After considering appellant's motion for rehearing, the writer has reached the conclusion that the motion should be granted and the case remanded for a new trial. However, this view is not shared by the majority and I deem a brief statement of the grounds of dissent appropriate.
The judgment of the trial court shows that the verdict was instructed against appellant in this case on the sole ground that the deed was void because the notary, in taking Mrs. Rhodes' acknowledgment, did not read or explain the instrument to her and the affirmance of the judgment by this court was based on that ground. It is not questioned that the issue of fraud raised by the pleadings was, under the evidence, one of fact and that the case should have been submitted to the jury unless the holding that the deed was void is correct.
I think our original opinion was in error in holding that appellees' pleadings in the trial court were sufficient, in the absence of a special exception, to challenge the validity of the acknowledgment of Mrs. Rhodes. As I construe the pleadings, plaintiffs sought cancellation of the deed on the sole ground of fraud in its procurement. The only reference to the failure of the notary to explain the deed is contained in that portion of the petition set out in the opinion. It is there charged, in substance, that defendant's agent, Garvey, procured the deed by fraudulently representing that it conveyed only a one-sixteenth royalty interest in the minerals whereas, as plaintiffs subsequently learned, it conveyed a one-half interest in fee in the minerals; that plaintiffs did not know of the effect of the deed and the fraud being practiced upon them by defendant's agent, Garvey, because they were not able to read or write and that "neither the notary who came toplaintiffs' house with defendant's said agent and who took plaintiff'sacknowledgment, nor anyone else read said instrument to plaintiffs normade any explanation thereof." Thus the petition charges fraud in the procurement of the instrument. And the reference to the failure of the notary to read or explain the instrument is merely incidental to the plea and amounts only to a plea of confession and avoidance on the fraud issue, relieving plaintiffs against the imputation of negligence in signing the deed. The plea applied equally to both plaintiffs. It nowhere charged fraud in the taking of the acknowledgment of Mrs. Rhodes or that the notary public was a party to any fraud in taking it or that defendant's agent, Garvey, was present and knew that the law was not complied with in the taking of it, or that the notary fraudulently made the certificate of *Page 416 acknowledgment, which is regular in form and purports full compliance with the law.
The act of a notary in taking acknowledgments, particularly that of a married woman, is quasi judicial. Johnson v. Taylor, 60 Tex. 360; Bexar Building Loan Ass'n v. Heady, 21 Tex. Civ. App. 154, 50 S.W. 1079,57 S.W. 583; Stewart v. Miller (Tex.Civ.App.) 271 S.W. 311. A notary is an officer under oath and bond as such for the faithful performance of his duties and his certificate is entitled to full faith and credit until properly impeached. So where, as in this case, a married woman, with her husband, has actually signed a deed and appeared before a notary for the purpose of acknowledging it, and the officer's certificate is regular in form, showing full compliance with the law, the certificate of acknowledgment cannot be impeached in the absence of pleadings directly attacking it and setting forth the specific grounds of invalidity. Hartley v. Frosh, 6 Tex. 208, 55 Am.Dec. 772; Oar et ux. v. Davis,105 Tex. 479, 151 S.W. 794; Cox v. Sinclair Gulf Oil Co. (Tex.Civ.App.)265 S.W. 196 (writ refused); Tippett v. Brooks, 95 Tex. 335, 67 S.W. 495, 512; Adkins-Polk Co. v. Rhodes (Tex.Com.App.) 24 S.W.2d 351; Sanger v. Calloway et ux. (Tex.Com.App.) 61 S.W.2d 988.
The Oar Case, supra, was a suit to cancel a deed in so far as it purported to convey a certain 100-acre tract of land which the plaintiffs alleged was erroneously included in the deed to their stepfather, Oar, through fraud practiced upon them by him. The deed was canceled upon a finding of fraud. On appeal, Oar assigned as error the overruling of his special exception which complained of the failure of the petition to allege that the notary was a party to the fraud. The Supreme Court held that the trial court was not in error in overruling the exception for the reason that plaintiff's petition did not in any manner attack the validity of the execution of the deed. The pleading which the court thus held to constitute an action for fraud only, and not an attack on the acknowledgment by the married women, who were plaintiffs, contained the following plea, as summarized in the opinion of the Court of Civil Appeals, 135 S.W. 710, 711:
"They did not agree to sell the defendant Oar any part of their interest in the 100 acres of land in controversy, and it was understood by all the parties that said 100 acres, which was known as the home place, was not to be conveyed. Defendant R. V. Oar agreed to have deeds drawn in accordance with the trade, and, he being the stepfather of the plaintiffs and having raised them from the time they were small children, they had confidence in him as a child has in a parent, and they trusted and relied upon him implicitly to have the deeds drawn in accordance with the contract. The defendant R. V. Oar, however, took advantage of the confidence which the plaintiffs reposed in him, and for the purpose of cheating and defrauding the plaintiffs out of the land in controversy caused the description of said land to be incorporated in the deeds, andprocured a notary to take the acknowledgments, and said notary did notfully explain the same to the plaintiffs, or to any of them, nor did heread any part of any of the deeds to any of the plaintiffs, or tell themthe land in controversy was included therein, and the plaintiffs did not know that said land, or any part thereof, was described in said deeds. With knowledge of all these facts defendant R. V. Oar accepted said deeds and had them recorded." (Italics ours.)
I cannot escape the conclusion that the pleading in the case before us is no more an attack upon the manner in which the deed was executed than was the pleading in the Oar Case, and, in holding that it was, I think we are in conflict with the Oar Case and the other authorities cited. The cases cited by appellee in support of the judgment are all cases where either the certificate of acknowledgment of the married woman was fatally defective on its face, or, where the certificate, being regular, was directly attacked by appropriate allegations. See Holland v. Votaw,62 Tex. Civ. App. 91, 130 S.W. 882; Stephenson v. Arceneaux (Tex.Civ.App.) 227 S.W. 729; Stephenson v. Mallett (Tex.Civ.App.)240 S.W. 633; Cockerell v. Callaham et ux. (Tex.Civ.App.) 257 S.W. 316; Gary v. McKinney (Tex.Civ.App.) 239 S.W. 283; McEntire et ux. v. Thomason (Tex.Civ.App.) 210 S.W. 563.
If the view above expressed is correct, it is immaterial that the defendant did not specially except to plaintiffs' petition. The petition was good as stating an action for fraud in procuring the deed, and there was no plea to except to attacking Mrs. Rhodes' acknowledgment. Nor is it material that proof of the notary's failure to read and explain the deed was introduced without objection from the defendant. The testimony was clearly admissible on the allegation of fraud and no valid objection could have been urged against its introduction.
It follows from the above that I think the motion for rehearing should be granted and the case remanded for a new trial. *Page 539