Opinion
No. 4199.
July 12, 1932. Rehearing Denied September 8, 1932.
Appeal from District Court, Upshur County; Walter G. Russell, Judge.
Suit by W. F. Smith and another against R. H. Busby and others. From decree for plaintiffs, defendants appeal.
Judgment affirmed as respects R. H. Busby, and reversed and rendered as respects other defendants.
W. F. Smith and wife by amended original petition alleged that they were owners of a certain tract of 100 acres of land which was their homestead, and they had executed a deed to R. H. Busby to an undivided interest in the one-eighth royalty in the oil under the land, and the deed and the money consideration to be paid was by express agreement to be placed in trust with Everett Banking Company of Gladewater and held by the banking company; that the deed was not to be delivered to the grantee except upon timely performance of certain conditions, which he had not complied with; that, after the deed was acknowledged, and while it was in the possession of the deputy district clerk for the purpose of placing the official seal on the certificate of acknowledgment and of placing it in the Everett Bank at Gladewater, the grantee named obtained possession of it from the deputy district clerk by fraud and deceit, and refused to deliver it back to the deputy clerk. The petition alleged the further grounds that the deed was void for insufficient description of the land, and that the acknowledgment of Mrs. Smith was not in statutory requirement. The defendants Fails and Sorrelle were each made parties to the suit upon the allegation that subsequent to the date of the deed the grantee "has attempted to convey or assign an interest in and to said property" to each of them. The action was, in effect, for cancellation of the deed for wrongful delivery and removing cloud on the grantor's title. The prayer was to "have judgment of the court cancelling said instruments."
The defendant Busby answered by general denial, plea of not guilty, and specially that he purchased the oil royalty in good faith, and that he fully and timely complied with the conditions and terms of purchase, and the mineral deed was delivered to him. The defendants Fails and Sorrelle each separately answered by general denial, plea of not guilty, and specially that each of them purchased from R. H. Busby a one-sixteenth undivided interest in the oil royalty, for value and in reliance upon the mineral deed executed by plaintiffs and without notice of any of the facts affecting the alleged validity of the deed, if it were invalid. Each defendant further offered performance and tendered the consideration for the deed of $200 into court
In a trial before the court without a jury, a decree in favor of the plaintiffs was entered canceling the deeds in suit. The defendants have appealed from the judgment.
On February 5, 1931, the plaintiffs, owning 100 acres of land as homestead, agreed in writing, namely:
"The State of Texas, County of Upshur.
"Feb. 5th, 1931.
"Contract by and between R. H. Busby and W. F. Smith and wife, Effie May Smith; Whereas, W. F. Smith and wife have agreed with said R. H. Busby to sell him one-fourth of royalty on 100 acres described, to-wit; Being an undivided one-fourth interest out of a certain tract of land situated, lying, and being in the County of Upshur, State of Texas, described as follows: 100 acres out of Blocks 8 and 9 of the subdivision of Jose Maria Penida Survey, which was patented to Adolphur Stern, Pat. 608, Vol. 2, three miles North of Gladewater, Texas. R. H. Busby, party of the first part, is to have ten days from receipt of title to have same examined, and if approved by its attorneys, he is to pay W. F. Smith $200.00 cash for same, upon the following conditions: W. F. Smith and wife sign into said R. H. Busby instrument as set out in this instrument, and release the loan.
"Respt. signed,
"W. F. Smith
"Effie May Smith."
