Opinions Delivered by the Supreme Court

M. E. Eustis et al. vs. The City of Henrietta, certificate of dissent in a case from Clay county, Second district. Dismissed. As the questions are now presented, we are of the opinion that we should decline to exercise the jurisdiction of determining them. We apprehend that the statute authorizing certificates of dissent from the courts of civil appeals to this court contemplates that in certifying the point or points of dissent, the court shall state distinctly the very question or questions upon which the members of the court are not in accord. Article 1041 of the Revised Statutes requires the clerk of the court of civil appeals to send up 'a certified copy of the conclusions of law and fact found by the court and the questions of law upon which there is a division.' This may be construed to mean that the clerk is to send up the questions as stated by him, but it is obvious that it was not intended to devolve so important a function upon the clerk. We think the provision should be construed as if it read: 'A certified copy of the conclusions of law and fact as found by the court and of the questions of law upon which there is a division' — meaning a certified copy of the questions of law. This implies that the questions are to be formulated; and hence it is to be inferred that the questions should be distinctly stated by the court.

An order requiring the certification of the questions, provided it states the questions, is practically a certificate in substantial conformity to the statute. But we think, whatever form be resorted to, the order or certificate as the case may be, should set forth separately and in detail the points upon which the members of the court are divided in opinion. There is in our opinion no difference in this respect between certifying a question under article 1043, R.S., and certifying a dissent under articles 1040, 1041 and 1042, R.S. But the certificate under article 1043 must be made by the chief justice; while under the articles last cited the certificate is to be made by the court. A different rule was applied in case of dissent, for the reason probably, that the chief justice might be the dissenting judge.

We do not feel that we are authorized, at least in a complicated case like this, to ascertain by contrasting the two opinions the questions we are called upon to determine. For the failure of the court of civil appeals to state the questions, the certificate will be dismissed. Because the certificate was demanded in this case by one of the parties to the suit, we think the court ought again to certify the question so as to conform to the statute. Opinion by Gaines, C. J.

Texas and Pacific Railway Co. vs. C. C. Staggs et al.; certificate of dissent in a case from Tarrant county, Second district. Dismissed. The certificate of dissent in this case is subject to the same objections as that passed upon this day in the case of Eustis vs. City of Henrietta. It is, therefore, dismissed. Opinion by Gaines, C. J.

J. H. Classen vs. Henry Elmendorf et al.; motion for rehearing in a case from Bexar county, Fourth district. Overruled. This case came to us on a certificate of dissent. The court of civil appeals held that there was error in the judgment of the trial court, but ruled also that the appellees should be allowed ten days within which to file a remittitur for certain damages recovered in the court below; that in that event the judgment should be reformed and affirmed; but that otherwise it should be reversed and remanded. To this judgment there was a dissent. No remittitur having been filed, judgment was entered by the court of civil appeals reversing and remanding the case. Appellee's motion for a rehearing being overruled, the court at their instance certified the point of dissent to this court for our decision. On a former day we decided the question against the appellees and ordered the opinion to be certified to the court of civil appeals. A motion is now filed for a rehearing in this court, in which we are asked to permit the appellees to remit the sum specified in the opinion of the court of civil appeals and affirm the judgment of the trial court.

Upon a certificate of dissent, the jurisdiction of this court is restricted to a determination of the very points upon which the judges of the court of civil appeals have disagreed. (Articles 1070 and 1040, Revised Statutes.) We have no power to either modify, reverse or affirm the judgment of the trial court or that of the court of civil appeals in such a case. Overruled. Opinion by Gaines, C. J.

Nora Daniels et al. vs. Rowena M. Mason: suit to remove cloud from title, from Tarrant county, Second district. Reversed and remanded. James Coffey, common source of title, on November 11, 1881, conveyed to Nora Daniels, the then wife of Thomas J. Daniels, the land in controversy, the deed containing no expression indicating that the property was conveyed to her as her separate estate. Nora Daniels, on August 2, 1882, conveyed said land by warranty deed to John T. Mason, who paid a valuable consideration therefor, said Mason purchasing in good faith, believing that Nora Daniels had a right to convey said land. Said deed being acknowledged in the ordinary form required by the statutes of Texas for a single person or a feme sole, there being nothing in the deed to indicate whether Nora Daniels was single or married beyond the fact that the acknowledgment was as above indicated, and her husband did not join her in its execution. John T. Mason, in 1884, conveyed the land to Rowena M. Mason by general warranty deed for a valuable consideration. The latter purchased the land in good faith, without notice of the fact of coverture of Nora Daniels. In 1892, Nora Daniels [...] died, leaving surviving her a husband and three minor children.

All of the deeds mentioned above were duly recorded in the county where the land was situated. There was no evidence of any deception or misrepresentation on the part of Nora Daniels in executing said deed other than such as might be deduced from the fact of its execution and delivery through a third person to whom the money was paid. This suit was brought by Rowena M. Mason against the husband and children of Nora Daniels to remove the cloud supposed to be cast upon plaintiff's title by the assertion of a claim to said land through said deed to Nora Daniels upon the supposition that the deed executed by her did not divest her of title. Defendants answered by a special plea and prayed that their title be decreed perfect. There was a judgment for plaintiff in the trial court, which was affirmed on appeal to the court of civil appeals.

First: We are of the opinion that the trial court erred in its first conclusion of law to the effect that the heirs of Nora Daniels were estopped. She did nothing more than execute and deliver the deed and probably receive the purchase money. If the mere execution of a deed and the receipt of the purchase money constitute an estoppel, then in all cases, though a married woman has no capacity to convey by a deed wherein she is not joined by her husband, nevertheless the deed and its subsequent recording by the purchaser would pass title by estoppel. This would virtually remove the disability of coverture. Such a rule has never been recognized in this state.

Second: We have many times held that a bona fide purchaser for value, from the holder of the legal title who [...]