# Hoover v. Wukasch > Texas Supreme Court · January 14, 1953 · 152 Tex. 111 URL: https://www.frixlaw.com/law-library/cases/9642382 ## Case - **Full name:** R. C. Hoover v. C. G. Wukasch Et Al. - **Court:** Texas Supreme Court - **Decided:** January 14, 1953 - **Citations:** 152 Tex. 111; 254 S.W.2d 507; 1953 Tex. LEXIS 427 - **Precedential status:** Published - **Opinion:** Dissent by Smith - **Judges:** Calvert, Smith - **Cited by:** 33 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9642382 ## Opinion text Mr. Justice Smith, joined by Justices Brewster and Griffin, dissenting. The majority opinion admits that under the provisions of Article 1288, Revised Civil Statutes, 1925, the instrument in *119 volved in this suit could not and did not operate as a valid conveyance. This admission renders it unnecessary to discuss authorities or reasons upholding the contention of petitioner that the instrument is a conveyance. The mandatory provisions of Article 1288 cannot be rendered a nullity by taking the position as the majority has in this case wherein it holds that Article 1301 is applicable. The majority opinion has nullified the mandatory provisions of Article 1288 by holding that the instrument is enforceable as a contract to lease by virtue of Article 1301, Revised Statutes, 1925. With this I cannot agree. Nothing could be more positive than Article 1288, which provides that a conveyance must be in writing and signed by the party conveying the interest in the land, or by an agent authorized in writing to do so. I agree with the majority opinion wherein it states: “Under this statute (Art. 1301) it has been held that an instrument having all the essential elements of a conveyance but failing as such because it was neither acknowledged by the grantor nor attested by subscribing witnesses would be enforced as a contract to convey,” but I contend that the instrument involved does not contain all the essential elements of a conveyance, in that it was not signed by the owners, Mr. and Mrs. Wukasch, and was only signed by the agent, Walter Wukasch, who was without written authority to do so. The only Article applicable is 1288. The case of Young v. Magee, 196 S.W. 2d 203 , cited by the majority, says that: “Art. 1301 is the last article in the comprehensive Title 31 on Conveyances, * * *. Various and sundry articles of the Title deal with the form and requisites of deeds, setting out a suggested type of deed; other articles relate to conveyances of the homestead and of the separate estate of the wife. Manifestly intended by the legislature as a saving clávese in the event some technical provision of the statutes with reference to conveyances should be omitted or overlooked in a deed, it provides that if the instrument intended as a conveyance should fail, ‘either in whole or in part’, to take effect as a conveyance, still it shall be valid as a contract upon which a conveyance may be enforced as far as the rules of law will permit.” I do not think the Legislature intended to classify the mandatory provisions of Article 1288 as being “technical provisions.” The Court did not so hold in Young v. Magee, supra, for the reason that it was not passing upon a factual situation such *120 as' we have here. Evidently, if the Court had been dealing with such a situation, it would have held the instrument unenforceable because to do otherwise would be in direct conflict with the positive provisions of Article 1288. This Court granted a writ of error in the case of Young v. Magee, supra, and affirmed the judgment of the Court of Civil Appeals. The deed involved in that case was signed by one John W. Hoff, but his name did not appear in the body of the deed. The Court, speaking through Mr. Justice Hickman, stated that “In order to determine what effect, if any, should be given to the Hoff deed, it is necessary that we first decide whether the property was the separate property of Mrs. Hoff or the community property of her and her husband.” The Court held that the property was the community property of the Hoffs, and, after pointing out that the deed had been signed by the parties and that the only defect was the fact that the name of Mr. Hoff did not appear in the body of the deed, applied the rule announced in Ruling Case Law, Vol. 27, p. 316, § 8, which states: “Frequently an instrument in the form of a conveyance is ineffectual to operate as such by reason of some technicality of law. In such instances courts of equity have not hesitated to treat the agreement as a contract to convey if the equities of the case so require. Thus a deed based on a valuable consideration but ineffectual to operate as a conveyance is treated in equity as a contract to convey.” In the case at bar we have an entirely different factual background. The instrument involved here was not signed by the party disposing of the interest in the land. Nor was it signed by an agent authorized in writing to do so. It has been argued that “Article 1301 means what it says or it doesn’t.” I