Summary
concluding notary's improper acknowledgment did not render deed void
Summary of this case from Morris v. Wells Fargo Bank, N.A.Opinion
No. 05-02-01236-CV.
Opinion Filed March 26, 2003.
Appeal from the Judicial District Court No. 101, Dallas County, Texas, Trial Court Cause No. 01-09748-E.
AFFIRM.
MEMORANDUM OPINION
This appeal concerns a dispute with respect to title to real property. Appellants Diana Dorsey Felder Fillmore, individually and as trustee of the Diana Dorsey Felder living trust and co-trustee of the Diana Gibbs Felder living trust, Liza Gibbs Felder, individually and as co-trustee of the Diana Gibbs Felder living trust, and Diana Dorsey Kennedy, individually, and Eliza Gibbs Fillmore Reola, individually appeal a summary judgment granted in favor of Pacific Mountain, L.L.C., An Ngoc Pham, individually, AP 1900 Pacific, Ltd., and AP 1900 Pacific G.P., Inc. In a single issue, appellants contend the trial court erred in granting appellees' motion for summary judgment. For the following reasons, we affirm the trial court's judgment.
Appellants sued appellees alleging claims for declaratory judgment, rescission, and trespass to try title. Appellants claims all involve a dispute concerning the ownership of property located at 1900 Pacific Avenue in Dallas. This property was sold to appellee An Ngoc Pham in January 1995. Over six years later, appellants filed suit seeking to rescind the sale or to declare it void. Specifically, appellants asserted the sale should be rescinded or declared void because the signature of one of the grantors, appellant Diana Fillmore, contained a forged acknowledgment. Specifically, Fillmore signed the deed, intentionally not having it acknowledged as instructed, believing that would necessitate her attending the closing. She wanted to be present at closing because she had various concerns about the sale. However, the deed was delivered to Fillmore's mother's attorney, who acknowledged the signature and forwarded it to the title company. Consequently, the sale on the property closed without Fillmore being present. It is undisputed that appellants became aware of the sale by mid-January 1995. They nevertheless waited more than six years before filing suit.
Appellees filed motions for summary judgment alleging, among other things, that all of appellants' claims were barred by limitations. The trial court granted the motion.
A person must bring suit to recover real property held by another in peaceable adverse possession under title or color of title not later than three years after the day the cause of action accrues. See Tex. Civ. Prac. Rem. Code Ann. § 16.024 (Vernon 2002). A person holding a void deed does not have title or color of title and is not entitled to the protection of the three-year statute of limitations. See Field Measurement Serv. Inc. v. Ives., 609 S.W.2d 615, 620-21 (Tex.Civ.App.-Corpus Christi 1980, writ ref'd n.r.e.). A forged deed is void. Beasley v. Burns, 7 S.W.3d 768, (Tex.App.-Texarkana 1999, pet. denied); Dyson Descendant Corp. v. Sonat Exploration Co., 861 S.W.2d 942, 947 (Tex.App.-Houston [1st Dist.] 1993, no writ).
In this appeal, appellants assert appellees could not rely on the three year statute of limitations because the deed upon which they claim title or color of title was forged and thus void. To show the deed was forged, they rely on evidence that the signature of one of the grantors, although genuine, was not properly acknowledged. Thus, the question presented is whether an improper acknowledgment of a genuine signature constitutes a forgery rendering a deed void.
In Nobles v. Marcus, 533 S.W.2d 923 (Tex. 1976), the Texas Supreme Court held that to be a forgery, the signing must be by one who purports to act as another. Id. In this case, it is undisputed that Fillmore signed the deed. Although the deed was improperly acknowledged, an improper acknowledgment does not render a deed void. See Haile v. Holtzclaw, 414 S.W.2d 916, 928 (Tex. 1967). We conclude the deed was not void and therefore appellants were required to file suit within the period of limitations.
In reaching this conclusion, we reject appellants' reliance on Breitling v. Chester, 88 Tex. 586, 32 S.W. 527 (1895) and Sheffield v. State, 371 S.W.2d 49 (Tex.Crim.App. 1962). In Chester, the issue was whether a fraudulently induced acknowledgment was effective to convey a married woman's separate property. See Chester, 88 Tex. at 588-89, 32 S.W. at 528. The validity of the acknowledgment was significant because, at that time, a married woman could not convey her separate property without a proper acknowledgment. See Veeder v. Gilmer, 103 Tex. 458, 461, 129 S.W. 595, 598 (Tex. 1910). However, as noted above, under Texas law, deeds are valid as between grantor and grantee even without a valid acknowledgment. See Haile, 414 S.W.2d at 928. Thus, Chesteris inapplicable.
In Sheffield v. State, the court of criminal appeals stated that a person who falsely certifies an acknowledgment is guilty of forgery. Sheffield, 371 S.W.2d at 52. However, Sheffield was not a case concerning a deed and did not hold any deed itself was forged, much less void. Moreover, that case was decided under a penal statute that expressly provided that a person who falsely certified an acknowledgment was guilty of forgery. Id. at 52. Thus, Sheffield is also inapplicable.
We conclude the deed upon which appellees' claim title was not void. Therefore, appellants were required to file suit within three years after the causes of action accrued. Appellants did not file suit until over six years after accrual. We resolve the sole issue against appellants and affirm the trial court's judgment.