Appellant was convicted for having in his possession, with intent to pass, an instrument signed, by G.A. Tutwiler, Fannie Johnson (wife of appellant), and appellant, conveying his homestead. The instrument is a deed in the ordinary form, including warranty clause, but unacknowledged, and purports to have been signed by all the parties on the 15th of July, 1895. The instrument "shows upon its face" that it was intended to convey the homestead of Johnson and wife to Fannie B. Stirman. The indictment does not set out the acknowledgment of any of the parties signing the instrument, nor is there an averment as to any interest that Tutwiler may have had in the homestead of the Johnsons. As set forth in the indictment, we do not believe this instrument the subject of forgery. If Mrs. Fannie Johnson was conveying the title to her homestead, it was a prerequisite to the validity of said conveyance that her privy acknowledgment should have been taken. There can be no conveyance of the homestead, so as to divest the wife of her interest in it, without her privy acknowledgment. There are no explanatory averments in the indictment as to Tutwiler's interest, and looking upon the face of it, it is not made to appear that Tutwiler had any interest in the homestead of Johnson and wife. As we understand the decisions of our Supreme Court, the homestead, can not be conveyed without the consent, of the wife, and not even then unless her privy acknowledgment has been taken to the deed of conveyance. Berry v. Donley,26 Tex. 745; Smith v. Elliott, 39 Tex. 210 [39 Tex. 210]; Whetstone v. Coffey, 48 Tex. 278 [48 Tex. 278]. See also Rev. Stats., arts. 636, 4621. We are therefore of opinion that the instrument, as declaimed upon, is not the subject of forgery.
We furthermore find that Tutwiler and appellant signed and acknowledged the instrument, and that before Tutwiler did so, he insetted the following: "And the other consideration named in this deed is that said W.A.J. Stirman and wife, Fannie B. Stirman, will convey the Stirman Hotel property, in Ozona, Texas, to G.A. Tutwiler." After this clause was inserted, Tutwiler and appellant signed and acknowledged the deed. Appellant and the notarial officer then carried it to Mrs. Fannie Johnson, to be executed by her; and, when she discovered the above clause inserted, she refused to do so, and the officer left. It was then late at night. The following morning she agreed to sign it, if said clause was eliminated, whereupon appellant erased it. She then signed and acknowledged it. Now, if there is a forgery, it is found in the fact that appellant erased from the deed the clause inserted by Tutwiler, and thus altered the instrument. If Tutwiler had any interest in the homestead, it was by reason of the fact that he and another party *Page 612 had become sureties for appellant for a debt of $1200 due by appellant to other parties, and that he secured Tutwiler against loss by joining his wife in executing to Tutwiler what purported on its face to be a deed to this homestead, but which all the testimony shows was to operate as a mortgage to secure Tutwiler in the event he had to pay said security debt. The facts are further undisputed that this homestead property was also the separate property of Mrs. Fannie Johnson. This being true, it was a legal prerequisite to the conveyance of the property, whether homestead or separate property, that her privy acknowledgment be taken. Rev. Civ. Stats., arts. 635, 4621. Now, the facts demonstrate beyond question that Mrs. Johnson did not sign and acknowledge this instrument until after the clause inserted by Tutwiler had been erased. Her rights in this property, either homestead or separate, could not be conveyed, except upon her privy acknowledgment; and, when that privy acknowledgment was obtained, it was only to the instrument which she signed, and terms contained in it. She did not sign the deed executed by Tutwiler and appellant, but expressly refused to sign the same with the clause contained in it as inserted by Tutwiler. It took her signature to give validity to the original instrument. This she refused, and that signed by her was a different instrument from that signed by the others. This was not a completed instrument, and could not be, legally speaking, until after the signature and privy acknowledgment. Her conveyance of title is measured by the deed she executed, and not by one she did not execute; and, being both homestead and separate property, it was doubly necessary that her privy acknowledgment be taken before the instrument could affect either of those rights. So the instrument signed by Tutwiler and appellant was not a legal instrument, and that signed and acknowledged by the wife was not the instrument signed and acknowledged by them. Under the evidence, if there could be forgery shown, it is found in the fact that appellant erased from the deed the clause inserted by Tutwiler. This erasure is the only fact in the ease which could have any possible tendency to show forgery. Now, if the instrument altered by appellant was a nullity, for want of the wife's signature and privy acknowledgment, then her subsequent signature and privy acknowledgment did not relate back, and reinsert the erased clause. So, whether or not the deed was void upon its face, the facts upon which the State relied are not set forth in the indictment; and the case made by the evidence, even if the erasure constituted forgery, does not support the allegations in the indictment. In other words, if, under the evidence, Johnson could be charged with forgery, it must be by reason of the alteration; and this alteration should have been set forth in the indictment. But, as before stated, this alteration was that of an instrument which was a nullity. Therefore it could not technically form the basis of forgery, and appellant could not be guilty of having a forged instrument in his possession, etc.
Appellant urges, quite a number of other errors, but, under the view we take of the case, we deem it unnecessary to discuss them. However, *Page 613 we note the fact that the whole case was submitted by the court to the jury upon the theory that the forgery was constituted by altering a genuine instrument. As before stated, there was no allegation of forgery by alteration, and this charge was therefore erroneous. The charge must conform to the allegations of the indictment. The judgment is reversed, and the prosecution ordered dismissed.
Reversed and dismissed.