Crabb v. Bell, (No. 1087.)

• Decision Date: 25 March 1920
• Docket Number: (No. 1087.)
• Citation: 220 S.W. 623
• Parties: CRABB et ux. v. BELL et al.
• Court: Texas Court of Appeals

220 S.W. 623

CRABB et ux. v. BELL et al.

(No. 1087.)

Court of Civil Appeals of Texas. El Paso.

March 25, 1920.

Rehearing Denied April 22, 1920.

Appeal from District Court, Eastland County; Joe Burkett, Judge.

Suit by R. R. Bell and another against W. W. Crabb and wife. Decree for plaintiffs, and defendants appeal. Reversed and remanded.

J. R. Stubblefield and R. L. Rust, both of Eastland, and G. W. Dunaway, of Ranger, for appellants.

Stuart, Bell & Moore, of Gainesville, for appellees.

HIGGINS, J.

Appellees, Bell and Moore, brought this suit against appellants, Crabb and wife, to compel specific performance of a contract made by appellants to convey a one-half interest in the oil, gas, and other minerals in and under 93½ acres of land in Eastland county.

It was alleged in the petition that on July 9, 1918, defendants entered into a written contract whereby, in consideration of the sum of $10,000 to be paid by plaintiffs, said defendants obligated themselves to execute and deliver to plaintiffs a deed conveying one-half of said oil, gas, and other minerals. The land was described by metes and bounds and designated as the tract then occupied by defendants. It was further alleged that on said date defendants executed a deed conveying said interest and the deed and contract was placed in bank, the deed to be held by the bank until the conditions of the contract had been performed; that the delivery of the deed to the bank was in escrow, and the deed was not to be delivered to the plaintiffs until plaintiffs had passed upon and approved the title to the land and paid the stipulated consideration of $10,000; that the defendants had refused to comply with their contract, and judgment for specific performance of the contract and delivery of the deed was sought.

Upon trial a peremptory instruction in plaintiffs' favor was given, in accordance wherewith verdict was returned and judgment rendered.

Complaint is made of the court's charge, the proposition being advanced that the land in question was the homestead of defendants and specific performance of an executory contract for the conveyance of a homestead cannot be enforced against the wife. The pleadings and evidence of appellants present the homestead issue, and the question thus arises as to the right of the appellees to the relief sought if the land involved was appellants' homestead. It is no longer an open question in this state that an executory contract to convey the homestead cannot be specifically enforced against the wife. Jones v. Goff, 63 Tex. 248; Blakeley v. Kanaman, 107 Tex. 206, 175 S. W. 674; McEntire v. Thomason, 210 S. W. 563; De West v. Barthelow, 136 S. W. 86.

It is also well settled that a conveyance of an interest in the oil, gas, and minerals in and under a tract of land is a conveyance of an interest in the land. McEntire v. Thomason, supra; Texas Co. v. Daugherty, 107 Tex. 226, 176 S. W. 717, L. R. A. 1917F, 989.

The question now arises as to whether the transaction in question constitutes an executory contract as distinguished from an executed one. A consideration of well-settled rules of law applicable to deeds delivered in escrow leads to the conclusion that it is executory for the reason that a deed delivered in escrow has no effect as a deed and no title passes to the grantee until the condition of the escrow agreement has been performed or fulfilled. The rule is thus stated in 10 R. C. L. 627:

"Where an instrument has been delivered to a depositary as a writing or escrow of the grantor, it does not become a deed, and no legal title or estate passes, until the condition has been performed or the event has happened upon which it is to be delivered to the grantee, or until the delivery by the depositary to the grantee."

In 1 Devlin on Real Estate (3d Ed.) § 322, speaking of deeds placed in escrow, it is said:

"Until the condition has been performed and the deed delivered over the title does not pass but remains in the grantor."

To the same effect, see 3 Washburn on Real Property (6th Ed.) §§ 2179, 2180; 1 Warvelle on Vendors and Purchasers (2d Ed.) § 506; 16 Cyc. 576-588; 6 Amer. & Eng. Encyc. of Law (1st Ed.) 867.

The rule is also well settled that equity will enforce the delivery of a deed placed in escrow where the condition has been fulfilled, but this phase of the...