
    MARCH et al. v. SPIVY.
    (Court of Civil Appeals of Texas.
    Dec. 22, 1910.
    On Motion for Rehearing, Jan. 19. 1911.)
    1. Acknowledgment (§ 6) — Conveyance or Married Woman’s Separate Property-Certificate of Acknowledgment.'
    Where the certificate of acknowledgment of a married woman of a deed of lifer separate property does not state that after executing it she declared she “did -not wish to retract it” in compliance with the law then in force (Paschal’s Dig. art. 1003), the deed is invalid, although the price was paid.
    [Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 51-53; Dee. Dig. § 6.]
    2. Acknowledgment (§ 47) — Married Woman’s Deed — Defects—Curative Act.
    Act April 23, 3907 (Acts 30th Leg. c. 165), amending Rev. St. 1895, art. 2312, provides that every written instrument recorded after being acknowledged as provided by the law when recorded or when it was acknowledged, or every instrument which has been actually recorded for 10 years, whether properly acknowledged or not, shall be admitted in evidence without proof of execution, etc. Held, that such act is ineffective to give validity to a deed by a married woman of her separate property, which was invalid for failure of the certificate of acknowledgment to recite that after executing the deed she declared she “did not wish to retract it.”
    [Ed. Note. — For other cases, see Acknowledgment, Cent. Dig. §§ 235-239; Dec. Dig. § 47.]
    3. Trespass to Try Title (§ 12) — Effect of Prior Possession.
    In trespass to try title,. where defendants failed to prove .title of any kind to the land, and one of the deeds in .plaintiff’s chain of title is invalid, and the proof shows that the title is in a third person, the plaintiff is not entitled to recover because his possession of the land was prior to that of defendants; both being trespassers.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. § 17; Dec. Dig. § 12.]
    Appeal from District Court, Rusk County; W. C. Buford, Judge.
    Action by R. B. Spivy against D. W. March and others. Judgment for plaintiff, and defendants appeal.
    Reversed, and judgment in favor of defendants rendered.
    John R. Arnold, for appellants. J. H. Turner, N. B. Morris, and H. I. Myers, for ap-pellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   WILLSON, C. J.

This-appeal is from a judgment in favor of appellee against appellants, rendered in a suit brought by the former against the latter to try the title to 209 acres of the J. Durst survey of one league in Rusk county. The survey was patented to Durst. He conveyed it to Alexander Jordan. In a partition made among'the heirs of Jordan, the 209 acres were set apart to Emily J. Hensley, his daughter. By a deed dated September 7, 1857, she^ joined by her husband, for a valuable consideration paid to them, undertook to convey the 209 acres to C. A. Few. The 209 acres being a part of Mrs. Hensley’s separate estate, it is contended that her deed to Few was void, because itr execution by her was not proven in the manner the law then in force (Pas-hal’s Dig. art. 1003) required the deed of a married woman conveying her separate property to be proven. If this contention should be sustained, it will not be necessary to determine other questions presented by the assignments; for that deed constituted an indispensable link in appellee’s chain of title, and, if it was void, without respect to such other questions, appellee was not entitled to recover the land. The specific ground upon which it is claimed that the deed was void is that it did not appear from the certificate of the officer before whom its executionby Mrs. Hensley purported to have been acknowledged that, after executing it, she declared she “did not wish to retract it.” It has been repeatedly held that such an omission in such a certificate, when not supplied by words of equivalent meaning (Norton v. Davis, 83 Tex. 36, 18 S. W. 430; Belcher v. Weaver, 46 Tex. 298, 26 Am. Rep. 267; Masterson v. Harris, 37 Tex. Civ. App. 145, 83 S. W. 428), as they were not In the certificate in -question, is fatal to the validity of such a deed (Holland v. Votaw, 130 S. W. 884; Veeder v. Gilmer [Sup.] 129 S. W. 596; Murphy v. Reynaud, 2 Tex. Civ. App. 470, 21 S. W. 991; Estes v. Turner, 30 Tex. Civ. App. 365, 70 S. W. 1007; Ruleman v. Pritchett, 56 Tex. 482; Fitzgerald v. Turner, 43 Tex. 84; Burkett v. Scarborough, 59 Tex. 495; Freeman v. Preston, 29 S. W. 495). Appel-lee’s insistence that a different ruling should be made in this case, because it was shown that the purchase price of the land was paid by Few to the Hensleys cannot be sustained. The contrary of that insistence is settled law in this state. Berry v. Donley, 26 Tex. 737; Daniel v. Mason, 90 Tex. 244, 38 S. W. 161, 59 Am. St. Rep. 815; Fitzgerald v. Turner, 43 Tex. 84; McLaren v. Jones, 89 Tex. 135, 33 S. W. 849. Nor can appellee’s contention that Act April 23, 1907 (Laws 1907, c. 165), amending article 2312, Rev. St., operated to render valid Mrs. Hensley’s deed be sustained. The contrary of that contention has recently been settled in a well-considered case decided by the Court of Civil Appeals of the First District (Holland v. Votaw, supra), in which the Supreme Court not only refused a writ of error, but in doing so, as appears from an unofficial report of its action, took occasion to express its approval of the conclusion reached by said Court of Civil Appeals.