say that Article 1288 means what it says audits effect cannot and should not be destroyed by giving effect to Article 1301, which was manifestly enacted as a “saving clause” in order to do equity where some technical defect appeared in the instrument. Article 1288 was enacted by the Legislature in 1840, and Article 1301 apparently was not enacted until sometime between 1873 and 1879. Most assuredly this later act had a purpose, but I contend that its purpose and only purpose was to take care of such a situation as appeared in the case of Young v. Magee, supra, and many other Texas cases. All the Texas cases, applying Article 1301, in my opinion, are those dealing with instruments signed by the .owners and containing all the *121 essential elements of a conveyance and would have operated as a conveyance but for technical defects. (Emphasis added) Not one Texas case has passed on the question involved here. The majority opinion cites the case of Murphey v. Brown, 12 Ariz. 268 , 100 Pac. 801 , which seems to support the conclusion that an instrument which does not conform to the provisions of Article 1288, may, nevertheless, be enforceable as a contract to lease. While it is true, the State of Arizona patterned its statutes on the subject after the Texas statutes, I think the conclusion reached by the Arizona court is clearly wrong and should not be followed. The opinion quotes Paragraph 721 (same as Article 1288) and Paragraph 726 (identical with our Article 1301) then makes the holding as stated in the majority opinion. Then follows the statement: “In adopting the quoted paragraphs from the statutes of Texas in 1887, we took them already so interpreted,” citing Huffman v. Cartwright, 44 Texas 296 . This case does hold that “written authority is not necessary to enable an agent to bind his principal in an executory contract for the sale of lands,” but following such holding, the Court poses a question, as follows: “Can Cartwright’s estate be bound by such an instrument?” Then follows the following significant statement: “The case of Rogers v. Bracken, 15 Texas 564 , holds that such a title bond may be enforced against the principal, although not named or alluded to, but it is to be observed that the agent in that case acted under a full power of attorney, duly recorded, and the courts say that the purchaser will be presumed to purchase under the influence of this record notice. Without any intention of questioning the authority of the case just cited, it is proper to remark that it does not extend to a case where the agent acted without written and recorded authority.” (Emphasis added) In view of the fact that this question had not been discussed or briefed by either party, the court refrained from deciding the question, but invited its thorough examination, should it arise in another trial. The language used by the court strongly indicates that it was the opinion of the court that an instrument not signed by the owner of land, or by an agent duly authorized in writing to do so, could not be held to be enforceable as a contract to convey, and that Article 1301 would have no application. I am of the opinion that the case of Wineburgh v. Toledo Corporation, 125 Ohio St. 219 , 181 N.E. 20 , 82 A.L.R. 1315 , and the annotation thereunder, support the contentions of petitioner *122 that the instrument here involved would not be enforceable as a contract to lease. Reference is here made to Chapter 5, Sections 12210 and 12211, Throckmorton’s Ohio Code, Annotated, 1940, and Article 5867, R.S. State of Ohio. It seems to me that these sections and article of the Ohio statutes had the same purpose as Article 1301. Since the lease was a conveyance, Article 1288, the statute governing conveyances, should apply. And Article 3995, which is a part of Title 65, relating to “Frauds and Fraudulent Conveyances”, should not apply. The petitioner has paid all rentals due at the time he vacated the premises. The defective lease involved in this case created a tenancy in the lease from month to month; and, “where the tenant occupying under such lease vacates the premises at the end of a month, after fully prepaying the rentals then due, he is not liable to the lessor for the rental installments accruing after such vacation, in an action at law based upon such defectively executed lease.” From what has been said it follows that the instrument made the basis of this suit is not enforceable against the petitioner as a valid and binding contract, and the trial court correctly granted petitioner’s motion for summary judgment. My view on the point discussed renders it unnecessary to pass upon the question involvin'g the sufficiency of the description of the property mentioned in the lease. The judgment of the Court of Civil Appeals should be reversed and that of the Trial Court affirmed. Opinion delivered: January 14, 1953. Associate Justices Brewster and Griffin join in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642382. Public record. Not legal advice.