There is evidence by plaintiffs, although denied by evidence of the defendants, tending to show that on February 11, 1931, supplemental terms of agreement were entered into by the parties in terms, in substance, that within ten days after the abstract of title was furnished to Mr. Busby he was to accept or reject the title to the property, and that the mineral deed by W. F. Smith and wife was to be placed in the Everett Bank at Gladewater, to remain there for the stated time of acceptance or rejection of the title by Mr. Busby. On the same day of February 11, 1931, W. F. Smith and wife executed and acknowledged a mineral deed conveying in consideration of $200 an undivided one-fourth interest in the one-eighth royalty interest in the oil under the 100 acres of land. The description of the land given in the deed contained the reference as follows: "And said above described lands being now under an oil and gas lease originally executed in favor of W. M. Worley. It is agreed and understood that this sale is made subject to said lease, but covers and includes one-fourth of all the royalty and gas rental or royalty due and to be paid under the terms of said lease." After signing the deed, Mr. and Mrs. W. F. Smith each acknowledged the deed in due form before the deputy district clerk who had come to the farm for the special purpose to take the acknowledgment. The deputy clerk was then to take the deed to the clerk's office in the courthouse to place the official seal on the certificate of acknowledgment. Mr. and Mrs. Smith and the deputy clerk testified that the deputy clerk was instructed by Mr. Smith to take and put the deed in the bank at Gladewater after the official seal was put on the certificate of acknowledgment, and that he consented to do so. There are circumstances tending to corroborate the statement of R. H. Busby that he did not understand the deed was to be left in trust with the Everett Bank at Gladewater. Mr. Busby claimed that he was to have the deed and pay the money when the loan to the insurance company was paid and released. The deed, according to the undisputed evidence, was by the deputy clerk turned over to Mr. Busby after the seal was placed on the certificate of acknowledgment. The evidence respecting the delivery of the deed is conflicting. The deputy clerk testified, as pertinent to state, that: "I brought the deed on to Gilmer to put the seal on it. After I got to Gilmer I placed the seal on the certificate of acknowledgment and with the deed in my hand I went out of the court house door. Mr. Busby asked me to let him look at the deed a minute, which he did. We then went together to lunch at the café. He there asked me again to let him see the deed and I handed it to him. Just before we left the café I asked him, `Am I supposed to carry this deed to the bank, as I understood them?' and he said, `No, this is just far enough, and I will handle the balance myself.' * * * I did not tell Mr. Smith what Mr. Busby had done until the next time I saw Mr. Smith."
About February 27, 1931, Mr. Smith was informed, it seems, of the delivery of the deed to Mr. Busby.
Mr. Busby testified: "After the acknowledgments were taken Mr. Smith looked it over, and then handed the deed to me. At the time Mr. Smith handed me the deed there was nothing said by him or me about putting it in escrow in the bank at Gladewater. I never heard about any claim of placing in escrow in the bank until after March 27, when I went to pay off to Mr. Smith. I left Mr. Smith's place myself with the mineral deed and I brought it on to Gilmer."
Mr. Smith testified: "After I signed the deed and acknowledged it, my wife signed and acknowledged it. After it was signed up and acknowledged there was something said between me and Mr. Busby as to what should be done with the instrument and how it was to be handled. It was to be put in the Everett Bank there at Gladewater, and Mr. Busby was to have ten days in which to pay off or turn the deed down. The deed was then there at my house turned over to Mr. Moore (deputy district clerk). He was told to take it and put it in the Everett Bank at Gladewater."
On February 25, 1931, W. F. Smith delivered to Mr. Busby an abstract of the title of the 100 acres. On February 26, 1931, the attorneys for Mr. Busby gave him an opinion to the effect that good title was vested in W. F. Smith to all the surface estate and to an undivided three-fourths interest in the gas and oil estate in the land, but subject to the incumbrance of a lien by deed of trust to the Republic Insurance Company for the payment of three notes of $500 each. Mr. Smith had executed a lien to the Republic Insurance Company for a loan, and the loan had not been paid at that time. On February 27, 1931, Mr. Busby wrote a letter from Dallas to Mr. W. F. Smith, stating: "I got the opinion late this eve, and I had to come to Dallas. Will try and get requirements fixed while here. Will see you first of week as I have to go to Fort Worth in the morning." Mr. Busby testified that upon several different times after the date of the letter he requested Mr. W. F. Smith to have released the lien held by the Republic Insurance Company, but Mr. Smith denied this. Mr. Busby stated: "I would have accepted the title and have paid over the money had the requirements (release of lien) been met. When I met Mr. W. F. Smith here at Gilmer about the latter part of March, and after I had found out that the lien had been released, I told him I was ready to pay for the mineral deed as I had promised to do. I think that was somewhere about March 25th or 26th. From February 11th to March 26th I was able, ready and willing to pay for the deed as promised and I would have done so had this lease been secured. It is true I did not tender him any money until March 27th."
Mr. Busby was sick and at Mineral Wells for several days. Mr. Smith stated: "I got the abstract on February 25th and furnished it to Mr. Busby. At no time during the period between February 11th to February 25th did Mr. Busby or his attorneys offer me $200.00 as the consideration for the mineral deed. There was nothing ever offered until March 27th, more than a month after the delivery of the abstract."