The trial court found that the Hensleys “delivered possession of the land to Few,” and that appellants did not have a title of any kind to the land. Appellee insists that, if effect is given to these findings, the judgment in his favor was warranted, because it appeared that his possession of the land was prior to that of appellants, who were mere trespassers thereon. It has been held that while -the possession of the defendant in such an action entitles him to a judgment against the plaintiff, unless the latter shows a prima facie title, he does this when he shows a possession prior “to that under which the defendant claims with a regular chain of title connecting himself with such possession.” Keys v. Mason, 44 Tex. 140. The holding is but a recognition of a mere rule of evidence, “founded upon the principle that, since ownership is a usual concomitant of possession, it is a reasonable prima facie inference that the possessor of property is the owner of such property.” Watkins v. Smith, 91 Tex. 592, 45 S. W. 561. The inference is held to be effectually rebutted by evidence showing that the title was not in the plaintiff, or his vendor, at the time he was in possession, but was in another person. Thus, in Robertson v. Kirby, 25 Tex. Civ. App. 472, 61 S. W. 967, where the prior possession of the plaintiff was taken and held under a title claimed to be in one Henry B. Williams, it was held that the presumption of title in plaintiff arising from his prior possession was effectively rebutted by proof that the title was then in another Henry B. Williams. In the case Cited the court said; “Suits to recover land by showing prior possession and title out of the state have been treated by our Supreme Court as analogous to those in which proof of superior title under,,a common source is relied on. In Ferguson v. Ricketts [93 Tex. 565] 57 S. W. 19, which was of the latter class, it was held that recovery might be defeated by showing that the original grantee, who made a deed to the common source, had made a previous conveyance to another, as that was held to rebut the presumption of title in the common source, though it was not otherwise or conclusively shown that the common source had not acquired this title.” Bates v. Bacon, 66 Tex. 348, 1 S. W. 256, further illustrates the rule. In that case the plaintiff claimed title as the purchaser at an execution sale of the land as the property of one Russell, the patentee thereof. The patent to Russell was void, and therefore, at the time the sale under the execution against him was made, he had no title to the land. Afterwards the grant to Russell was validated by an act of the Legislature, and the plaintiff claimed that his title was thereby perfected. In reversing a judgment in favor of tjie plaintiff, the court said: “The plaintiff’s recovery might have been sustained upon the strength of his prior possession if the patent had not been introduced. The patent, in connection with the validating act, proved an outstanding title. The plaintiff, after showing Russell was the owner, could not recover Russell’s land upon proof that he trespassed upon it before the defendant did. The presumption of title arising from proof of prior possession was rebutted by the plaintiff’s proof of title in Russell.” What was said there applies as strongly here, for appellee proved the title to the 209 acres to be in Mrs. Hensley. He should not have been held to be entitled to recover her land because he proved that he first trespassed on it.

The judgment will be reversed, and a judgment in favor of appellants against appellee will be here rendered.

On Motion for Rehearing.

It is insisted in the motion that “the facts-show that Hensley survived his wife and failed to show that she left surviving her any children or other heirs.” It is further insisted that it therefore appeared that Hensley by inheritance from his wife had acquired title to the land, and that, as his deed to Few contained covenants of general warranty, the title he so acquired inured to the benefit of his vendee Few; and hence that we erred in holding that appellee, having acquired Few’s title, had not shown title in himself to the land. The contention evidently is made because of a misapprehension of the record. The court did not find the facts mentioned, nor was he requested to make findings with reference to same. In his brief' appellee did not present such a contention, nor did he point out in the record any evi-deuce showing that either Hensley or his wife was dead; if they Were dead, when they respectively died; whether Mrs. Hensley, if dead, died testate or not; nor whether she left a child or children surviving her or not; and on examination made of the record in connection with the motion we have been unable to find any testimony showing anything about these matters.

The motion is overruled.  