Said, deed in describing the land conveyed contains the following:

“All that certain tract or parcel of land consisting of 1,000 acres, more or less, being one-third of 17 labors granted to J. E. Stanley and patented 22d day of October, 1845, situated and described as follows: In Harris county, on the west side of Green Bayou. * * * ”

Then follows further description showing the land conveyed to be one-third of the 3,-000-aere Stanley tract.

On the 19th day of July, 1862, Mrs. Mc-Nease, formerly Mrs. Mary A. L. Stanley, and husband, W. R. McNease, for a recited consideration conveyed to John J. Cain and George W. Hagy certain land described as follows:

“1,000 acres, more or less, of land out of the John E. Stanley 17 labors on Green Bayou in said Harris county, being the entire balance of said 17 labors not heretofore sold to Mary A. L., the said 17 labors having been conveyed to her by A. Wynn, by deed dated 2d Oct., 1840, and recorded on Harris County Records of Deeds, Book F, p. 483, and the intention of this deed and desire of the parties is to convey to said Gain & Hagy all the right, title and interest that ioe_ or either of its have jm, and to said la/nd, the said 1,000 acres being the same conveyed to said Gain by S. W. Dobie by deed dated April 2, 1862, and recorded on Harris Co. Records of Deeds, Book T, p. 142, the same being owned by said Dobie for his one-third interest in said labors for locating the same.”

J. L. Stanley died in 1843, and left surviving him his widow, Mary A. L. Stanley (who married O. B. Monroe, and after the death of Monroe married W. R. McNease) and his two children, William and Martha. There was no administration upon the estate of said J. L. Stanley. Mrs. Stanley, later Monroe and McNease, respectively, died in 1885, and by will devised such interest as she had in any of the said 3,000 acres to Mary A. L. Snowball. Mary A. E. Snowball died intestate, and left surviving her three children, to wit, Lillian E., Daisy D., and James B. Snowball. All the plaintiffs, except the Fer-gusons, who are hereinafter called the Snowballs, are admittedly entitled to the estate of Mary A. E. Stanley-Monroe-McNease, and Martha Stanley, her daughter, to all interest they had in the land involved in this suit at the time of their deaths. The plaintiffs Ferguson claim one-half of any estate J. L. Stanley had in said land, under a deed executed and delivered to him on the 23d day of April, 1879, by William Stanley, the son of J. L. Stanley, deceased.

The Snowballs and Ferguson brought this suit against appellants in the ordinary form of trespass to try title to the 600 acres out of the said 3,000-acre tract (Stanley tract), which lies north of the said Oates 1,000-acre tract, on the theory that the said 3,000-acre tract was the community property of J. L. Stanley and wife, Mary A. L., at the time of the death of said J. L. Stanley, and one-fourth thereof was .inherited by William Stanley, and passed by his deed to Ferguson, and that one-fourth thereof passed by inheritance to the daughter, Martha, and from her to the Snowballs, and that one-half thereof passed to the Snowballs by the will of Mrs. Mary A. L. Stanley-Monroe-McNease; tlie Snowballs owning three-fourths and. the Fergusons one-fourth thereof.

Appellant J. O. League answered, alleging that the title to the said 3,000 acres of land originally patented to J. L. Stanley passed by the two deeds of J. L. Stanley to Wynn, and Wynn to Mrs. Mary A. L. Stanley, respectively, from the community estate of J. L. Stanley and wife to Mary A. L. Stanley as her separate property, and that by the said deed of Mrs. Stanley-Monroe, of date January 12, 1855, she conveyed 320 acres of the 600 acres sued for to E. R. Wise; that by the deed of the same party of date February 6, 1855, she conveyed ISO acres thereof to B. R. Wise; and that by the deed of same party of date February 4, 1856, she conveyed to John Kennedy 100 acres thereof, making a total of 600 acres so conveyed, being the 600 acres sued for by plaintiffs. He also alleged in said answer that he believes that said Mary A L. Stanley-Monroe executed and delivered to E. R. Wise another deed, by which she again conveyed to him the 320-acre tract and the 180-acre tract above mentioned; that said deed is lost, and the same was executed and delivered prior to February 4, 1856, more than 30 years ago, and that he and those to whom he sold land under E. R. Wise and John Kennedy; that they have held open and notorious and continuous possession under said deeds for many years, paying all taxes due thereon, by the acquiescence of Mary A. L. Stanley-Monroe, as he is informed and believes; and that such facts and circumstances, in connection with the lapse of time and their claim of said property and recitals in said deeds, show the execution of a deed as alleged. He further says that, if it be held that title to said lands in controversy in this suit had not been conveyed by said conveyances, then the same were embraced in and conveyed by the deeds of Mary A. L. Stanley-Monroe-McNease to Anders and Cain & Hagy, hereinbefore mentioned. He further says that if the deed by which Mrs. Monroe and husband undertook to convey the said 320-acre tract to E. R. Wise did not in fact so convey said land, then he says that 1,000 acres of the Stanley 3,000 acres had been sold to Oates, and 1,000 acres thereof had been sold to S. N. Dobie for locating the same, and that the 600 acres sued for had been sold or attempted to be sold, making 2,600 acres sold and attempted to be sold, and that, if said 320-acre tract was not in fact conveyed by said deed of Mrs. Monroe and husband to E. R. Wise, the same was embraced in the description of the deed to William Anders, and was conveyed thereby, and if it was not conveyed by said last-mentioned deed that it was conveyed by the deed of Mrs. McNease and husband to Gain & Hagy; that he is the warrantor of the title under whjch all the defendants claim, and that said defendants and those whose estate defendants' have, or the persons under whom defendants claim title, have had and held peaceable, continuous, adverse possession of the land sued for by plaintiffs under such conditions and for such length of time as would give them title to the same under the three, five, and ten year statute of limitations.

All the remaining defendants, who are claiming under defendant League, interpose their plea of the three, five, and ten year statute of limitations in bar of plaintiffs’ right to recover.

By supplemental petition all the Snowballs pleaded their disabilities in bar of defendants’ pleas of limitations.

The trial court in substance found that the two deeds, one from J. L. Stanley to A. Wynn, and the other from A. Wynn to Mary A. L. Stanley, hereinbefore mentioned, in effect conveyed the 17 labors of land, patented to J. L. Stanley, to said Mrs. Stanley as her separate property, and that at the tipie of his death, in 1843, J. L. Stanley owned no interest in said land, and consequently neither of his children, William or Martha, who survived him, inherited any interest in said land from their father, J. L. Stanley; that the deed of Mrs. Monroe, formerly Mary A. L. Stanley, to E. R. Wise, of date January 12, 1855, by which she attempted to convey the 320 acres lying just north of the Oates 1,000-acre tract, was void, and did not in fact convey said land to Wise, because said deed was never acknowledged by Mrs. Monroe, and that the legal title to said 320 acres remained in the said Mrs. Monroe and passed by her will to her devisees, Lillian Snowball (now Brown), Daisy Snowball, who married McKinney, James Snowball, Jr., and James B. Snowball; and that as the devisees, and heirs of the devisees, of the former Mrs. Stanley, the plaintiffs, except the Fergusons, hold the legal title to the said 320 acres, except such as defendants may recover under their plea of limitation.

The court also found that the plaintiffs Ferguson had no title or interest in the 3,000-acre Stanley tract by virtue of the deed from William Stanley to J. T. Ferguson of date April 23, 1879, and therefore had no interest in the land sued for. He also found that said 320 acres was not conveyed by Mrs. Stanley-Monroe by either the deed to Anders or to Gain & Hagy, and that neither the grantees named in these two last-mentioned deeds, nor any of their vendees, heirs, or legal representatives, have ever claimed to own any portion of the 600 acres of land in controversy in this suit; that the evidence does not show any outstanding record title against the Snowballs to any portion of said 320-acre tract.

The court also found that J. L. Stanley agreed and contracted to convey to S. N. Dobie a one-third undivided interest of the said 17 labors of land, known as the Stanley 3,000-acre tract, for his services in locating tlie same; tliat the deed of Mrs. Stanley-McNease to this one-third interest locates it in the southwest corner of said S,000-acre tract, and that the deed from Mrs. Monroe and husband to Anders describes and intended to describe only the 400-acre tract, more or less, that had not theretofore been sold by the said grantors, or J. L. Stanley; and that in making said deed they recognized the right of S. N. Dobie to the south 1,000 acres of the J. D. Stanley survey. The court, having found the foregoing from the undisputed facts, refused to submit any of such matters to the jury.

