Citations
- 183 S.W.2d 426
Full opinion text
CRITZ, Justice.
On original hearing we delivered an opinion in this case affirming the judgments of the Court of Civil Appeals and district court. The case is now before us on separate motions for rehearing, filed by Humble Oil & Refining Company and by Mrs. Keller and husband. In passing on such motions we hereby withdraw our original opinion, and in lieu thereof substitute the opinion which follows. The original opinion will not be published.
Opinion.
On and prior to February 8, 1929, Mrs. Grace C. Ruby, a widow, and her daughter, Mrs. Clara May Downey, wife of Dorsey Downey, were joint owners of 76.52 acres of land in the Choate League in Harris County, Texas. On the date just mentioned Mrs. Ruby, and Mrs. Downey, joined by her husband, Dorsey Downey, executed to Mrs. Grace Keller, niece of Mrs. Ruby, and cousin of Mrs. Downey, a deed of gift to the above land. This deed shows its nature as a gift deed upon its face, and appears to be duly acknowledged by all parties thereto before “J. J. Shoemaker, Notary Public, Montgomery County, Maryland.” It was filed for record on May 3, 1929, and is duly recorded in the deed records of Harris County, Texas.
On April 28, 1934, Mrs. Grace Keller, joined by her husband, Hermann Keller, executed and delivered to Humble Oil & Refining Company, hereinafter called Humble, an “Oil & Gas Mining Lease,” covering this land. This lease contract was executed to and accepted by Humble while the above-described deed to Mrs. Keller stood duly recorded as above stated. As we understand this record, as between Mrs. Keller and Humble, this lease is in full force and effect.
After the execution and delivery of both of the above-described instruments, Mrs. Downey, who has been divorced from her husband above named, filed this suit in the District Court of Harris County, Texas, against Mrs. Keller and her husband, and Humble, to recover an undivided one-half interest in this land, on the alleged ground that she did not personally appear before the notary who certified to her separate acknowledgment to the deed to Mrs. Keller. Mrs. Keller and Humble answered, setting up various defenses, among which was included estoppel by fraud upon the part of Mrs. Downey. We will not further detail the pleadings. It is enough to say that we regard all pleadings as sufficient to put in issue the questions of law we shall decide.
This case was submitted to a jury on special issues in the district court, and, based on the answers to such issues, judgment was entered for Mrs. Downey and against Mrs. Keller and husband and Humble. This judgment was, in all things, affirmed by the Beaumont Court of Civil Appeals. Keller v. Downey, 161 S.W.2d 803. Mrs. Keller and her husband, and Humble have prosecuted separate writs of error to this Court.
In response to special issues duly submitted, the jury found: That Mrs. Downey never appeared before the officer who certified to her separate acknowledgment to the Keller deed; that at the time Mrs. Downey signed the deed she did not know that she owned an undivided interest in the land covered thereby; that at such time Mrs. Downey knew that the purpose of such deed was to convey this land to Mrs. Keller; that at the time Mrs. Downey signed this deed there was in existence an understanding, agreement, or custom between her and the notary who certified to her separate acknowledgment, whereby such notary, without Mrs. Downey’s personal appearance before him, would place upon any instrument bearing her genuine signature, and providing for a certificate of acknowledgment, his duly executed certificate showing due acknowledgment thereof before him; that such notary placed his certificate as to the acknowledgment of Mrs. Downey on this deed in accordance with, or as the result of, such understanding, agreement, or custom; that at the time Mrs. Downey signed this deed she understood and expected that it would be handed or sent to the notary who certified to her separate acknowledgment for the purpose of having him place thereon, in pursuance of his above-found understanding, agreement, or custom, his certificate of due acknowledgment; that when Mrs. Downey signed this deed she understood and expected that it would be delivered to Mrs. Keller with the genuine signatures of grantors and apparently valid certificates of acknowledgment thereon; that at the time Mrs. Downey signed this deed she knew, or under all the facts and circumstances in evidence ought to have known, that some other person, firm, or corporation would purchase from Mrs. Keller the land covered by this deed, or some part thereof or some interest therein, in reliance upon the apparent validity of such deed; that at the time Mrs. Downey signed the deed to Mrs. Keller she ought to have known, in the exercise of ordinary care and diligence on her part, that she had an interest in the land covered thereby; that Mi*s. Downey, in the exercise of ordinary g