¶1I am unable to concur in the majority holding that appellee, Mrs. Downey, is not estopped to deny the validity of her deed, The undisputed facts show that when Mrs. Downey signed the deed she did so with full knowledge of its contents and that it purported to convey her interest in the property involved. The record reflects that she is possessed of considerable property and is a business woman of experience. When she signed the deed she knew every fact which an explanation of it by the notary could have made known to her. She signed it freely and voluntarily. The record leaves no doubt that she would have personally appeared before the notary except for the inconvenience of having to travel a few miles to his office. She, not the husband, made the arrangement with the notary to certify her acknowledgment without her personal appearance before him. The husband was merely used as a convenient messenger to carry the deed, with the signature of Mrs. Downey and the form of her separate acknowledgment already attached, to the notary for execution Mrs. Downey knew of course that the notary would execute the form of acknowledgment and that the deed would be delivered to the vendee purporting regularity in every respect. She knew that persons dealing with the property in Texas, far from her home in Maryland, would have no opportunity to learn of the falsity of the notary's certificate and would have no reason to make inquiry but instead would rely upon the truth of the recitals in it. Through her acts the deed was placed in the process of delivery, and was delivered, to the vendee who accepted it without knowledge of any irregularity or infirmity in the acknowledgment. Thus, it seems to me she committed "positive affirmative acts" which in law amounted to fraud. Not only was her signing the deed a "positive act" but she was party to the fraudulent execution of the certificate by the notary who acted not merely with her knowledge but at her instance and request. The deed was placed of record and the Humble Oil Refining Company, acting in good faith by virtue of the lease from the vendee, expended large sums of money in the development of the property for oil. It was only after the property, which was of modest value only at the time her deed was made, had been made quite valuable by the good faith efforts and expenditures of others that Mrs. Downey appeared upon the scene in Texas to assert the invalidity of her deed. *810 In view of these undisputed facts, it seems to me the judgment in this case, which destroys the deed which Mrs. Downey made and vests her with title to the property which she purported to convey, and which her vendee, and those claiming under her, in good faith believed she had conveyed, is so manifestly inequitable and unjust that it should not be permitted to stand.
¶2It is apparent from the opinion of Chief Justice WALKER that the majority are of the view that Texas court decisions leave no alternative except an affirmance of this judgment. As before stated, I do not subscribe to that view. The majority recognize the rule to be that a married woman may be estopped to deny the validity of her deed, regular in form, where she has been guilty of some "intentional, affirmative act of fraud." But they hold to the view, apparently, that she committed no "affirmative fraud" because she did not sign the deed with an actual intent to deceive. As I see it, the fact that Mrs. Downey did not act from bad motive is not controlling. I accept as true their conclusion that she was not guilty of any intentional fraud or wrongdoing when she executed the deed in 1929. But even so in law what she did amounted to a legal fraud sufficient to estop her from denying the validity of her deed. Guaranty Bond State Bank v. Kelley, Tex.Com.App., 13 S.W.2d 69, 71, and authorities cited. In the cited case the rule is thus stated: "That fraud which will estop a married woman is not necessarily intentional fraud, but rather any intentional affirmative act of hers which operates as a legal fraud, whether so intended or not."
¶3Clearly, appellants have acted upon what Mrs. Downey did to their injury. They were as effectively deceived as if her motive had been bad. Her conduct was not merely passive, it was active. And she should be held accountable for the plainly foreseeable results of it. Otherwise she, an intelligent, experienced, business woman, will be permitted to repudiate a deed which she freely and voluntarily made to the serious damage and wrong of the appellants. Equity should not permit her to do so.