Upon the facts found by the court and jury, and upon the verdict of the jury on the limitation issue, judgment was rendered for the plaintiffs Snowball for all the said 320-acre tract in controversy, except such portion thereof as had been held by the defendants under such conditions and length of time as gave them title under the statute of limitations. Judgment was also rendered against the plaintiffs Ferguson that they take nothing by their suit, and for defendants for all the land sued for except that portion of the 320-acre tract adjudged to the Snowballs. AU costs were adjudged against defendants. All the defendants, except John Kooi, have appealed.

In appellants’ brief the issues presented on this appeal are stated as follows:

“(1) Do the deeds to William Anders and to Cain & Hagy show an outstanding title as against plaintiffs?
“(2) Is an outstanding title against plaintiffs shown by the evidence of Dobie’s locative contract for one-third of the survey?
“(3) Should the court have submitted the issue of presumption of deed?
“(4) Did the court err in not awarding judgment for costs in favor of defendants against plaintiffs Ferguson, who faffed to recover anything in the suit?”

We will adopt the issues thus stated and consider them in the order stated.

Prior to the execution of the deeds by Mrs. Stanley-Monroe-McNease, hereinafter called Mrs. Stanley, to William Anders and Cain & Hagy, Stanley had conveyed 1,000 acres of the Stanley 3,000-acre survey to James W. Oates, located near the center of said survey and running entirely through the same from east to west, leaving 600 acres of said survey north of its north line. In January, 1855, thereafter, Mrs. Stanley sold 320 acres lying just north of the Oates tract to E. R. Wise, and attempted to convey the same to said Wise by her deed; but, as said deed was defectively acknowledged, it did not in fact pass the title to said Wise, but such title remained in Sirs. Stanley. In February, 1855, Mrs. Stanley conveyed a tract of 180 acres lying just north of said 320-acre tract to E. R. Wise; and in February, 1856, she conveyed to J. W. McKinney a tract of 100 acres lying just north of said 180-acre tract, which was bounded on the north by the north line of said Stanley 3,000-acre tract. The three tracts last named compose the 600 acres of land sued for in this action, and this is all the land in said Stanley survey lying north of the Oates 1,000-acre tract.

The trial court has found that the evidence shows that S. N. Dobie located the said Stanley survey under Stanley’s certificate and for such services Stanley gave Dobie a one-third interest in the land so located. In the bond for title executed by J. L. Stanley to Oates, prior to his death, which occurred in 1843, Stanley recited that the certificate had been “cleared out of the office of S. N. Dobie.” From the foregoing statement it will ba seen that prior to the date of either of .the deeds of Mrs. Stanley to Anders or to Cain & Hagy, hereinafter more fully described, she and her husband had sold 2,600 acres out of the 3,000-acre Stanley survey. On November 5, 1858, Mrs. Stanley, who had then married O. B. Monroe, conveyed to William An-ders the remaining balance or the unsold portion of the said Stanley 3,000-acre survey, be it 400 acres more or less. The words in this deed:

“The tract herein conveyed comprises all of the Stanley tract which has not heretofore been sold by the parties of the first part, being the remaining balance of land not heretofore sold of the tract of land conveyed by Archibald Wynn-to Mary A. L. Stanley”

—clearly exclude from such conveyance the 320 acres sold by Mrs. Stanley to E. R. Wise, which was not legally conveyed. It is not contiguous to the 400 acres so conveyed, but is situated about a mile therefrom. On the 19th day of July, 1862, Mrs. Stanley by deed conveyed to J. J. Cain and George Hagy 1,000 acres of land, described as being 1,000 acres, more or less, out of the J. D. Stanley 17-labor survey, not heretofore sold, it being the intention of this deed and desire of the parties to convey to said Cain & Hagy all the right, title and interest that the vendors have in and to said land; the said 1,000 acres being the same conveyed to said Cain by S. N-. Dobie by deed dated April 2, 1862, recorded in Deed Records of Harris County, Book Y, p. 142, the same being owned by said Dobie for his one-third interest in said 17 labors for locating the same.

It seems to us that the contention that either of the vendees in the two last mentioned deeds acquired title to the 320 acres of land in question by virtue of said deeds is untenable. No one can in good faith contend, and we think no one does contend, that by either of said deeds Mrs. Stanley intended to convey said 320 acres, or that either of the vendees named intended to purchase or acquire title to said land. Neither Anders, nor Cain & Hagy, nor any one claiming under them, have ever contended or claimed that the 320 acres were covered by their deeds. When we look to the language used in the deeds from Mrs. Stanley to Anders and to Cain & Hagy, we think it clearly ex-eludes the 320 acres in question from the land conveyed hy said deeds, and therefore we are not called upon to adopt the narrow construction placed upon such language by appellants.

We answer the first question presented by appellants as an issue in the negative.

Having hereinbefore set out all the facts shown, we also find that no outstanding title to the said 320-acre tract was shown by the evidence of Dobie’s location contract for one-third of said Stanley survey.

There was no evidence which would have justified the court in submitting to the jury the issue of presumption of a second deed from Mrs. Stanley-Monroe to E. R. Wise to the 320-acre tract after the execution and delivery of the deed of date January 12,1855, which was defectively acknowledged. All the facts go to show that Wise was claiming and holding under the deed last mentioned. Some time after the date of said deed Wise conveyed said 320 acres to John Kennedy, and in describing the land reference is made to said defective deed as the one under which he held. The evidence as a whole drives us irresistibly to the conclusion that Wise and those claiming the 320-acre tract in question under him were holding under said defective deed and none other.

We think the court erred in not taxing such portion of the costs as was incurred by the Fergusons to appellants; but as this cost must be so small in amount as would bring it under the rule of “de minimis non curat lex,” it does not present cause for reversal of the judgment of the trial court.

We find no such error committed in the trial of this case as should cause a reversal of the judgment therein rendered, and therefore said judgment is affirmed.

Affirmed.
      <£=s>Por other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    EMORY et al. v. BAILEY et al.
    (No. 6984.)

    (Court of Civil Appeals of Texas. Galveston.
    Nov. 3, 1915.
    Rehearing Denied Nov. 24, 1915.)
    1. Railroads &wkey;5l7 — Powers—President— Conveyances — Authorization.
    The purported deed of a railroad company, chartered by the act approved February 2, 1856 (4 Gammel Laws of Texas, p. 347), providing that to render a conveyance of the corporation valid it should be signed by the president and countersigned by the treasurer or some other officer duly authorized by the directors under the seal of the company, and in pursuance of a vote of its directors, signed by its president and secretary without proof of precedent authority conferred by the directors, or of any holding out or former course of dealing in that respect, or of ratification, was inadmissible to show that the title had passed.
    LEd. Note. — For other cases, see Railroads, Cent. Dig. §§ 36-38; Dee. Dig. i&wkey;>17.]
    2. Evidence @=372 — Ancient Deeds — Power to Execute.
    Where such deed was dated March 7, 1862, and was filed for record March 24, 1862, and neither the grantee or his heirs ever asserted any claim to the land from its date to the institution of their suit to' try title more than 50 years later, and the patent to the land issued to another than the grantee, the power under which it purported to have been executed would not be presumed, so as to make it admissible as an ancient instrument.
    [Ed. Note.' — For other cases, see Evidence, Cent. Dig. §§ 1613-1627; Dec. Dig. &wkey;372.]
    3. Pleading <@=304r — Deeds—Record—Denial of Execution — Statute.
    Rev. St. 1911, art. 3700, providing that after record for 10 years in the proper record a deed shall be admitted in evidence in any suit without the necessity of proving its execution if no adverse claim to the one evidenced thereby shall have been asserted during that time, does not permit the introduction of a deed without proof of its execution merely on showing its record for 10 years, as against an affidavit of the opposite party stating his belief that such deed was forged.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 908, 909; Dec. Dig. <&wkey;>304.]
    4. Trespass to Try Title &wkey;>39 — Evidence.
    In trespass to try title, where the court properly excluded a certified copy of the deed under which plaintiffs claimed and without which they would fail in the suit, their testimony to prove their heirship under the grantee and their other evidence was properly excluded as being immaterial.
    [Ed. Note.' — For other cases, see Trespass to Try Title, Cent. Dig. § 54; Dec. Dig. @=39.]
    Appeal from District Court, Harris County; Wm. Masterson, Judge.
    Trespass to try title by Mrs. Mary H. Emory and. others against W. H. Bailey and others. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    L. C. Kemp, of Houston, for appellants. S. H. Brashear, of Houston, for appellees.