Mr. W. F. Smith, on March 7, 1931, reduced to writing an affidavit made by him, and on same day had it "filed for record" in the county clerk's office. The affidavit, in substance, purported to give "notice to the public generally" that the mineral deed in suit was "without consideration, and that same was in the hands of R. H. Busby in violation of the terms of contract between affiant and R. H. Busby, and that R. H. Busby had not paid for the said mineral rights," etc.
This suit was filed on May 13, 1931. The mineral deed from W. F. Smith and wife to R. H. Busby was filed for record on March 25, 1931, and recorded June 7, 1931. On February 24, 1931, R. H. Busby by mineral deed conveyed to R. F. Fails of Archer county an undivided one-sixteenth interest in the oil and gas in the land, for the consideration of $107.50, cash paid The deed was filed for record May 20, 1931. On March 18, 1931, R. H. Busby by mineral deed conveyed to F. L. Sorrelle a one-eighth undivided interest in the oil and gas in the land for the consideration of $100 cash paid. The deed was registered March 18, 1931. The evidence shows that Mr. Busby exhibited to each Mr. Sorrelle and Mr. Fails the deed to him from W. F. Smith and wife, and there is no affirmative proof that they had actual notice as to any conditional delivery or possession of the deed without consent of the Smiths. Mr. Busby testified: "I showed the deed to Mr. Sorrelle and to Mr. Fails, as well as to Mr. Ditto. I had told them before I came down here that I was going down in the East Texas fields to look over the situation, and if I could find anything I liked, and could get it, I maybe would invest some, and they asked me to let them know if I was able to get hold of anything reasonable as they would come in with me. So on February 19th at Crazy Hotel talking to Mr. Ditto I showed him my deed and told him I thought it might be or would be a good investment, and he said he wanted a little of it and I sold him an interest. I went back home and told the others what I had bought and sold them an interest. The royalty deeds you hand me are the ones I executed to them and the checks you hand me are the ones I received."
The trial court made the following findings of facts:
"I find that the last four words, `and release the loan' in the contract dated February 5, 1931, were written in the contract after same was signed by W. F. Smith and Effie Mae Smith.
"I find that a supplemental oral contract was made by and between W. F. Smith and Effie Mae Smith, plaintiffs, and R. H. Busby, defendant, on February 11, 1931.
"I find that said supplemental contract provided that defendant Busby was to have ten days time after being furnished with an abstract in which to accept or reject title to the property.
"I find that the supplemental contract provided that the mineral deed from W. F. Smith and Effie Mae Smith to R. H. Busby should be placed in the Everett Bank at Gladewater, Texas, pending acceptance or rejection of title by R. H. Busby.
"I find that the said mineral deed was never placed in said bank, and that same was placed in the hands of R. H. Busby without the consent of W. F. Smith or Effie Mae Smith, but contrary to their instructions and intentions.
"I find that the defendant, R. H. Busby, was furnished an abstract to the property February 25, 1931.
"I find that the defendant R. H. Busby tendered payment to plaintiffs March 25, 1931.,
"I find that W. F. Smith and Effie Mae Smith on or about March 1, 1931, first learned that the said mineral deed had not been placed in said bank.
"I find that plaintiffs W. F. Smith and Effie Mae Smith repudiated the sale to defendant R. H. Busby before the latter accepted title or tendered payment."
The evidence supports the findings, and they are approved.
"Conclusions of Law."I conclude that there was no legal delivery to defendant R. H. Busby of the mineral deed from W. F. Smith and wife, Effie Mae Smith to R. H. Busby of date February 11, A.D. 1931.
"I also conclude that the mineral deed from W. F. Smith and wife, Effie Mae Smith to R. H. Busby dated February 11, 1931, is void for lack of proper description.
"I further conclude that the defendants F. L. Sorrelle and R. W. Fails cannot be innocent purchasers of their mineral deeds from R. H. Busby, dated February 19th, A.D. 1931, and February 25, A.D. 1931, respectively."
Carrigan, King Surles, of Longview, for appellants.
Ernest Goens and R. E. Allday, both of Tyler, for appellees.