¶4I have expressed above by reasons for the view that Mrs. Downey is estopped under principles of equity repeatedly recognized by the decisions of our courts. But even if I should be wrong and the majority right in the interpretation placed on existing rules of decision, then this case affords a striking example of the necessity for a re-examination of the decision made law. For if Mrs. Downey may repudiate her deed and recover the property in accordance with the judgment in this case, then many land titles grounded upon conveyances by married women are open to similar attack. No prudent title examiner can afford to pass a title containing a married woman's deed in the chain without making personal inquiry to determine whether or not she in fact appeared before the notary as certified by him in his certificate of acknowledgment. This case also suggests the desirability that the matter be called to the attention of the Legislature with a view that the married woman's separate acknowledgment statute be repealed altogether.
¶5Because of the importance of this question, the writer will indulge the freedom of the "dissenter" to write freely upon the subject. In doing so he may be rushing into a wordy discussion of a question about which wiser judges have written sparingly or felt bound by judicial precedent and decorum to discuss with more restraint and caution. But since the end sought is to direct attention to an archaic statute and to certain unsound principles of decision made law which have made of it a convenient vehicle of fraud, the attempt would seem to be justified.
¶6The Texas married woman's separate acknowledgment statute (Vernon's Ann.Civ.St. Art. 6605) should be repealed. It is a relic of the dark ages, brought into the Texas statute in an early day and if it ever had any useful place in our statutes its retention can no longer be justified in reason and common sense.
¶7In 1922 the late D. Edward Greer of the Houston Bar wrote an interesting article for the Texas Law Review on this subject. See "A Legal Anachronism: The Married Woman's Separate Acknowledgment of Deeds." I T. L. R. 407. In that scholarly article, Judge Greer traced it to a statute or rule of court Modus Levandi Fines adopted in the eighteenth year of Edward I, about the year 1290. It was adopted into the statutes of Texas in 1841, and with an amendment in 1846 is the statute we have today. It will be seen that it arose in England at a time when the common law vested the husband with absolute title to all personal property of the wife and a considerable interest in, and complete dominion over, the separate real estate. Also, the state of society was such that the husband in fact *811 exerted dominion over the wife to the extent that the law recognized his right to administer corporal punishment to her. According to Blackstone, the humane judges of the period soon came to the relief of the wife to the extent of announcing a rule that the husband should not be permitted to beat her with a whip larger than could be passed through her wedding ring. But even so the wife was usually uneducated and little more than a vassal.
¶8Judge Greer, in his article, questioned whether there was ever any reason for the adoption of the married woman's separate acknowledgment statute in Texas. But in justice to the Founding Fathers it should be remembered that in the 1840's it was not the general custom in Texas for women to be well educated. Neither did they engage in business or the professions. Quite likely the statute was originally aimed mainly at preserving the homestead to the wife and children. That the early Texas lawmakers were solicitous in promoting home ownership and in protecting the family against improvident alienation of the homestead is clearly evidenced by the fact that they gave to Texas, and to the world, the first comprehensive homestead law in recorded history. Considering the state of society and position of the wife in the home under pioneer conditions, a pretty good argument could be made in support of the statute when it was first enacted. But regardless of whether or not it then served a useful purpose, it has long since ceased to have any useful or legitimate place in our statute book.
¶9But the statute itself is not nearly so bad as the application given it by court decisions construing it. Results such as we see in this case are the product of court made law, rather than the statute itself. It would be unjust to the pioneer framers of the statute to assume that they ever intended that it should do more than protect the wife from alienation of her property or homestead by duress, fraud or deception. Neither they nor the great jurists who first began to construe and apply it could have foreseen that the precedent bound courts of a later day would so construe it as to make of it an instrument of positive fraud and oppression. A reading of the succession of opinions construing the statute through the years reveals an interesting example of how our precedent system tends to congeal "dicta" and "doctrines" into inflexible rules of decision which do not yield to common sense adaptation and application to the attainment of justice under changed conditions. Perhaps the main root of the trouble is to be found in a decision when upon "bad facts" it was held that in the case of a married woman's deed her privy acknowledgment and not her signature works the conveyance. So, if her acknowledgment be not taken in substantial compliance with the statute there is no conveyance — the deed is void — and hence there can be no innocent purchaser under it. It soon became necessary to inject various "doctrines" and "distinctions" in an effort to mitigate the harsh effect of the rigid application of that principle. That system has led to the kind of results we see in the instant case.