      Application for writ of error pending in Supreme Court.

   McMEANS, J.

Appellants, plaintiffs in the court below, brought this suit against appel-lees, defendants, in the ordinary form of trespass to try title for the recovery of a tract of land, described as section 11, patented by the state of Texas to the Washington County Railroad Company, situated in Montgomery county. After the testimony was all in the court instructed the jury selected to try the case to return a verdict in favor of the defendants against the plaintiffs, which was accordingly done, and thereupon a judgment was rendered that plaintiffs take nothing by their suit, and that the defendants go hence with their costs. From this judgment, the plaintiffs have appealed.

The Washington County Railroad Company was the common source of title. Plaintiffs claimed as heirs of G. R. Healy. Upon the trial they offered in evidence a certified copy of the record of a deed from the Washington County Railroad Company to G. R. Healy, to the introduction of which the defendants made 14 objections, all of which were sustained by the court, and the certified copy, as evidence, was rejected, to which the plaintiffs seasonably reserved their bill of exceptions. It was upon the rejection of this evidence, which left the plaintiffs without standing in court, that the instruction to return a verdict for the defendants was given. The certified copy referred to is as follows:

“Washington County Railroad Company to G. R. Healy.
“State of Texas, Washington County.
“Know all men by those presents that the Washington County Railroad Company, for and in consideration of the sum of two thousand five hundred and sixty dollars paid by G. R. Healy, the receipt of which is hereby acknowledged, have this day bargained, sold .and conveyed and by these presents do bargain, sell and convey to the said G. R. Healy the following described land certificate and the land upon which the same have been or may be located, to wit: Eight sections of six hundred and forty acres each, being a portion of the lands donated to said company by the state of Texas, situate in Montgomery county.
“To have and to hold the same and every part thereof unto the said G. R. Healy, his heirs and assigns forever. And the Washington County Railroad Company do hereby covenant and agree to warrant and forever defend the titles to said land unto the said G. R. Healy, his heirs and assigns, and the Washington County Railroad Company do hereby authorize and empower the said G. R. Healy to demand and receive from the General Land Office the patents for the said lands in the name of said G. R. Healy as as-signee of the Washington County Railroad Company, this 7th day of March eighteen hundred and sixty-two. J. W. McDade, Prest.
“A. G. Compton, Secty.
“Piled for record at 4 o’clock p. m. March 22, 1862. Recorded March 24, 1862.
“Appleton Gay, Clk. C. C. M. C.”

By an appropriate assignment of error and propositions thereunder appellants assail the action of the court in sustaining each of the objections to the introduction of the certified copy. If any one of the objections was valid, the copy was properly excluded. We will not, therefore, discuss all the objections, but confine our investigation to the fourth, fifth, and ninth, which read as follows:

“(4) No authorization from the Washington County Railroad Company or its directors or other governing board of authorities is shown in support of such purported deed, this being necessary even if it be conceded that McDade, who purported to sign the instrument, was tlie president of said company, and even though it be conceded that the corporate seal was attached, and the authority to execute such deed will not be presumed as a matter of law, not even from the seal being affixed if it be conceded that the seal was affixed. The affixing of the seal is one thing, and the proof of authority for the president.to execute is another and totally distinct and important thing.
“(5) There are no facts or circumstances in evidence allowing or justifying the presumption that McDade had authority from the Washington County Railroad Company to execute the paper, and the mere fact that he assumed to act 'will not justify the presumption, no matter how ancient the instrument, but there must be facts and circumstances shown authorizing such presumption ; also one presumption cannot be builded on another, and it cannot be presumed that the deed was properly recorded because of a presumption that the clerk did his duty, and thereupon another presumption builded that the paper was authorized by said company.”
“(9) The act of 1907 permitting the introduction of deeds where no adverse claim has been made for ten years after it is recorded does not relieve the grantee or person claiming under him from introducing a deed executed by a party having authority to execute it, and, in any event, the act above referred to would not supply lack of authority in McDade to execute the purported instrument.”

Appellants assert that, where the officers of. a corporation are the proper officers to execute a deed, and have executed a deed purporting to be the act of the corporation, the law presumes a precedent authorization regularly and rightfully made. To this the appellees assert the counter proposition that, in the absence of ratification, it is necessary to show that a deed purporting to have been made by the officers of' a corporation was authorized by the corporation.

The Washington County Railroad Company was incorporated by the act of the Legislature of Texas approved February 2, 1856. Gammel Laws of Texas, vol. 4, p. 347. There is nothing in this act that authorized the president of the company to make sale of, and execute deeds to, land without authority of the board of directors, but, on the contrary, it is provided by the act that to render a conveyance by the corporation valid it should be signed by the president and countersigned by the treasurer, or some other officer duly authorized by the directors, under the seal of the company, and in pursuance of a vote of the directors. Id. p. 349. Of course, a subsequent ratification by the directors of a sale and conveyance of land by the president and secretary without a prior authorization would have the same effect as if the sale had been made and the deed had been executed pursuant to authority by them and would be binding upon the corporation. On the trial there was absolutely no evidence introduced of a precedent authorization by the board of directors, nor was there any evidence whatever of ratification. It may be that a president of a corporation will be presumed to have had the power to carry on the business for which the corporation was chartered, and that no direct proof of authority conferred upon him by the directors in that regard would be required. But that is not this case. The corporation was chartered as a railroad company, and its business under the charter was the conducting of a railroad. The sale and conveyance of real estate cannot be said to be a part of the business for which a railroad company is chartered, and therefore, before the president of the company could sell and convey its lands, it was essential to the validity of the transaction that prior authorization by the board of directors or other governing body be had, or that after an authorized sale and conveyance by such officer, his acts be ratified by the board, or that he was held out by the corporation as having the apparent power to sell and convey, or by former course of dealing persons might be justified in dealing with him upon the belief that he had power, not only to execute the deed, but also to make a contract for the sale of land in the usual course of business, by which the corporation would be bound. In the absence of proof of precedent authority conferred upon the president or of ratification of the transaction after it occurred, or of holding out or former course of dealing in this regard, we are of the opinion that the copy offered was not admissible to show that the title had passed out of the railroad company and into Healy, unless the contention of the appellants hereinafter stated be sustained. Fitzhugh v. Land Co., 81 Tex. 306, 16 S. W. 1078; Franco-Texas Land Co. v. McCormick, 85 Tex. 421, 23 S. W. 123, 34 Am. St. Rep. 815; Tempel v. Dodge, 89 Tex. 69, 32 S. W. 514, 33 S. W. 222; Hurlbut v. Gainor, 45 Tex. Civ. App. 588, 103 S. W. 409.

Appellant further contends that, where the deed offered in evidence is admissible as an ancient instrument, the power under which it purports to have been executed will be presumed. The deed in question is dated March 7, 1862, and filed for record March 24, 1862. There is absolutely no proof that Healy or the plaintiffs claiming as his heirs, or any one for them, ever asserted any claim to the land from the date of the deed to the institution of this suit, which was more than 50 years. The patent was issued in 1877, not to Healy, but to the Washington County Railroad Company. These facts bring this case fairly under the rule stated by the late Chief Justice Gaines in Baldwin v. Goldfrank, 88 Tex. 249, on page 258, 31 S. W. 1064, on page 1066, wherein he says:

“The presumption of a grant or of a power from claim of ownership upon the one side and acquiescence upon the other rests rather upon the acquiescence of the latter than upon the claim of the former. Without proof of such unequivocal acts of ownership long continued and brought home to the adverse pai'ty, acquiescence in the claim cannot be established. The case presented is that of a deed which purports to have been executed by virtue of a power of attorney, and which, it is true, is 40 years old, but under which no claim appears to have been asserted for a quarter of a century. The presumption would seem to be not that the power did, in fact, exist, but rather that it did not exist, or that for some other reason not disclosed no title passed by the deed.”