There is presented for decision the effect on the title or interest in the property of the delivery in the particular circumstances of the case to the appellant R. H. Busby of the mineral deed from W. F. Smith and wife. The point may not be considered as involving an unauthorized delivery of the deed by an escrow holder but the passing of the instrument to the vendee by the agent of the vendors without authority or by wrongful procurement. The agreement of the parties was, as found by the trial court, in express terms to place the mineral deed upon its execution by W. F. Smith and wife to R. H. Busby in the Everett Bank at Gladewater with the future delivery and the payment of the purchase price to depend upon the acceptance or rejection by R. H. Busby of the title to the property within ten days after he had been furnished with the abstract of title. The object of the parties to create an escrow was never in fact accomplished for there was no delivery of the mineral deed ever made to the depositary bank. It was essential to an escrow that there be a delivery of the deed to the named depositary, and there can be no escrow without the delivery. 17 Tex.Jur. p. 94; 10 R.C.L. § 7, p. 625; 21 C.J. p. 870. The delivery was actually made, as appears, direct to the purchaser himself by the deputy district clerk on the same day that the deed was especially placed in his hands for the purpose of delivery to the depositary bank. Plainly enough, when the deputy district clerk received the mineral deed with the instruction from the vendor to place it with the Everett Bank in escrow, and the mineral deed was left with him for that purpose, there was no intention that this should constitute a delivery to him. It is the long-recognized rule that there must be delivery, to become effective as between the parties to the instrument, and this does not happen when such is not the intention of either party. The passing, then, of the instrument by the agent of the vendors, as the deputy district clerk must be regarded, to the vendee without authority or by wrongful procurement, such delivery in legal effect would not be that complete delivery of the mineral deed sufficient as between the parties to pass title or interest to the oil estate. 1 Devlin on Real Estate (3d Ed.) § 260; 18 C.J. §§ 94-104, p. 196; 8 R.C.L. § 45, p. 973; 14 Tex.Jur. § 59,,p. 821. And an ineffectual delivery is made manifest by the further fact that the purchaser had knowledge, as must be inferred from the supplemental terms of agreement made, that the delivery to the deputy district clerk was not with the assent of the vendors that the mineral deed should presently become operative and effectual. As between the purchaser and the vendors, there is no trouble in determining, in the circumstances stated, that there was not a delivery by consent or intention of the parties at the time of the passing of the instrument. But, while delivery is essential to render the deed effectual in law, it is in fact the performance of the conditions that imparts validity, and for this reason the title may be regarded as vesting in the purchaser whenever this has been done. In order, then, for the purchaser to predicate the right to have the unauthorized delivery of the mineral deed declared sufficient to pass title or interest to him to the estate in the oil, it must, under conceded rules of law, appear that there was either ratification by the vendors of the unauthorized act of the agent or the subsequent timely performance of all the requirements imposed in the agreement for a sale.
Looking to the agreement, it appears, first, that the vendors were to furnish or exhibit an abstract of their title. In the agreement was no express stipulation relative to the character of title to be conveyed in case of sale, but this situation could occasion no controversy because an agreement to furnish or make a marketable or "good" title would be implied. In the absence of any stipulation to the contrary, a marketable or good title is presumed to be given. 3 Devlin on Real Estate (3d Ed.) § 1490; 27 R.C.L. p. 368; 57 A.L.R. 1268. And, moreover, the vendor here testified that he intended to furnish or make "a good title" in case of sale. It seemingly appears, too, that a good and sufficient abstract was furnished, as the abstract as exhibited included all the instruments of conveyance, together with the statement of the lien to which the land was subject, and no objections were made to the abstract as not being full and explicit. The attorneys for the purchaser pronounced the title as exhibited to be a valid title and charged only with the outstanding unsatisfied mortgage of the insurance company. Upon the disclosure made to the purchaser of the title and the defect, his duty arose, in order to relieve him of the effect of default, to give notice of his intention to buy or refuse to buy the estate, to enable the vendor to cure the defect by the date set for closing the transaction. The agreement for a sale indicates that, under the exigencies of the occasion, which was the sale of an oil estate, time for the completion and closing of the transaction was the essence of the agreement. By the terms of the agreement, as found by the court, the purchaser in effect was allowed "ten days from the receipt of the abstract of title," not only as sufficient time to examine the character of the title he was purchasing, but as the limit of time to either "accept or reject the title to the property." The intention of the parties, as a matter of fair construction, was apparently to give to the purchaser the right or privilege to purchase or refuse to purchase at his election after examining and being informed of the character of title. The desire of the purchaser to accept the title and to close the transaction was necessary to be given to the grantor within the fixed time of "ten days." If the purchaser had done so, then the duty would have devolved upon the vendor to have cured the defect so as to be able to tender a good or merchantable title. The privilege to give notice of the desire to refuse or to accept and close the transaction within "ten days" did not itself constitute an executory contract for the sale of the oil estate; this latter only arose after the election had been duly exercised.