¶10I have not cited the decisions illustrative of this process because in doing so I might seem to criticize the great jurist who wrote some of those decisions. I have no such thought in mind. The difficulty arose by gradual growth of "doctrines" and "principles," mostly dicta pronounced on "bad facts." It should be said in justice to the opinion writers who wrote many of those decisions that they had in mind their obligation to do justice in the particular case, and hence indulged the judicial prerogative of using dicta with no thought that their successors would garner the various dicta and "doctrines" and weld them into a rigid rule of decision. But such has been the result, and it has come about by a process of legal reasoning, based on prior decisions, which in the days of King Edward I would justify the husband beating his wife with a cat-o-nine-tails on the theory that that instrument could be passed through the wedding ring one tail at a time.
¶11But regardless of how the present rule of decision came about, we have a striking example of the harmful effects of it in the case before us. A reading of the court decisions will reveal many more such examples in recent years. The married woman's separate acknowledgment statute as construed and applied by our courts violates all rules of common sense as well as justice. It assumes that when an intelligent woman gets married she thereby dooms herself to a state of imbecility for the duration. This theory is all the more remarkable when we reflect that it also assumes that she is instantly restored to complete possession of her faculties and powers of discretion the moment her "disability" is planted beneath the clods of the silent *812 valley, or the merciful intervention of the divorce court frees her from her "oppressor." And once so freed she can execute conveyances and make contracts even as other people until perchance she joins herself to another husband, whereupon she suffers a total mental relapse.
¶12The whole thing is, of course, utterly ridiculous. Most other states that originally had such a law have long since repealed it. And in other states which retain it the courts in recent years have liberally construed it so as to greatly mitigate its effect in promoting fraud. In 1 Am.Jur. p. 382, Sec. 158, it is said: "The peculiarities of the law of acknowledgments which have existed with respect to married women are rapidly disappearing. Under the modern rule no distinction is made between the wife and any other person, either in the manner of execution or the acknowledgment of a deed conveying real estate, or other sort of instrument. The judicial attitude toward acknowledgments of married women, likewise, has kept pace with social evolution. Formerly, the courts were most zealous to protect the wife from the supposed dishonesty and corruption of the husband, and the strictest compliance with the statutory requirements was exacted. To-day the judges view the acknowledgment of the wife not very differently from that of the feme sole. Therefore, the earlier cases holding married women's acknowledgments to be invalid should not be taken literally, but an allowance should be made for this change in judicial policy."
¶13The text writer should have said that allowance should be made for a liberal change in judicial policy in every state except Texas. If there has been the slightest liberalizing of Texas court decisions construing this statute, it is so little as to be hardly visible. We are still construing the statute as though we were completely oblivious of changed conditions in this day of education and enlightenment, when our women are universally recognized as being just as capable of protecting their rights as are the men. The existence of the married woman's separate acknowledgment statute is an insult to the intelligent women of Texas. (It is no less an insult to the husbands.) It ought to be repealed at the first opportunity.
¶14But I also believe that the courts should not wait for the Legislature to act. Much of the harmful effect of the statute can be removed by court decision, giving it reasonable, common sense interpretation. It seems to me it should be held that when a married woman executes a deed, purporting regularity and validity on its face, the deed is not void by reason of her failure to be privily examined by the notary, but only voidable upon a showing that she executed the instrument through duress, fraud or deception. But even if it is not desirable to go that far, it should be held that where a married woman, as in the present case, freely executes a deed, with knowledge of its contents, and without duress or deception, induces or permits a notary to attach a proper certificate of acknowledgment thereto, she should be estopped to deny the validity of the deed as against all persons purchasing through or under it without knowledge that the acknowledgment was not properly taken.
¶15It follows that I think the judgment in this case should be reversed and rendered.