But appellants further contend that the certified copy of the deed offered in evidence by them was admissible under the act of 1907, for the reason that no adverse claim in the first 10 years said deed was recorded was ever asserted.

We will not pause to determine whether the evidence offered by appellees was sufficient to show an adverse claim to that of appellants to the land during the first 10 years. The appellees seasonably filed an affidavit of forgery; and the statute referred to, which is brought forward in the Revised Statutes of 1911 as article 3700, does not permit the introduction of a deed without proof of its execution merely because it has actually been recorded for 10 years, when an affidavit has been seasonably filed by the opposite party stating that he believes such instrument of writing to be forged. It follows that it is our opinion that the court did not err in excluding the certified copy of the deed above referred to.

We are also of the opinion that after the court had properly excluded the certified copy from the evidence, without which the appellants must have inevitably failed in their suit, the testimony offered by them to prove their heirship under Healy, as well as other testimony offered by them and excluded on the objection of the appellees, and which is complained of by them in their various assignments of error, was properly excluded as being immaterial.

We think the judgment of the court below should be affirmed; and it has been so ordered.

Affirmed.
      <§r=>For other cases see same topic and KEY-NUMBEft in all K'ey-Numbered Digests and Indexes


author: CONLEY, C. J.

text:
    HOUSTON OIL CO. OF TEXAS v. GRIGGS.

    (No. 14.)
    (Court of Civil Appeals of Texas. Beaumont.
    Dec. 2, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Mabbiage <&wkey;>22—Common-Law Mabbiage —Proof oe.
    Where a man and woman, whose marriage was not prohibited, maintain the relationship of husband and wife, holding themselves out to the world as such, there is a valid common-law marriage.
    [Ed. Note.—For other cases, see Marriage, Cent. Dig. § 16; Dec. Dig. <&wkey;>22.]
    2. Statutes <&wkey;220— Consteuction—Legis-lative CONSTRUCTION.
    Contemporaneous and practical interpretation and construction of statutes by the Legislature should be deferred to by the courts.
    [Ed. Note.—For other cases, see Statutes, Cent. Dig. § 298; Dec. Dig. <&wkey;>220.]
    3. Mabbiage <&wkey;>l — Consteuction—-Duty oe ' Court.
    It is the policy of the law and judiciary to look upon the marital relation, whether statutory or common-law, with great liberality, in an endeavor to sustain the legality of such relationship.
    [Ed. Note.—For other cases, see Marriage, Cent. Dig. § 1; Dee. Dig. <&wkey;>l.]
    4. Mabbiage <&wkey;10—Relationship—Parties Entitled to Contract.
    Under Act Dec. 21, 1836 (Laws of Republic 1836-39, p. 192, § 35), prohibiting a marriage between a man and his son’s wife, a man could marry his son’s widow prior to the amendment of August 28, 1S58, declaring that no man shall marry his son’s widow; there being, prior to the amendment, no impediment, in view of legislative construction, either to a ceremonial or common-law marriage between such parties.
    [Ed. Note.—For other cases, see Marriage, Cent. Dig. § 28; Dec. Dig. &wkey;>10.]
    5. Husband and Wiee <&wkey;262 — Community Estates—Presumption.
    Where it appeared a grantee was a married woman at the time of the execution of the deed, there is a presumption, that a community estate would arise.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. §§ 913, 914; Dec. Dig. &wkey; 2G2.]
    6. VENDOR AND PURCHASER <&wkey;230 — DEEDS— N otioe — Recital.
    The recitals in a deed only charge a party with notice of such facts as the words or condition import.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 502-512; Dec. Dig. <@=»230.]
    7. Vendor and Purchaser <&wkey;229 — Bona Fide Purchaser — Notice.
    Notice sufficient to deprive a purchaser of the defense of bona fides must be of such a nature as to have reasonably excited the suspicions of a reasonably cautious man.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 477-494; Dec. Dig. <©¿>229.]
    8. Vendor and Purchaser <&wkey;229 — Bona Fide Purchaser's — Notice.
    What is notice, or constructive notice sufficient to deprive a purchaser of the defense of bona fides, depends upon the particular circumstances of the ease.
    [Ed. Note. — For other cases, see Vendor and Purchaser, Cent. Dig. §§ 477-494; Dec. Dig. &wkey;229.]
    9. Vendor and Purchaser <&wkey;227, 229 — Bona Fide Purchaser — Notice—“Mrs.”
    A deed to a woman, who conveyed the land to plaintiff, contained no recital showing that she was at that time married. Recitals were also absent in the deed from the woman to plaintiff prepared by her attorney in fact. The certificate of acknowledgment of the power of attorney recited that Mrs. E. O. G., known to be the person whose name was subscribed, personally appeared before the notary public. Held that, as the word “Mrs.” merely showed that the woman had at some time been married, it did not constitute either actual notice, which, embraces all those instances in which positive personal information is directly communicated,. or constructive notice, wherein the communication of the notice is conclusively presumed, that the woman, at the time she received the conveyance, was a married woman, and that the land was part of her community estate, in which defendants, her children, were entitled to share.
    [Ed. Note.' — For other cases, see Vendor and Purchaser, Gent. Dig. §§ 474, 477-494; Dec. Dig. &wkey;227, 229.
    For other definitions, see Words and Phrases, First and Second Series, Mrs.]
    Error from District Court, Newton County; A. E. Davis, Judge.
    Trespass to try title by the Houston Oil Company of Texas against R. H. Griggs and others. There was a judgment in favor of the named defendant, and plaintiff brings error.
    Reversed and rendered.
    H. O. Head, of Sherman, and Parker & Kennerly and H. O. Head, of Houston, for plaintiff in error. Forse & Hamilton, of Newton, for defendant in error.

      Application for writ of error pending in Supreme Court.

   CONLEY, C. J.

This was an action of trespass to try title, brought by the appellant, Houston Oil Company of Texas, against J. S. Griggs, Marion Griggs, and R. H. Griggs, for the recovery of 220 acres of land, a part of the Sampson Watson 320-acre survey, granted by the state of Texas to Sampson Watson on February 8, 1859. The petition is in regular form for suits of that nature. The case was tried by the court, without the intervention of a jury, and judgment was rendered for the appellant for only 137% acres, and in favor of the defendant R. IT. Griggs for 82% acres; the other two defendants in the original suit having disclaimed. The appellant excepted to the judgment of the court in not awarding it the full amount of the land sued for, to wit 220 acres, and perfected its appeal, and the suit is now properly before this court.

The trial court filed findings of fact and conclusions of law, which are as follows:

Findings of Fact.

In compliance with the request of the plaintiff, filed herein, for findings of facts and conclusions of law, the court makes and files the following:

(1) I find that on the 8th day of February, 1859, the state of Texas patented to Sampson Watson a survey of 320 acres of land, same being patent No. 999, volume 17, and said patent being issued by virtue of a pre-emption certificate issued to said Sampson Watson.

(2) I find that on October 15, 1859, Sampson Watson and wife conveyed said 320-acre tract of land to Elizabeth O. Griggs, of Newton counts', Texas, for the recited consideration, of $125 cash.

I find that on April 16, 1890, Elizabeth O. Griggs executed a power of attorney to O. E. Smith, of Newton county, Texas, authorizing said Smith to sell and convey 220 acres of said Sampson Watson survey, described in said power of attorney by metes and bounds, and being the same 220 acres of land in controversy in this suit, and being the west 220 acres of said 320-acre Sampson Watson survey, which power of attorney was witnessed by F. N. Griggs.

I find that the certificate of acknowledgment to said power of attorney describes said Elizabeth O. Griggs as Mrs. Elizabeth O. Griggs, and that said certificate was otherwise in form the certificate of acknowledgment provided by law to be used to attest the acknowledgment of a woman not under coverture, and that in the body of the deed the name of the grantor appeared simply Elizabeth O. Griggs.

I find that under said power of attorney the said 220 acres of the Sampson Watson survey, being the land in controversy herein, was conveyed by and through a regular chain of conveyances to the plaintiff,’ Houston Oil Company of Texas; said 220 acres ’being described by metes and bounds in all the deeds composing said chain of conveyances.

