Henry v. Phillips

• Decision Date: 11 December 1912
• Citation: 151 S.W. 533
• Parties: HENRY et al. v. PHILLIPS.
• Court: Texas Supreme Court

151 S.W. 533

HENRY et al. v. PHILLIPS.

Supreme Court of Texas.

December 11, 1912.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by W. H. Phillips, administrator, against Pat Henry and others. There was a judgment of the Court of Civil Appeals (135 S. W. 382) reversing a judgment for defendants and rendering a judgment for plaintiff, and defendants bring error. Judgment of Court of Civil Appeals reversed, and judgment of trial court affirmed.

Thos. P. Steger, of Bonham, J. G. McGrady, of Ft. Worth, and Mark McMahon, of Bonham, for plaintiff in error. Richard B. Semple and S. F. Leslie, both of Bonham, for defendant in error.

DIBRELL, J.

This suit was begun in the district court of Fannin county on January 26, 1907, by the administrator of T. J. Patillo, deceased, against Mrs. Mary Henry and Josephine Ridings and their husbands, D. P. Henry and C. C. Ridings, to cancel a certain deed of date May 9, 1905, executed by the said Patillo to Mrs. Mary Henry and Josephine Kearnes, now Ridings, and conveying about 81 acres of land situate in Fannin county, with full and particular description thereof by references to the survey and metes and bounds, and to quiet said estate in its title to and possession of said premises.

Plaintiff alleged that on May 9, 1905, T. J. Patillo signed and executed the deed in question to Mrs. Mary Henry and Josephine Kearnes, now Ridings, purporting to convey the land therein described, and retained possession of the deed until his death on the 13th day of September, 1906; that prior to his death Patillo, being undecided whether or not he would deliver the deed to the grantees therein, deposited the deed for safe-keeping with the First National Bank of Bells, Grayson county, where it remained undelivered to said grantees until after the death of said Patillo. Defendants in substance alleged that the grantor in said deed, T. J. Patillo, bore great love and affection for the grantees in said deed, who were the daughters and only children of his deceased wife, and felt under obligations to them, which he often expressed, and he intended to convey to them certain tracts of land; that pursuant to such intention Patillo on May 9, 1905, caused the deed in question to be written, signed, and executed, same conveying the land therein described to the defendants, Mrs. Mary Henry and Josephine Kearnes, now Ridings, and about June 1, 1905, delivered said deed in person to one S. D. Simpson, cashier of the First National Bank of Bells, Texas, and instructed said Simpson to hold the deed until Patillo's death, and then deliver it to Josephine Kearnes and Mary Henry; that the deed so executed and delivered to Simpson in escrow was an absolute and unconditional deed, and conveyed the property therein described to the grantees named. Defendants further allege that being the owners of the land in controversy, upon the death of their grantor, T. J. Patillo, which occurred on September 13, 1906, they are entitled to the rents arising out of the use of said land, and claim the sum of $700 as accrued rents under appropriate allegations. The cause was tried with a jury, the verdict being for defendants against plaintiff upon the issue of the delivery of the deed, and upon the issue of rents the sum of $369. Upon the second appeal of the case the judgment of the lower court was reversed and rendered by the Court of Civil Appeals of the Sixth District in favor of the administrator of T. J. Patillo's estate.

The case as it comes to this court presents but one question of law for our decision. The trial, so far as is disclosed by the record, was had without any exceptions to the court's ruling, and, so far as we are able to judge, there is no conflicting evidence upon any issue of fact in the case. The question of law is whether or not T. J. Patillo after he executed the deed to Mrs. Mary Henry and Josephine Kearnes to the land therein described and deposited it in the bank for safe-keeping, and for delivery to the grantees after his death, thereby parted with his title to said land.