In this case doubt in point of fact arises as to whether or not the purchaser may be said to have made timely objection to the mortgage lien and acceptance of the title because the evidence in that respect is conflicting. The purchaser testified, and the vendor denied the statement, that he promptly and timely within ten days after the opinion of his attorneys requested the vendor to have the mortgage lien released so as to cure the defect and make good the title. There is no affirmative finding by the court, but there is necessarily implied from the decree the finding that the purchaser made no timely demand for the release of the lien or acceptance or for performance of the agreement for a sale. The opinion of the attorneys was promptly and fully given to the purchaser the next day after the delivery of the abstract. The tender of payment was made by the purchaser on March 25, 1931. At that date the time was overrun, and it was too late. It is believed that it may not be said in the special circumstances that the purchaser timely availed himself of the privilege to complete the purchase of the oil estate, and to invoke performance of the agreement for a sale. The default within the specific time fixed for performance gave the right to the vendor to forfeit the agreement for a sale. It is believed express ratification or ratification by estoppel in pais cannot be predicated in the circumstances. It was not so conclusively shown as to warrant disturbing the finding of the trial court in that respect as must be deemed he made in the light of the decree. By affirmative finding of fact by the court, the vendors actually and seasonably renounced or forfeited the agreement for sale because of the default of the purchaser. He attempted to file for record on March 7, 1931, a verified declaration of his renouncement for sale, as a means of public notice in fact of his intention and act. In the situation shown it is believed Mr. Busby may not predicate the right to title or interest in the estate or to performance of an executory contract for sale. And, because Mr. Busby acquired no title, he could pass no absolute title or interest to his respective subvendees.
As respects the subvendees of R. H. Busby, the vital question is, and their rights would depend entirely upon, whether or not they may invoke the protection given by the equitable doctrine of bona fide purchase. The court determined, as a matter of law, that the subvendees "can not be innocent purchasers of (under) their mineral deeds." By the third and eighth assignments of errors, the appellants bring in review that conclusion claiming that, as the mineral deed had been delivered over to Mr. Busby by the deputy clerk, the agent of both Mr. and Mrs. Smith, the subvendees were entitled to be protected as innocent purchasers. It is urged that the case of Tyler Building Loan Association v. Beard Scales, 106 Tex. 554, 171 S.W. 1122, 1200, was applicable, and the court should have rendered judgment for them. The appellees claim to the contrary, and further urge, first, that the appellants cannot invoke the doctrine because they have not pleaded estoppel, and, next, that the ruling in the case especially of Cardwell v. Shifflet (Tex.Com.App.) 294 S.W. 519, has application and controls the situation, and the court correctly so concluded and rendered judgment in their favor.
The subvendees affirmatively pleaded that they purchased an interest in the oil estate from R. H. Busby in good faith and for a valuable consideration and upon the apparently valid title of a mineral deed executed to him by W. F. Smith and wife and without any notice of fact or circumstance rendering such deed invalid. In such allegations there is sufficiency of pleading of all the factual elements constituting bona fide purchase, having the effect of an estoppel, and, it is concluded, available in this case as an affirmative plea of estoppel. 49 C.J. § 85, p. 87. The doctrine of bona fide purchase is upon the principle that, when the original legal owner has done or omitted something by which it was made possible that his property should come into the hands of a bona fide holder by an apparently valid title, it is just to regard him as estopped from asserting his ownership, and thus to protect the subsequent purchaser. 2 Pomeroy, Eq. Jur. (4th Ed.) § 736, p. 1500. The case of McMahan Co. v. State Nat. Bank (Tex.Civ.App.) 160 S.W. 403, is not understood to have decided that a plea of bona fide purchase, as full as here set out, would not be sufficient as a plea of estoppel. In that case J. O. Liddell, Jr., obtained the bills of lading and compress receipts by wrongful procurement from the bank and sold the cotton to McMahan Co. McMahan Co. set up that they bought the cotton in good faith and paid full value therefor and without knowledge of the wrongful procurement of the bills of lading and compress receipts. McMahan Co., though, did not go further and allege any negligence of the bank in trusting the bills of lading and compress receipts to the custody of J. C. Liddell, Jr., as an answer to the plea of the bank claiming that J. C. Liddell, Jr., was the tortious possessor of the cotton and not their agent. In such situation the court held that the appellants invoked the plea of bona fide purchase, but did not also invoke estoppel of the bank to assert or deny agency of J. C. Liddell, Jr., or "his right to sell." There was no contention there that the two pleas were not separate and distinct pleas. 2 C.J. § 68, p. 460.
