Puckett v. Hoover
| Decision Date | 21 May 1947 |
| Docket Number | No. A-1158.,A-1158. |
| Citation | 202 S.W.2d 209 |
| Parties | PUCKETT v. HOOVER et al. |
| Court | Texas Supreme Court |
Morgan, Culton, Morgan & Britain, of Amarillo, and Boyer, McConnell & Hankins and A. B. Hankins, all of Perryton, for petitioner Puckett.
Hoover, Hoover & Cussen and Ed Hoover, Jr., all of Canadian, for respondent Hoover and others.
L. H. Puckett, the petitioner here, agreed to purchase one-half the minerals in a section of land in Lipscomb and Ochiltree Counties from Ed Hoover, Jr., and Miss Evaleen Henson, the respondents, for $1,850 cash. On July 2, 1945, Puckett handed the respondents a draft on himself for this sum and the respondents handed him an executed deed. The draft reads:
"Amarillo National Bank
On or before 30 days from date and approval of title as full consideration for one-half minerals under Sec. 470, H. & T. C. Ry. Co., Block 43.
Amarillo, Texas, July 2, 1945
Pay to the order of Ed Hoover, Jr. and Evaleen Henson, $1850.00 Eighteen Hundred Fifty and No/100 Dollars.
To L. H. Puckett
Amarillo Nat'l Bank, Amarillo, Texas
(Signed) L. H. Puckett."
The parties disagree as to what happened next. The respondents' version is that Puckett saw them on July 3, 1945, and said he had just come from the county seat town of Lipscomb where he had found that respondents "conveyed this land away in 1926," that they did not "own it" and that "the deal was off." The petitioner's version is that he investigated the records, found the respondents owned only one-fourth of the minerals, and informed them that "they didn't own this interest"; that Hoover told him the conveyance of 1926 which reduced respondents' interest to one-fourth was in effect a mortgage and "should not have been recorded," that Hoover would "get it straightened up and delivered," and upon this representation Puckett waited until October for the respondents to perfect their title, which they did not do. Then, Puckett contends, he concluded to accept title to the one-fourth interest which respondents did own, with a proportionate reduction of the consideration, and so filed the deed for record.
The respondents sued Puckett to quiet title to one-half the minerals in the land in question, and by cross-action Puckett sought to quiet the title in himself to one-fourth of the minerals, tendering into court one-half the original consideration. Tried to the court without a jury, the judgment was in favor of Hoover and Miss Henson.
The Court of Civil Appeals reversed the judgment because of the error of the trial court "in holding that because the parties had contracted with reference to one-half of the minerals the appellant could not elect to take and pay for one-fourth of them upon the failure of appellees' title to the other fourth," and remanded the cause for a new trial because the lower court had refused to make a finding upon the issue of whether Puckett rejected title and terminated the contract of purchase on July 3, 1945, as the respondents contend. 197 S. W.2d 602, 604.
This writ of error was granted upon petitioner's point that: "The Court of Civil Appeals erred in holding that the delivery of the deed by respondents to petitioner, the grantee named therein, was not effectual to pass title." In granting the writ we inclined to the view that the challenged holding would trench upon the well-settled rule that there can be no delivery of a deed in escrow to the grantee. This principle is stated in 7 Thompson, Real Property (Permanent Ed.) § 4196:
Chief Justice Stayton applied this rule in Heffron v. Cunningham, 76 Tex. 312, 13 S.W. 259, and it has been consistently followed in this jurisdiction since that decision, the latest expression on the point being found in Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515. Also see 14 Tex. Jur., Deeds, § 61; 17 Tex.Jur., Escrow, § 7.
But further appraisal of the record leads to the conclusion that the Court of Civil Appeals did not in any way qualify this principle. There was no attempt in this case to deliver the deed to petitioner in escrow. Indisputably, what the parties did was to make an executory contract to the effect that Puckett would buy one-half the minerals in question at the agreed price if he found the title was good. He certainly never accepted the deed with the intent that it pass title to him presently. To the contrary, the stipulations in the draft that he handed the respondents necessarily imply that he had thirty days within which to approve the title. This draft effectively protected Puckett against paying for the property if he disapproved the title, since Hoover and Miss Henson could never have collected on the draft, drawn as it was upon Puckett himself, without the latter's acceptance. Moreover, it is undisputed that immediately after the exchange of the instruments Puckett went about investigating the record title and on the following day made a report to the respondents of what he had found. Of course the contemporaneously exchanged draft and deed should be construed together. 16 Am.Jur., Deeds, § 175. The Court of Civil Appeals correctly announced that: ...
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...which specify or limit the time of performance, even where time is of the essence of the contract, may be waived. Puckett v. Hoover, 146 Tex. 1, 202 S.W.2d 209 (1947). Further, such a waiver may be express or implied. Kennedy v. McMullen, 39 S.W.2d 168 (Tex.Civ.App.--Beaumont 1931, writ ref......
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