(3) I find that in the year 1857, and for a number of years prior thereto, there lived in Wardville, Walton county, Florida, a man by the name of Berry Griggs, Sr.; that some 15 to 18 years prior to 1857 said Berry Griggs, Sr., was legally married to a woman by the name of Polly Oottonhead, by whom he had several children, among which children were Win. Griggs, Mitchell Griggs, and Berry Griggs, Jr.; that said William Griggs grew to manhood in Florida, prior to 1857, and was married to a woman whose maiden name the record does not disclose, but whose name, after her marriage to said William Griggs, was Elizabeth O. Griggs; that said William Griggs died, and the wife of Berry Griggs, Sr., died; and that after their death said Berry Griggs, Sr., father of said William Griggs, and said Elizabeth O. Griggs, widow of William Griggs, lived and cohabited together and had children born to them in Florida.

I find that said Berry Griggs, Sr., and Elizabeth O. Griggs bore the relationship to each other of father-in-law and daughter-in-law, and that said Elizabeth O. Griggs and Berry Griggs, Sr., were never married by license and ceremony in said state of Florida

(4) I find that in the latter part of the year 1857, or the early part of the year 1858, said Berry Griggs, Sr., and Elizabeth O. Griggs fled from the state of Florida to escape prosecution for living and cohabiting together without having been married, and that they left Florida in the night and came to Texas, bringing with them two children of said Berry Griggs, Sr., by his first wife, viz. Berry Griggs, Jr., and Mitchell Griggs, and also bringing with them two children of said Berry Griggs, Si-., by Elizabeth O. Griggs, viz. Lee Griggs and Frank Griggs.

(5) I find that these parties reached Newton county, Texas, in the spring of the year 1858, and settled and made their home in said Newton county, Texas, and lived and resided on said Sampson Watson survey, after same was acquired by said Elizabeth O. Griggs.

(6) I find that after reaching the state of Texas said Berry Griggs, Sr., and_ Elizabeth O. Griggs continued to live and cohabit together as man and wife, and raised a family of children in Newton county, Texas, and that said Elizabeth O. Griggs was held out by said Berry Griggs, Sr., as his wife, and that there were bora to them seven children after they reached Newton county, Texas, making a total of nine children in all born to them.

(7) I find that the said Berry Griggs, Sr., and Elizabeth O. Griggs lived together, as hereinbe-fore stated, as man and wife, up until the year 1881, when said Berry Griggs, Sr., died, leaving surviving him two children by his first marriage with Polly Oottonhead, which children were Berry Griggs, Jr., and Mitchell Griggs, and eight children by Elizabeth O. Griggs; one of the children by Elizabeth O. Griggs having died prior to the death of said Berry Griggs, Sr.

(8) I find that Berry Griggs, Sr., and Elizabeth O. Griggs, because they could not marry in Florida, moved to Texas.

(9) I find that the defendants herein have adduced before me no testimony as to the law of the state of Florida, at the time Berry Griggs, Sr., and Elizabeth O. Griggs began to live and cohabit together, and during the time of their living together in said state of Florida, on the question of whether or not there could have been a valid common-law marriage in said state of Florida between said parties.

(10) I find that the defendants herein, and those through whom they claim, have not had peaceable, continuous, and adverse possession of the land in controversy herein for any sufficient length of time or in a sufficient manner to mature title in them under either the three, five, or ten year statutes of limitation of the state of Texas.

(11) I find that the defendant R. H. Griggs has acquired all the title to the land in controversy herein held by six of the eight children of said Berry Griggs, Sr., and Elizabeth O. Griggs, who survived said Berry Griggs, Sr.

I find that at her death, which occurred subsequent to the year 1890, the said Elizabeth O. Griggs died intestate as to the 100 acres of said Sampson Watson 320-acre survey remaining after her sale of 220 acres in controversy herein by her attorney in fact to Jas. E. Price, and that after her death the children of said Berry Griggs, Sr., by Elizabeth O. Griggs, appropriated said 100 acres to their own use and benefit, sold same, and received and used the proceeds thereof.

Conclusions of Law.

1. I conclude that the burden of proof herein was upon the defendants, holding the equitable title derived through inheritance of the community estate of their deceased father, Berry Griggs, Sr., to six-eighths of one-half of the land in controversy herein, to show that the plaintiff, Houston Oil Company of Texas, and those under whom it holds, were not innocent purchasers of the land in controversy herein as against said equitable title derived by inheritance of the community estate, and I conclude that said burden of proof has been met by defendants herein when it was shown that the certificate of acknowledgment to the power of attorney from Elizabeth O. Griggs to C. E. Smith describes said Elizabeth O. Griggs as Mrs. Elizabeth O. Griggs, and that this description of said Elizabeth O. Griggs was sufficient to put the predecessor in title of the plaintiff herein on notice that said Elizabeth O. Griggs had been or was at the time of the acknowledgment a married woman, which notice, if followed up by inquiry, would have resulted in the ascertainment of the fact that said Elizabeth O. Griggs had been the wife of Berry Griggs, Sr., and that she at that time had children as the fruit of her common-law marriage with the said Berry Griggs, Sr., which children were entitled to the community interest of said Berry Griggs, Sr., in the land in controversy herein, and that there is no other testimony in the record, except the certificate of acknowledgment hereinabove referred to, tending to put the plaintiff herein and its predecessors in title on notice as to the claim of the defendants herein, and those under whom he claims.

.,2. I conclude that the defendant herein has no title to the land in controversy under and by virtue of the three, five, or ten year statutes of limitation of the state of Texas.

3. I conclude that under the law of the state of Texas, as it existed when Berry Griggs, Sr., and Elizabeth O. Griggs reached the state of Texas, a marriage between said Berry Griggs, Sr., and Elizabeth O. Griggs was not prohibited by the laws of the state of Texas; the only prohibition in the law in force at that time, on said subject, being the act of December 31, 1836, prohibiting marriage between a man and his son’s loife, but that said statute did not prohibit marriages between a man and his son’s widow, such as was the relationship between Berry Griggs, Sr., and Elizabeth O. Griggs, and that there could therefore be a valid common-law marriage between Berry Griggs, Sr., and Elizabeth O. Griggs.

4. I conclude that the defendant R. H. Griggs has shown title to six-eighths of one-half of the 220 acres of land in controversy herein, or 82% acres; that judgment should be rendered that the plaintiff herein take nothing as against the defendant R. H. Griggs as to an undivided 82% acres of the 220-acre tract in controversy herein.

5. I conclude that the plaintiff, Houston Oil Company of Texas, has shown the legal title to 137% acres of the 220 acres of land in controversy herein to be in itself, and that it is therefore entitled to judgment against the defendant B. H. Griggs for an undivided 137% acres of land in controversy, together with all costs of suit.

Under appellant’s first four assignments of error, the judgment of the court is attacked in concluding that a common-law marriage existed between Berry Griggs, Sr., and Elizabeth O. Griggs, and that the property acquired by Elizabeth O. Griggs in 1859 was therefore community property.

The court’s findings to the effect that Berry Griggs, Sr., and Elizabeth O. Griggs, before they came to Texas, were living together in the state of Florida, and had several children born to them before they left that state, and that when they immigrated to Texas they continued such relationship, and lived together as husband and wife, and had bom to them a number of other children, is based upon the undisputed evidence, and is not in any way attacked by any of the parties to this suit. Under these conditions, unless Elizabeth O. Griggs and Berry Griggs, Si-., were precluded from marrying each other by the laws of Texas when they came here, they would be husband and wife, under the rules governing common-law marriages.

The question to be determined, therefore, is: Did the laws of Texas in 1857, when they came to this state, forbid the marriage of a man to his son’s widow! The trial court found that the laws of Texas did not, at that time, prohibit the marriage of a man to his son’s widow, in that the law of that period only prohibited the marriage of a man to his son’s wife, and the statute, therefore, did not include a son’s widow, and that the law so remained until the act of August 28,1858, when it was amended to include specifically, the son’s widow.

It is evident that the legislative body of the state recognized that the statute, as it was written prior to the enactment of August 28, 1S5S, did not include within its terms a son’s widow, for the amendment specifically changed the law to so include the widow; the wording of that amendment being, “No man shall marry * * * his son’s widow.” This is rather a fine distinction, and doubtless in the original act, when it was passed, it was thought by the Legislature that the wife would include the widow also; but, as is evidenced from the subsequent action of the Legislature, a different conclusion was reached, that body recognizing a defect in the law in that respect, and changing it accordingly. . Contemporaneous and practical interpretation and construction of statutory provisions by the legislative department in their enactment of laws necessarily has great weight with the judiciary, and such practical construction and interpretation will be followed by the courts, if it can be done without doing violence to the fair meaning of the words used. 8 Cyc. 735.

