Manton v. City of San Antonio

• Decision Date: 27 November 1918
• Docket Number: (No. 6091.)
• Citation: 207 S.W. 951
• Parties: MANTON v. CITY OF SAN ANTONIO.
• Court: Texas Court of Appeals

207 S.W. 951

MANTON v. CITY OF SAN ANTONIO.

(No. 6091.)

Court of Civil Appeals of Texas. San Antonio.

November 27, 1918.

Rehearing Denied January 8, 1919.

Error from District Court, Bexar County; J. T. Sluder, Judge.

Action by H. D. Manton against the City of San Antonio. There was a judgment for defendant, and plaintiff brings error. Affirmed.

J. F. Carl, P. H. Swearingen, Jr., and George G. Clifton, all of San Antonio, for plaintiff in error.

R. J. McMillan, of San Antonio, and J. D. Dodson, of Laredo, for defendant in error.

FLY, C. J.

This is a suit instituted by plaintiff in error to restrain defendant in error from entering upon and constructing a street upon his land on West Travis street, in the city of San Antonio, Tex., being 15 feet off the south end of his land conveyed to him by Henry Laager and Mrs. Augusta Weinert. The court granted a temporary injunction, which was continued in force by agreement until the final hearing, on October 13, 1917, when it was dissolved, and a permanent writ of injunction denied, and the land was decreed to defendant for street purposes.

It was answered by defendant that the property was taken by it, for the use of the state, at and before the filing of the original petition; that it was taken after adequate compensation had been tendered to and accepted by plaintiff, and was appropriated for a public street; that a deed was executed by plaintiff to defendant conveying the land in controversy, containing this provision:

"This deed is given, however, subject to the condition that Obraje or Travis street, between North Flores street and Main avenue, will be widened within two years from the date hereof; otherwise title to revert to the grantor herein."

It was further alleged that the provision was a condition subsequent, and was substantially complied with, time not being of the essence of the contract, and that the street was widened within three or four months after the expiration of the two-year period; that plaintiff was estopped to set up the condition in the deed because he had acquiesced in the work of widening the street, and made no claim for any damages on account of the street not having been sooner widened. A general demurrer was urged to the answer, and its overruling is made the subject of the first assignment of error.

It was further alleged in the answer "that on or about the 4th day of March, 1914, the plaintiff, H. D. Manton, executed and delivered in escrow, to the city of San Antonio, a certain deed conveying all his right, title, and interest in and to an easement for public street purposes in and to the strip of ground described in plaintiff's petitions"; and, further, "that the plaintiff did not intend that said condition in such escrow deed should present time as the essence of said contract of conveyance." There was also a general denial of the allegations of the petition.

The first assignment of error assails the action of the court in overruling a general demurrer to the answer. The assignment is overruled. In article 4663, Revised Statutes, it is provided that a defendant in an injunction proceeding may answer as in other civil actions, and it is the undoubted rule that, where the answer in an injunction case contains a general denial, it is not subject to attack through a general demurrer. This is the rule as well in any other civil action. Bedwell v. Thompson, 25 Tex. Supp. 245; Oliphant v. Markham, 79 Tex. 543, 15 S. W. 569, 23 Am. St. Rep. 363; Murphy v. Smith, 38 Tex. Civ. App. 50, 84 S. W. 679.

The undisputed evidence in this case shows that a deed was executed by plaintiff to defendant conveying to him the land, but followed by the proviso or condition hereinbefore copied, and, after being acknowledged by plaintiff, was delivered by him to an agent of defendant, with the request that it be placed in escrow with a certain bank. If the agent had kept the deed and failed and refused to place it in escrow, it would have evidenced the transfer of the title to defendant with a condition subsequent attached. If, however, the agent delivered the deed to the bank it would not constitute a delivery of the deed to defendant, and the deed would be in escrow; and, if the sole consideration was the widening of the street, it would be subject to a condition precedent to its delivery. In the first instance the title would be vested in the grantee subject to a condition subsequently to be performed; in the second, the deed would be in escrow, to be delivered when the delivery was preceded by the performance of a certain condition, unless there were other considerations for the execution of the deed.

There is no exception to the rule that a deed cannot be delivered to the grantee as an escrow, but if delivered to him it becomes an operative deed, freed from any condition not expressed in the deed itself. Dev. Real Est. § 314; Insurance Co. v. Clarke, 1 Tex. Civ. App. 238, 21 S. W. 277. The seeming exception, as said in the case cited, is really not one; for when placed in the hands of the grantee to be deposited with a third party there is no delivery. It has, however, been held, as hereinbefore stated, that if the grantee violates the agreement and retains the deed it will not be in escrow. Dev. Real Est. § 317; Fairbanks v. Metcalf, 8 Mass. 230.

In this case the deed was placed by the agent of defendant in the possession of a bank, and at once became an escrow deed, and would become absolute only when the condition was performed by the grantee. The evidence does not show any attempt to alter, add to, or vary the written condition, if such evidence had been permissible, but it was delivered to the bank under the terms of the deed alone.

If there had been no delivery of the deed to the bank to be held as an escrow, the law as to conditions subsequent would undoubtedly be applicable, and a substantial compliance with the terms of the condition would satisfy the law and prevent a forfeiture of the title. The law, much less equity, does not favor forfeitures, but, in the case of conditions precedent, it will not permit the title to pass until the condition is performed. Conditions subsequent are strictly scrutinized and rigidly construed. In cases of conditions precedent, however, it is ordinarily the case that the purchase money has not been paid and no title vested, and...