Neal v. Pickett

• Decision Date: 17 February 1926
• Docket Number: (No. 764-4363.)
• Citation: 280 S.W. 748
• Parties: NEAL et al. v. PICKETT.
• Court: Texas Supreme Court

280 S.W. 748

NEAL et al. v. PICKETT.

(No. 764-4363.)

Commission of Appeals of Texas, Section A.

February 17, 1926.

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

Suit by Mrs. Jennie B. Pickett against T. V. Neal and others. The Court of Civil Appeals (269 S. W. 160) affirmed the judgment of the district court for plaintiff, and defendants bring error. Judgments of both the Civil Appeals and district courts reversed and cause remanded.

Haltom & Haltom, of San Antonio, for plaintiffs in error.

L. B. Wiseman, of Floresville, and Dibrell & Mosheim, of Seguin, for defendant in error.

NICKELS, J.

The judgment of the district court includes findings (supported by evidence) that plaintiffs in error, and those under whom they claim, had and held continuous, peaceable, exclusive, and adverse possession of the land in controversy, and paid taxes thereon, for a period of more than 10 years immediately antecedent filing of the suit. Those findings have not been complained of or challenged by any party to the suit, nor does anything in the opinion of the honorable Court of Civil Appeals (269 S. W. 160) have different import. The deed of February 17, 1906, under which title and right to possession is claimed, was duly registered August 24, 1906, and the suit was filed December 26, 1919.

The apparent title and rights thus acquired were dissolved by the district court, and that dissolution was approved by the Court of Civil Appeals, upon these grounds: (a) There was no delivery of the deed; hence its effect, rather noneffect, is exactly comparable to that of a forged deed. (b) Possession under a forged deed is not "under title or color of title" within the meaning of the three-year statute (articles 5507, 5508, R. S. 1925); nor (c) under a "deed or deeds duly registered" within the meaning of the five-year statute (article 5509, Id.). (d) Operation of the ten-year statute (article 5510, Id.) is precluded by claim of title, etc., under such a deed. And (e) assertion of limitation title, or of the statutes of three, four, five, or ten years' limitation is precluded through estoppel. The rights of the parties are rightly determinable by the principles of law involved in this statement of the bases of the judgment as applied to the facts.

The comparability of an escrowed deed, finally delivered by the holder prior to performance of the named conditions, and a forged deed, rests, of course, upon nonintent of the grantor or those in his stead. This at once suggests that the absolute lack of effect may not, inexorably, be the same in the one case as in the other. Forgery presents an instance where the owner of the land, or his privies, are wholly absent, and the noneffect is lacking ab initio; there is no possible ground for implications, supplementary consent, waiver, estoppel, etc., to supply operative force. An escrow, contrarily, exhibits an agreement having some effect from the beginning and originally vesting a species of equitable title in the grantee. Lynn v. McCoy (Tex. Civ. App.) 200 S. W. 885; 21 C. J. pp. 882-883. The contingency of the depositary's delivery may, according to the real intent as disclosed by circumstances, be a condition subsequent rather than precedent. Manton v. San Antonio (Tex. Civ. App.) 207 S. W. 951. Ex necessitate, in many cases, the depositary must judge, and has the power to decide in the first instance, whether the contingency has occurred, and his decision (included in the delivery) may prevent the delivery from being wholly without effect even though he may have been mistaken as to the event. Fred v. Fred (N. J. Ch.) 50 A. 776; 21 C. J. pp. 878, 879. And so long as contractual right and capacity exists, the escrowing grantor, or his privies, may waive strict performance or nonperformance of the pre-existent condition and thus make the delivery as effectual as if the condition had not been prescribed. Burnett v. Continental State Bank (Tex. Civ. App.) 191 S. W. 172, 174. We do not mean to challenge, in any wise, the abstract and general proposition that an escrowed deed, transmitted by the depositary without performance of the named conditions by the grantee, does not operate to convey the legal title. Fire Ins. Co. v. Stockstill (Tex. Civ. App.) 197 S. W. 1036, and cases there cited; Blue v. Conner (Tex. Civ. App.) 219 S. W. 534; Lynn v. McCoy, supra; 21 C. J. pp. 880, 883; 16 Cyc. p. 579; Fearing v. Clark, 16 Gray (Mass.) 76, 77 Am. Dec. 394; Provident Life & Trust Co. v. Mercer County, 18 S. Ct. 788, 170 U. S. 593, 42 L. Ed. 1156; Wilkins v. Somerville, 66 A. 893, 80 Vt. 48, 11 L. R. A. (N. S.) 1183, 130 Am. St. Rep. 906, and note page 910 et seq. But we do mean to say that (as is true of all general rules) there are many exceptional cases where it cannot properly apply. In the case of a forgery, the deed is wholly void — it is no deed at all and no possibility of delivery. In respect to an escrow contract, and its consequences, the delivery may be wholly void, or it may be voidable only, or it may have complete obligatory force although the conditions, as stipulated, may not have been performed; the actualities, and not the abstract principle, exerting superior force.