The record in this case shows that Elizabeth O. Griggs and Berry Griggs left the state of Florida to keep from being criminally prosecuted. The relationship of husband and wife, to all intents and purposes, in so far as the consent of the parties was concerned, and their acts in holding each other out to the world, constituted in every respect a marriage relationship, excepting the performance of a formal ceremony. It is quite reasonable to suppose, therefore, that Berry Griggs and Elizabeth O. Griggs, when they left the state of Florida, were seeking an asylum .in some commonwealth where their relationship was not illegal. This relationship continued to exist from the time they landed here in 1857 until the death of Berry Griggs in 1881. A number of children were born to them in this state. They reared a family, and in so far as this record shows no question was ever raised, through all that period of years, affecting the legitimacy of their relationship or of their children.

It seems'that it has been the purpose and intent of our laws, and of the judiciary construing them, to always look upon the marital relationship, whether statutory or common-law, with great liberality, in an effort to sustain the legality of such relationship. Chief Justice Gaines, in writing upon this question, used the following language:

“When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proofs, the law raises a presumption of its legality, not only casting the burden of proof , upon the party objecting, but requiring him throughout and in every particular plainly to make the fact appear,, against the constant pressure of this presumption, that it is illegal and void. The strength of the presumption increases with the lapse of time to which the parties are cohabiting as husband and wife. It being for the highest good of the parties, of the children, and of the community that all intercourse between the sexes in form matrimonial should be such in fact, the law, when administered by enlightened judges, seizes upon all probabilities, and presses into its service all things else, which can help it in each particular case to sustain the marriage, and repel the conclusion of unlawful commerce.” Nixon et al. v. Wichita Land & Cattle Co., 84 Tex. 408, 19 S. W. 560.

There are many other decisions, both of this state and other states, indorsing the principle above expressed, and sanctioning the view that such relationship, as is shown to exist in the instant case, should be considered with great liberality, and, wherever it is possible so to do, to solve all doubt affecting the matrimonial relationship in favor of sustaining such relationship. Morgan v. Morgan et al., 1 Tex. Civ. App. 315, 21 S. W. 154; Grigsby v. Reib, 105 Tex. 597, 153 S. W. 1124, Ann. Cas. 1915C, 1011; Yates v. Houston, 3 Tex. 433; Babb v. Carroll, 21 Tex. 706; Lewis v. Ames, 44 Tex. 345; Routh v. Routh, 57 Tex. 589; Gall v. Gall, 114 N. Y. 109, 21 N. E. 106; Rose v. Clark, 8 Paige (N. Y.) 574; Matter of Schmidt, 42 Misc. Rep. 463, 87 N. Y. Supp. 463; Geiger v. Ryan, 123 App. Div. 722, 108 N. Y. Supp. 13.

We think the authorities above cited warrant the holding that there was no legal impediment in the laws of Texas in 1857, when Elizabeth O. Griggs and Berry Griggs, Sr., immigrated here, which prohibited the consummation of a common-law marriage, and that the facts and circumstances in the record show that such a consummation was effected, and that a common-law marriage existed between the said parties. Therefore assignments of error 1 to 4, inclusive, are overruled.

In its sixth assignment of error, the appellant contends:

“That the court erred to the prejudice of the plaintiff in rendering judgment in favor of R. H. Griggs for any of the land sued for, for that, even if it was shown that there was a valid marriage between Elizabeth O. Griggs and Berry Griggs, Sr., existing at the time the land in controversy herein was acquired by Elizabeth O. Griggs from Sampson 'Watson and wife on October 15, 1859, said Elizabeth O. Griggs was, by deed from Sampson and wife, invested with the legal title to the land in controversy herein, and even if said land was community property between said Elizabeth O. Griggs and Berry Griggs, Si-., it was incumbent upon the defendant R. II. Griggs to show that the plaintiff herein, Houston Oil Company of Texas, had, at the time it purchased the land in controversy herein, notice, actual or constructive, of the equitable rights of said R. H. Griggs, and the children of Elizabeth 0. Griggs and Berry Griggs, Sr., under whom he claims the land in controversy herein, and the burden of proof was on the defendant R. H. Griggs to affirmatively show such notice, which burden of proof was not met and discharged by showing that in the certificate of acknowledgment made by T. H. Goode, notary public, before whom Elizabeth O. Griggs acknowledged power of attorney to C. E. Smith, which power of attorney is a link in this plaintiff’s chain of title to the land in controversy, that said Elizabeth O. Griggs was described as Mrs. Elizabeth O.' Griggs, since there was nothing in the body of the deed, nor with certificate thereto, to indicate that Elizabeth O. Griggs was at that time or had ever been a married woman, and since the certificate of acknowledgment of Elizabeth O. Griggs to said power of attorney, as made by said notary public, was in form such certificate of acknowledgment as, was required by the law of the state of Texas at that time for the acknowledgment of a feme sole. The description of said Elizabeth O. Griggs in such certificate of acknowledgment as Mrs. Elizabeth O. Griggs was insufficient to put this plaintiff, or any of its predecessors in title, on inquiry as to whether or not said Elizabeth O. Griggs was, at the date of the execution and acknowledgment of said power of attorney, a widow, having children, or of the fact of a prior marriage between said Elizabeth O. Griggs and Berry Griggs, Sr., and the existence of children who are the result of such union; and the acknowledgment of said power of attorney being insufficient to charge or fix this plaintiff or any of its predecessors in title with such notice, or put them on such inquiry, plaintiff herein was therefore an innocent purchaser for value of the land and premises in controversy, and as such innocent purchaser entitled to protection, and the court should have rendered judgment in favor of plaintiff, and against the defendant R. H. Griggs, for all of the iand in controversy.”

No question is raised in the record that the appellant, Houston Oil Company of Texas, is not an innocent purchaser for value, and without notice of any of the secret equities of the appellee, except in so far as it was charged, by the use of the word “Mrs.” in said certificate of acknowledgment, with constructive notice of such equities. This question is, therefore, to be solved upon the effect of the use of the word “Mrs.” in said certificate to charge such notice.

Elizabeth O. Griggs acquired the land in question on October 15, 1859, under a deed from Sampson Watson and wife; said deed reading:

“Have granted, given, bargained, sold, released and conveyed, and by these presents do grant, give, bargain, sell, release, convey and confirm, unto the said Elizabeth O. Griggs, her heirs and assigns, forever, all that tract or parcel of land, etc., * * * and all the benefits and appurtenances thereunto belonging or in any wise appertaining unto her,. the said Elizabeth O. Griggs, and to her heirs and assigns, forever, * » * and do truly warrant and forever defend her, the said Elizabeth O. Griggs, in the quiet and peaceable possession of the premises herein.”

On April 16, 1890, Elizabeth O. Griggs executed to O. E. Smith a power of attorney to grant, bargain, sell, and convey the 220 acres in controversy; said power of attorney being in the following language:

“ * * * Elizabeth 0. Griggs, of the state of Texas, county of Newton, made, constituted, and appointed, and by these presents'do make, constitute, and appoint O. E. Smith, of Burke-ville, Texas, my true and lawful attorney, for me and in my name, place, and stead, to grant, bargain, sell, and convey the following described parcel of land, etc., * * * and for me and in my name to make, execute, acknowledge, and deliver good and sufficient title for the same, with or without covenants of warranty, giving and granting to my said attorney full power and authority to do and perform all and every act necessary to be done in the premises. * * * ”

This instrument is signed Elizabeth O. Griggs. The certificate of acknowledgment on this power of attorney reads:

“State of Texas, County of Newton.
“Before me, T. H. Good, a notary public, on this day personally appeared Mrs. Elizabeth O. Griggs, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that she executed the same for the purposes and consideration therein expressed.
“Given under my hand and seal of office this 16th day of April, A. D. 1890.
“T. H. Good, Notary Public,
“Newton Co., Texas.”

