Walker v. Erwin

• Decision Date: 28 November 1907
• Citation: 106 S.W. 164
• Parties: WALKER v. ERWIN.
• Court: Texas Court of Appeals

106 S.W. 164

WALKER v. ERWIN.

Court of Civil Appeals of Texas.

November 28, 1907.

Appeal from District Court, Lamar County; T. D. Montrose, Judge.

Trespass to try title by H. E. Walker against L. R. Erwin. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

B. B. Sturgeon and W. F. Moore, for appellant. Hale, Allen & Dohoney, for appellee.

WILLSON, C. J.

The suit was brought by appellant against appellee to try the title to 36 2/3 acres of land, part of the M. Click survey in Lamar county. Appellant's petition contained the allegations usually made in the statutory suit of trespass to try title. Appellee's answer was a general demurrer, a plea of not guilty, and a general denial of the truth of the allegations in the petition. On a trial had in the district court of Lamar county, at appellee's instance the jury was peremptorily instructed to return a verdict in his favor. In accordance with such a verdict, on January 2, 1907, a judgment was rendered against appellant.

By an instrument in writing dated November 1, 1897, Mrs. E. A. Walker, a widow, divided into two parts a tract of land then owned by her, and conveyed to her daughter Effie, who afterwards, in 1899 or 1900, married E. T. Nix, one of the parts; and to her son (appellant) the other part, which included the land in controversy. By the terms of the instrument, the estate thereby passed to her children in the land was not to commence until Mrs. Walker's death, she reserving to herself the use of the land during her life. The execution of the document was duly acknowledged by Mrs. Walker; and, after executing it, she wrapped it in a cloth and placed it in a trunk kept at her home. About 1900, because of some difference between her and her son-in-law Nix, she took the instrument from the trunk, carried it to the home of one of her neighbors and there, by burning, destroyed it. Afterwards, but when does not appear from the record, she conveyed the land to J. W. Walker, another son, whom, on February 16, 1904, she joined in a deed conveying same to R. E. Wood, who, by a deed dated February 27, 1904, conveyed same to appellee. Mrs. Walker died May 27, 1904, being then 72 years of age. This suit was instituted June 8, 1904.

By his fifth assignment of error appellant complains of the action of the court in peremptorily instructing the jury to return a verdict for appellee. This assignment should be overruled if it appears from the evidence in the record that ordinary minds reasonably could have reached no other conclusion than that the instrument, executed by Mrs. Walker in 1897, never became effective as a conveyance, because not a deed; or, if a deed, because never delivered to, and accepted by appellee. Lord v. Ins. Co., 95 Tex. 216, 66 S. W. 290. At the time the trial was had the instrument referred to had been destroyed. The evidence in the record as to its form and contents is meager, but sufficient, we think, prima facie, to establish it as in form, and, if delivered, in its effect, a deed. We therefore shall so treat and designate it. Martin v. Faries, 22 Tex. Civ. App. 539, 55 S. W. 602; Jenkins v. Adcock, 5 Tex. Civ. App. 466, 27 S. W. 21; Griffis v. Payne, 92 Tex. 293, 47 S. W. 973; Griffis v. Payne 55 S. W. 757; Matthews v. Moses, 21 Tex. Civ. App. 494, 52 S. W. 113; Bombarger v. Morrow, 61 Tex. 417; Chrisman v. Wyatt, 7 Tex. Civ. App. 40, 26 S. W. 759; Lockridge v. McCommon, 90 Tex. 234, 38 S. W. 33. The question then follows: Did the evidence present an issue as to the delivery of the deed, which it was the duty of the court to submit to the jury?