There is here a finding by the jury of relation to the escrow and delivery, but not of controlling effect. In response to the first special issue submitted to it, the jury answered that Lewis & Ellerd "failed to place on any part of 26½ acres of land described in the contract the machinery necessary for boring for oil, * * * and that within said six months work on said well was not begun as provided for in said contract." This finding, of course, establishes actual nonperformance of the escrow conditions, and if it stood alone, under the general rule mentioned, the entire lack of force in the delivery would be a resultant. Measured by the original contract itself, the sole condition of final delivery was that whose nonexistence is thus established. The finding, however, does not mean that some machinery, etc., was not placed on the land, or that some work was not begun, within the six months' period, and the record, without dispute, shows that some machinery, or tools, were thus placed and some work was done. The testimony of Ellerd, McCullough, and Lewis is to the effect that the derrick had been built and machinery installed, etc., and work commenced within the period; the dispute of their testimony is to be found in that of Jonathan Pickett, one of the defendants in error, and he testified to the existence of some tools and some work there within the period. The dispute is as to the extent, and not as to the existence, of the work and machinery. We mention this, not because we have any concern with the weight of the testimony or in finding facts on conflicting evidence, but for the purpose of showing that, at the time of the delivery of the deed, there did exist visible evidence of some effort to comply with the condition named. Whether the effort was sufficient, or not, was the thing of which Mr. Brown (the depositary), and those who caused him to make delivery, had to judge at the time. The evidences of the effort, whatever it may have been, existed on the ground in a manner such as plainly to show to those interested just what had been done. A. J. Pickett, the grantor, had died in the meantime, but his independent executor, privies, and all interested, were in a position to know, or to ascertain through exertion of the slightest effort, exactly what had been done by Ellerd & Lewis or what had been omitted by them.

The tract of land was situate within 800 yards of the courthouse at Floresville and within a few hundred yards of the residences of all the defendants in error, and at all times was open to their observation. At least one of them (Jonathan Pickett), who manifested great interest at the time, was on and across the tract every day for a long time immediately before the delivery and afterward. The case is not one where the depositary, without notice to the grantor or his privies, judged the matter of performance, vel non, and made delivery, or where in making the delivery he acted as agent of the grantee. On the contrary, the petition avers, Mr. Brown (the depositary), Mr. Murray (the independent executor), and Mr. Ballard (as "agent and attorney of plaintiffs") represented all of the defendants in error in making the delivery. Mr. Ballard, personally, had a substantial interest in the matter and recovered five acres of the tract on that interest, and represented himself, also, in the delivery. Mr. Murray had authority to represent all of them except Ballard by reason of his independent executorship (Roy v. Whitaker, 48 S. W. 892, 49 S. W. 367, 92 Tex. 346, 355); but if that status had not given the authority, the averment of his authority of representation is conclusive here. And there is no warrant for an idea that there was lack of ability or experience in the representation of any of the defendants in error. Mr. Ballard was a lawyer of ripe experience; Mr. Murray was state senator; Mr. Brown was cashier of the local bank. Nor is there basis for a thought that, for lack of ability, etc., any of the defendants in error were circumstanced to their disadvantage. There was not, and could not have been, any concealment, or prevention, of means of information; as stated, whether any machinery, tools, etc., had been placed upon the land, and whether any work had been done upon the well, and the extent thereof, were matters demonstrable by visible and tangible evidences on the ground and whose observation was equally open and available to all parties at interest. As stated, the dispute is not about the total absence, vel non, of work or machinery, but about the extent thereof. And whatever the facts were, the defendants in error, at the time, knew them, or could have ascertained them by the exertion of the slightest effort. That was the situation when the question of delivery of...