Oh the 26th day of April, C. E. Smith, acting under said power of attorney, sold and conveyed the land to James E. Price for a recited consideration of $650. That deed reads as follows:

“ * * * That I, Elizabeth O. Griggs, of the county of Newton and state aforesaid, for and in consideration of the sum of $650 to mo in hand paid by James E.- Price, have this day, by and through C. E. Smith, my attorney in fact, duly constituted by a power of attorney dated April 16, 1890, granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto said James E. Price all that certain tract or parcel' of land,” etc.

Said deed is signed, “Elizabeth O. Griggs, by Her Agent and Attorney in Fact, O. E Smith.” There is nothing in the record, or on the face of these instruments, of any kind or character that would charge notice of any adverse claims, unless, as contended by ap-pellee, and as found by the court, the use of the word “Mrs.” before the name of Eüizá-beth O. Griggs, in the certificate of acknowledgment to the power of attorney, has that effect.

The doctrine of notice, and the distinctions between “actual” notice, “implied” notice, and “constructive” notice, is technical in the extreme, and there is much confusion among the decisions and text-writers on those subjects. Perhaps the clearest discussion of the matter is that given by Mr. Pomeroy in his admirable work on Equity. He says:

“ ‘Aetual’ notice embraces all those instances in which positive personal information of a matter is directly communicated to the party, and this communication of information, being a fact, is established by evidence directly tending with inore or less cogency, to its proof. ‘Constructive’ notice includes all other instances in which the information thus directly communicated cannot be shown, but the information is either conclusively presumed to have been given and received from the existence of certain facts, or is implied by the prima facie presumption of the law, in the absence of contrary proof.” Section 594.
“Within the meaning and rules, notice may, I think, be -correctly defined as the information concerning a fact actually communicated to a party by an authorized person, or actually received by him from a proper source, or else presumed by law to have been acquired by him, which information is regarded as equivalent in its legal effect to full knowledge of the fact, and to which the law attributes the same consequences as would be imputed to knowledge. It should be carefully observed that the notice thus defined is not knowledge, nor does it assume that knowledge necessarily exists.” Section 594.
“It is admitted by all 'text-writers and by many judges that much confusion and inaccuracy of language are exhibited in the decisions concerning ‘actual’ and ‘constructive’ notice; notices are not infrequently called ‘constructive,’ which are really actual, and the rules governing the two are confounded. If the party has knowledge or information of facts sufficient to put him upon inquiry, has often been treated as peculiarly the characteristic of constructive notice. In truth, however, this test is equally applicable to every instance of-actual notice conferred by process of rational deductions from circumstances in evidence. The distinction,' however, is plain, and natural. In all eases of constructive notice there is no evidence _ which directly tends to show that any information of the prior conflicting claim was personalty brought home to the consciousness of_ the party affected; the particular facts of which he is shown to have knowledge do not directly tend to show such information; but from these facts the legal presumption arises, either conclusive or rebut-table, that the information was received. In all cases of actual notice inferred from circumstantial evidence, the facts proved do directly tend to show that information of the prior conflicting claim was personally• brought home to the consciousness of the party. The court or jury infers from the facts proved, by a process of rational deductions, but without the aid of any legal presumption, that such information was actually received.’’ Section 596.

The notice in the instant case, and relied upon to sustain the judgment, is, in its nature, “constructive” notice. It is not contended that the appellant, or its predecessors in title, had any information of the prior conflicting claim of appellee, which was personally brought home to their consciousness, or that there were any particular facts of which they, or either of them, had knowledge, which tended to such information, but that a legal presumption' arises, ipso facto from the use of the adjective “Mrs.” in the notary’s certificate, that there was an outstanding latent or secret equity in the land conveyed by Elizabeth O. Griggs, of which appellant must be presumed to have had information.

. The word ‘.‘Mrs.” is the only circumstance in the whole chain of title which, by inference or otherwise, can be urged to charge notice of such claim. When all of the instruments in-the chain of title are regular and in proper form, will this three-letter description of the granting party in the certificate of acknowledgment be such in itself as to put a reasonably prudent person upon notice of any outstanding conflicting claims in the title?

There is nothing in the laws of Texas that restricts or prohibits a “Mrs.,” so long as she is a feme sole, from conveying and transferring a fee simple or lesser title to lands. She has the same freedom and authority in that respect as the male members of the human family have. When the certificate of acknowledgment to an instrument is single in form, and there is no other fact or circumstance, other than the descriptive word “Mrs.” in said certificate before the name of the acknowledging party, connected with the chain of title of a nature to excite suspicion, what prompting of reasoning would urge an ordinarily cautious man to think there was something which might give rise in such conveyance to an exception to the power of the “Mrs.” to ordinarily do what the law authorized her to do, if she was a feme sole?

If there was an intimation anywhere in the chain of title that Elizabeth «O. Griggs was a married woman at the time of the execution of the deed to her in 1859, we would be confronted with a different proposition. Then a presumption that the estate was community would arise. Hardy Oil Co. v. Burnham, 124 S. W. 221. The deed to her of that date is without recitals of any kind showing that at the date of the conveyance she was under coverture, and such instrument is entirely free from any such suspicion. The recitals in a deed only charge a party with notice of such facts as the words or condition import. Cooke v. Bremond, 27 Tex. 457, 86 Am. Dec. 626. The word “Mrs.,” used in connection with the name of the grantor, Elizabeth O. Griggs, only charged the purchaser with notice that at some time during her lifetime she was a married woman. That is all the word itself means.

The doctrine of constructive notice,, as appellee seeks to apply it in this case, is harsh in its nature. It has no root in personal information or knowledge, but must find its support upon a legal presumption. A merge vague allusion to something which may or may not lead to an interest in the property ought not, under the circumstances of this case, be accepted by the court as a predicate for the application of a doctrine so austere in its nature. It has been held that, where the circumstances relied upon as sufficient to charge a party with notice may equally as well be referred to some other matter as the one with notice of which he is sought to be charged, they will not be deemed to be sufficient. 29 Cyc. 115; Chadwick v. Clapp, 69 Ill. 119. The circumstances known to the purchaser ought to have been of such a nature as to have reasonably excited the suspicions of a reasonably cautious man. College Park Electric Belt Line Co. v. Ide, 15 Tex. Civ. App. 273, 40 S. W. 64; 29 Cyc. 1115.

It is impossible to define by a single formula what will amount to notice sufficient to affect the party receiving it, and neither the courts nor the text-writers have undertaken to lay down any such formula. Each case must depend, to a considerable extent, upon its own particular circumstances. Section 602, Pomeroy on Equity. However, we feel that the suit of Veatch v. Gilmer, 111 S. W. 747, a decision by the Court of Civil Appeals, in which a writ of error was granted by the Supreme Court (Gilmer v. Veatch 102 Tex. 384, 117 S. W. 430), and the judgment of that court reversed, is by analogy in point. In that case John Alfred Veateh and others, heirs of John A. Veateh, brought suit against A. Gilmer and others in trespass to try title to 1,349 acres in the Kennard league in Sabine and Newton counties. This land was the community property of John A. Veateh and his deceased wife, who died in 1845. John A. Veateh lived until 1870. He left six children, all having been born of his said wife, and among those children was the appellant, John Alfred Veateh, and Samuel H. Veateh. John Alfred Veateh executed a power of attorney to Samuel H. Veateh “to do any lawful act for and in my name, as if I were present.” Acting under this power of attorney the said Samuel Veateh sold the entire interest of the heirs of John A. Veateh, including the interest of John Alfred, the plaintiff, in the Kennard league of land. The deed conveying the land under said power of attorney for and on behalf of the appellant read as follows:

* * * Have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto Allen Veateh, of the county of Sabine, Texas, all that certain tract or parcel of land situated in Sabine county, Texas, about 15 miles southeast from the town of Hemphill; the same being all the right, title, and interest we have as heirs at laio of John A. Veateh, deceased, in the TV. $. Kennard league of land in Sabine county, Texas.”

It was contended by the appellant in that case that the deed which the attorney made purported to convey only the principal’s interest as an heir of John A. Veateh, his father, and not the interest he inherited from his mother. The trial court, in his conclusions of law, held:

“I conclude that the purchase by the defendant of the property from the heirs, after the death of both the husband and wife, makes them purchasers with notice of the interest of the wife in the community property, and for that reason they are not innocent purchasers, for value, without notice; but otherwise I would find them to he purchasers in good faith, for value, without notice of the title of the wife.”