Briefly stated, the evidence in the record, bearing on the issue as to whether the deed was delivered to and accepted by appellant, was as follows: Prior to the time Mrs. Walker executed the deed she had frequently talked with appellant about conveying the land to him and to his sister Effie. In 1894, when appellant, after an absence of several weeks, visited his mother at her home, she stated to him that she would make him a deed to the land, if he would remain with her long enough. Appellant, in reply to this offer, stated that he could not stay—that he had to leave the next morning—and then suggested to her that, if she wished to do so, she could make the deed after he left, and turn it over to his sister Effie, as such an arrangement would be all right with him. Her reply was that she would do so. Appellant left his mother's home the morning following this conversation with her, and did not know until about 1900 that his mother had made the deed. He learned of it then in connection with information conveyed to him to the effect that his mother, after executing the deed, had destroyed it, and in connection with an invitation from his sister, Mrs. Nix, to join her in a suit she contemplated bringing to establish the deed. On November 1, 1897, at the time she executed the deed, Mrs. Walker stated to the notary engaged by her to prepare it that she wanted appellant and her daughter Effie to have the land, and wished the deed to be executed by her so written as at her death to vest title in them to the respective parts of the tract to be conveyed to them by her. The notary prepared the deed accordingly. After executing it, she asked the notary "what was the best thing to do with it?" and he suggested to her to take it and lock it up in her trunk, and let it remain there until her death, when the parties interested would find it. She told him that she would do so. In accordance with the advice given her by the notary, Mrs. Walker did place the deed in a trunk, which during her lifetime had belonged to a deceased daughter, and which was equally accessible to Mrs. Walker and to her daughter Effie. In a conversation had with Mrs. Holcomb in 1898, Mrs. Walker declared that she had given the land to appellant and to her daughter Effie, and that the latter had the deed upstairs in a trunk and could have it recorded when she wished to. In this conversation she explained to Mrs. Holcomb that she had made a deed instead of a will, because a will "could be destroyed, and that a deed could not be." On an occasion when Mrs. Walker and her daughter Effie were starting to town, the latter asked her if she would take the deed and have it recorded. Mrs. Walker replied that she would take it some other time for that purpose. At the time she destroyed the deed, Mrs. Walker stated to her neighbor that no one had ever seen it except herself and the notary who wrote it. Mrs. Nix testified that she had read it and seen it frequently in the trunk. After Mrs. Walker destroyed the deed, her daughter, Mrs. Nix, brought suit to establish it, or to recover the title to and possession of the land—which does not clearly appear from the record. A trial of the daughter's suit was had in October, 1900. Appellant was not a party to that suit—having declined to join his sister in its institution—but was present at the trial and testified as a witness for his mother. On this trial Mrs. Walker testified that she had never delivered the deed to any one, that she had never given any person the right to take it out of her trunk, and that she had a right to burn it as she had done. On the same trial appellant testified that he knew his mother had burned the deed; that he did not, and had not questioned her right to do so; that he had not repudiated her action in burning it; that he did not know whether he had recognized her right to burn it or not, etc. He also testified at the trial of that suit, according to the testimony of witnesses in this one, that he did not claim the land under the deed; and, according to the testimony of R. E. Wood, to whom the land was conveyed by J. W. Walker, as before stated, made a similar statement to him. In his testimony on the trial of the pending suit, appellant explained that he understood, and thought his mother at the time understood, that her daughter's suit was to recover the immediate possession of the land; that the rights claimed by him in the land he understood accrued at his mother's death, etc. On the trial of the pending suit, he further testified that his mother never said anything to him about taking the land away from him; that, on the contrary, during the trial of her daughter's suit, she assured him she was not trying to dispossess him of the land or to affect his right to it, but intended him to have it. At that time, appellant testified, his mother was old and feeble. It further appeared from appellant's testimony on the trial of the pending suit that, at the time the daughter's suit was tried, he knew that his mother had endeavored to sell the land to Bob Wood. He learned this, he thought, from the letter Mrs. Nix wrote him, suggesting that he join her in her suit.

We think the testimony recited made it the duty of the court to submit to the jury the issue as to whether the deed made by Mrs. Walker in 1897 had been delivered to and accepted by the grantees therein; and that the court erred in peremptorily instructing a verdict for appellee, unless it was proper to do so, notwithstanding the evidence bearing on the question of delivery and acceptance, on the issue as to an estoppel, hereafter to be discussed.

To operate as a conveyance it is as necessary that a deed be delivered to the grantee as it is that it be executed by the grantor. Steffian v. Bank, 69 Tex. 518, 6 S. W. 823. It is also essential to its operation as a conveyance that the deed be accepted by the grantee. Tuttle v. Turner, 28 Tex. 759. But both delivery and acceptance may be established by circumstances. Actual manual delivery need not be shown (Hubbard v. Cox, 76 Tex. 239, 13 S. W. 170; Bunnell v. Bunnell. 111 Ky. 566, 64 S. W. 424, 65 S. W. 607), and any words or acts showing an intention to receive the title will be sufficient to prove an acceptance. Gould v. Day, 94 U. S. 405, 24 L. Ed. 232. It is not necessary that the delivery should be made by the grantor to the grantee in...