The Court of Civil Appeals makes the following findings of fact, which for the purpose of clearness we desire to quote: "The deed was dated May 9, 1905, and its execution was duly acknowledged by Patillo on the same day. It was as follows: `Know all men by these presents that I, T. J. Patillo, county of Fannin, State of Texas, for and in consideration of the sum of $25.00 to me in hand paid by Mrs. Mary Henry, wife of Pat Henry, and Miss Josephine Kearnes, the receipt of which is hereby acknowledged, and the further consideration of the love and affection I have for the said Mary Henry and the said Josephine Kearnes, they being my stepdaughters, have granted, sold and conveyed, and by these presents do grant, sell and convey unto the said Mrs. Mary Henry and Miss Josephine Kearnes, of the county of Fannin, State of Texas, all that certain tract or parcel of land situated on the waters of Caney creek in Fannin county about ten miles Northwest of Bonham (and further describing the land in controversy); Mrs. Mary Henry is to have an undivided two-thirds in the whole of the above described land and Miss Josephine Kearnes the other one-third undivided interest.' Some time in the spring of 1905, a sealed envelope, afterwards found to contain the deed, with the words, `After ten days return to Pat Henry, County Clerk, Fannin County, Bonham, Texas,' printed on the left hand top thereof, and indorsed in Patillo's handwriting, `T. J. Patillo or Mary Henry and Miss Josephine Kearnes,' was delivered by Patillo to Simpson, then the cashier of a bank at Bells, Tex., Simpson was the only witness who testified as to the circumstances accompanying the delivery to him of the deed. His testimony, so far as material, was as follows: `I never saw the deed from T. J. Patillo to Mrs. Mary Henry and Miss Joe Kearnes, but, as I remember, Mr. T. J. Patillo handed me a large envelope, saying that it contained a deed of some land to Miss Joe Kearnes and Mrs. Pat Henry. I never delivered the deed to anybody. I was acquainted with the said T. J. Patillo. I received the envelope in which Mr. T. J. Patillo told me there was a deed from him, the said Patillo, as cashier of the bank, for safe-keeping. I received the envelope from Mr. T. J. Patillo, in which he said there was a deed, some time in the spring of 1905, but I do not remember the exact date. I was at that time cashier of the First National Bank at Bells, Tex. There are so many papers put in the bank for safe-keeping it is impossible just what each and every one person says when they leave the papers. I cannot state the exact words, but I believe I am correct when I say that he says: "Simpson, here is a deed of some land to Miss Joe Kearnes and Mrs. Pat Henry that I want to lay away in the vault for safe-keeping, and the deed to be delivered after my death to them." I do not remember that he said anything about reserving any right to recall the deed.' In the latter part of August, 1905, Patillo authorized the witness Springfield, a real estate agent, to sell the land for him, and frequently thereafterwards talked with said Springfield about the prospect of effecting a sale thereof. In the spring of 1906 the witness Dover proposed to buy a part of the tract. Patillo declined to sell him a part, but offered to sell him the entire tract. Patillo died September 13, 1906. About September 15, 1906, the envelope containing the deed was delivered by the witness Blanton, who had succeeded Simpson as cashier of said bank, to Mrs. Mary Henry, who had same spread upon the records of Fannin county, Tex. It was shown that Patillo spoke of the grantees named in the deed as his daughters, and was very kindly disposed toward them. It was further shown that in the spring of 1906 in reply to a letter written to him by a daughter of Mrs. Mary Henry, in which she stated that, if she should ever want to live in the country, she would like to live in the home place on the land in controversy, he wrote to her, saying that he was an old man, and did not expect to live long as his health was failing him, and that he had arranged his business, so that, if her father wanted to live in the country, they could live there."

In addition to the facts found by the Court of Civil Appeals, it was shown by the witness Simpson that at the time the sealed envelope was delivered to him by Patillo he did not remember that there was any indorsement on the envelope from which it may be inferred his attention was not called to such indorsement by Patillo, and by the witness Pat Henry that T. J. Patillo married the mother of Madams Mary Henry and Josephine Ridings when they were of the tender ages of ten and three years, respectively, and that Patillo had no children of his own; that he had never been married before and never married after the death of his wife, which took place in 1891, and that he seemed to love the grantees as if they were his own children; that he lived at the home of Mrs. Mary Henry for about four years, having there a room furnished by himself, and which he called his home; that Mrs. Patillo the mother of grantees, died intestate and left community property of herself and husband consisting of real estate, which was disposed of by Patillo after his wife's death.

In the opinion rendered by the Court of Civil Appeals upon the record as above disclosed, it is held that there was no sufficient evidence to make an issue to be submitted to the jury as to whether or not there was such a delivery of the deed executed by Patillo to the defendants as to pass to them the title to the land in controversy. The language of that court is: "We are of the opinion that when the testimony recited, which is all there is in the record material to the question, is considered with reference to the rules of law controlling such cases, it must be said that it did not make such an issue, and that the trial...