Upon this question the Court of Civil Appeals held:

“The deed purported to convey the interest appellant had in the land as an heir of John A. Veateh, deceased. By this deed defendants had notice of the relationship which constituted appellant an heir of John A. Veateh, the original owner. The deed did not recite that he was a son; but, as such was the fact and constituted his heirship, defendants were charged with knowledge of it. This fact would suggest to purchasers, exercising ordinary care, that John A. Veateh, the father, was a married man, and that the property might have been community property of that marriage. Being thus put upon inquiry as to such conditions, defendants, in the absence of some showing of diligence, would'be charged with knowledge of the fact that they were dealing with community property of appellant’s father and mother.”

The Supreme Court, in reversing and reforming this conclusion, said:

“The cross-assignment [of error] asserts that the court erred in not holding that the deed of John Alfred Veateh, by his attorney in fact, Samuel H. Veateh, did not convey the equitable title inherited from his mother in the land, and in not decreeing that the vendee in such deed was an innocent purchaser of that interest. The agreed statement is ‘that the defendants own all the land in suit, the title to which has never passed out of the heirs of John A. Veateh, and that they acquired the property in good faith, for value, holding proper deeds therefor.’ But the Court of Civil Appeals held that, by reason of the fact that the deed purported to convey John A. Veatch’s interest as an heir, this apprised the purchaser of the fact that he was a son, and that his father had been a married man, and that the property may have been acquired in the lifetime of his mother. It seems to us that this is pushing the doctrine of notice too far. There was nothing upon the face of the deed to indicate that at the time it was executed John A. Veateh had a wife then living, so there is nothing on the face of the papers to give notice of that fact. We are unable to discern any fact in the case that should have put the purchasers of the land upon notice that Mrs. Veateh was living at the time the land was acquired by her husband, John A. Therefore wo are of the opinion that, instead of recovering of John A. Veateh 111 acres of the land, the defendant should have recovered 222 acres; and accordingly the judgment will in that respect be reformed.”

Likewise, in the instant case, there is nothing upon the face of the deed to Elizabeth O. Griggs to indicate that at the time it was executed Elizabeth O. Griggs was a married woman and had a husband living, and so there is also nothing on the face of the papers to give notice of that fact. We, too, are unable to discern any fact in the case that should have put the purchaser of the land upon notice that Berry Griggs, Sr., the husband of Elizabeth O'. Griggs, was living at the time the land was acquired by the wife.

To hold that, when the purchaser saw the word “Mrs.” before the name of Elizabeth O. Griggs, it was apprised that at the time the deed to her was executed in 1859 that she was married to a man by the name of Berry Griggs, Sr., that of her union with him there were born eight children, that the husband since died, and that the eight children inherited the undivided one-half interest, his part of the community, and that at the time of’ the conveyance of Elizabeth O. Griggs, 30 years afterwards, under her power of attorney of the land to Price, that such interests were an outstanding equity, is pushing the doctrine of constructive notice farther than we think it ought to go. It is placing a quality of mind in the “ordinarily prudent” man equal to that of the gifted Shakespeare, who, “having seen a leaf and a drop of water, could construct the forests, the rivers, and the seas, and see all the cataracts fall and foam, the mists rise, and the clouds form and float,” and this quality of mind we believe out of harmony with the practical side of conveyancing of land.

The sixth assignment of error is sustained.

Under our view of the case, it will not be necessary to consider appellant’s other assignments of error.

The judgment of the lower court is therefore reversed, and judgment here now rendered for the appellant for the 220 acres of land originally sued for.
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author: HODGES, J.

text:
    EDWARDS v. CLEMMONS et al.
    (No. 1533½.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 15, 1915.
    Rehearing Denied Jan. 6, 1916.)
    1. Homestead &wkey;154^-Loss oe Right — Use and Occupancy.
    An instruction, jn effect, that one lost his homestead if he ceased to use or ceased to occupy the property as a homestead, is erroneous; either use or occupancy being sufficient to maintain it.
    [Ed. Note. — For other cases, see Homestead, Cent. Dig. § 307; Dec. Dig. <&wkey;>154.]
    2. Homestead <&wkey;181 — Continuance oe Right — Use oe Land.
    Evidence that one cultivated part of the land each year and used a part of it for pasture is sufficient to authorize a finding that he was continuing to make a homestead use of it.
    [Ed. Note. — Eor other cases, see Homestead, Cent. Dig. §§ 351-353;. Dec. Dig. &wkey;181.]
    3. Trial &wkey;>255 — INSTRUCTIONS—Nature oe Error — Request eoe Instruction.
    It is not an error of omission, requiring a request for a special charge to cure it, but one of affirmative misdirection, for an instruction, contrary to the law, to make continuance of defendant’s homestead right depend on his occupancy, which had admittedly ceased.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 627-641; Dec. Dig. &wkey;255.]
    Appeal from District Court, Harrison County; H. T. Lyttleton, Judge.
    Action by Ann Clemmons and another J. S. Edwards. Judgment for plaintiffs, and defendant appeals.
    Reversed and remanded.
    Young & Young, of Marshall, for appellant. R. A. Sexton, of Marshall, for appel-lees.
   HODGES, J.

The appellee Ann Clemmons, joined by her husband, John Clemmons, sued the appellant in an action of trespass to try title for possession of 100 acres of land situated in Harris on county. In the agreed statement presented in the record it is shown that the land in controversy formerly belonged to Jane Edwards, the deceased wife of the appellant; that after her death the appellant continued to reside upon the land for about two years, when he married a second wife, who owned a tract of 50 acres about a mile distant. 1-Ie then moved to the home of his present wife, where he has since resided. Jane Edwards left no children, and her only heir was the appellee Ann Clemmons, a niece. In a trial before a jury judgment was rendered in her favor for one-half of the land, and .in favor of the appellant for the other half. The jury also found that the appellant had no homestead rights in the land.

It is conceded’ that the evidence supports the finding of the jury upon all the issues except that of homestead. The appellant testified, in substance, that the two places were about a mile apart. After he married his present wife, which was about two years after the death of his wife Jane, he moved to the place of his second wife, because it had on it a better house. He has cultivated parts of the 100 acres every year since, and each year has rented a part of it to tenants. He used the rents to support his family. 1-Ie also used a part of the 100-acre tract for pasture every year since he left it. He drove his cattle back and forth. There was other testimony offered by the appellees tending to show that he had rented the land to tenants continuously since Ms last marriage. The court gave as a part of his main charge the following:

“You are instructed that the surviving husband has the right to the homestead, and it cannot be partitioned so long as he may choose to use .and occupy it as such. In this connection you are charged that if the surviving husband ceased to use or occupy the property in controversy as a homestead, then the same would be subject to partition among the heirs of the deceased wife, and the plaintiff would be entitled to recover her interest in said land and have the same partitioned and set apart to her, provided you further find that the plaintiff is a niece of Jane Edwards, deceased.”

It is contended that the charge quoted above was erroneous because:

“Same makes the exemption depend on the question of whether the defendant lived on or occupied the land in controversy, when exemption depends upon whether the land was used as a homestead, regardless of whether he lived on it.”

The charge is, we think, subject to the criticism. It in effect tells the jury that the appellant lost his homestead right if he ceased to use or ceased to occupy the property as a homestead. This is not the law, as determined by the courts of this state. Either use or occupancy is sufficient. Autrey v. Reasor, 102 Tex. 123, 108 S. W. 1162, 113 S. W. 748; Thigpen v. Russell, 55 Tex. Civ. App. 211, 118 S. W. 1080, and cases there cited.

In reply to the assignment raising this question the appellees insist that the evidence did not raise the issue of homestead; that as a matter of law it was insufficient to support any judgment other than that which was rendered. We do not agree to that contention. If tlie appellant, as lie says lie did, cultivated a part of tlie land eacli year and used a portion of it for pasture, tiiat would be sufficient to authorize the jury to find that be was continuing to make a homestead use of the land.

It is also contended that the error, if any, is one of omission, and was waived by the failure of the appellant to request a special charge curing the defect. We are unable to appreciate the force of that contention. The charge was an affirmative misdirection in giving the jury the legal test for deciding that issue. They could not have found a different verdict under that instruction, because it was admitted that appellant had ceased to occupy the premises.

The remaining assignments of error are overruled; but for the error discussed the judgment will be reversed and the cause remanded.
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