It is believed that the case of Cardwell v. Shifflet (Tex.Com.App.) 294 S.W. 519, may not be regarded, as claimed by appellees, as ruling the situation here shown. There is distinguishment between the present case and the case of Cardwell v. Shifflet, supra. The Cardwell Case was not in the same situation as the present one as respects the factual element of the delivery of the deed by the intrusted custodian of the deed. There the notary public, whom the grantors made the custodian of the deed, never delivered over the deed to the grantor's daughter, although he had it registered, and, so far as the reported case shows, never surrendered possession of it to any one in violation of his trust. The "registration" of the deed was an act in excess of authority and "never authorized," and the authorized act of holding and not delivering over the deed to the grantee was not violated. In this situation the holding of the court was, in substance, that the principle of equity would not sustain nor warrant the claim of a bona fide purchaser. Evidently so because the original legal owner was himself wholly innocent of any act producing injurious effect to the subsequent sub-vendee, done either by himself or for which responsibility of a principal for the acts of his agent would legally rest. Therefore the case rested, in determining which of the two holders of title was the least at fault, entirely upon the single point of whether actual possession would sufficiently impart notice of the rights of the original holder against the unauthorized act of registration. The original holder continued in actual possession of the land. In that respect the court distinguished the case from that of Eylar v. Eylar, 60 Tex. 315, in the statement reading, "In that case a deed of conveyance valid upon its face was actually executed and delivered by the party in possession." The ruling in that case is consistent and not conflicting with the case, as relied on by appellants, of Tyler Building Loan Association v. Beard Scales, 106 Tex. 554, 171 S.W. 1122, 1200. In that case the general principle laid down was plainly that, where a deed is placed in the hands of an agent of the grantor, as the deputy clerk here must be held to be, to be delivered only on the performance by the grantee of some condition and a delivery has been made to the grantee without authority or by procurement, the purchaser from the grantee in good faith and for value and without notice will be protected upon the familiar doctrine that, as between two parties, both of whom have been wronged, the one least at fault will be protected. The Protection there given to the bona fide purchaser simply means that from the relations subsisting between the two parties, especially that which is involved in the innocent position of the purchaser, the original legal owner cannot be aided in what he is seeking to obtain, because it would be inequitable to do so. The rule so stated in that case means, and as so indicated in Boswell v. Pannell, 107 Tex. 433, 180 S.W. 593, that subvendees are protected in their holding of title or interest by estoppel and only by estoppel of the grantee to deny the validity of the conveyance. Link v. Page, 72 Tex. 592, 10 S.W. 699; Steffian v. Milmo Nat. Bank, 69 Tex. 513, 6 S.W. 823; Hussey v. Moser, 70 Tex. 42, 7 S.W. 606; Spotts v. Whitaker (Tex.Civ.App.) 157 S.W. 422. It is a principle well established that, where one of two persons must suffer by the acts of a third, he who has enabled such third person to occasion the loss must sustain it. 21 C.J. § 176, p. 1170. Therefore it may not be said as a matter of law that the actual occupancy by Mr. and Mrs. Smith of the surface estate of the land sufficiently imparted notice, and thereby prevented the claim of bona fide purchase of their rights against the unauthorized delivery of the mineral deed. There was a misdelivery of the mineral deed by the deputy clerk, the intrusted custodian of the same. Both Mr. and Mrs. Smith knew and assented to the delivery in the first instance of the mineral deed to the deputy clerk for the special purpose of delivering it to the Everett Bank, and his holding of the deed was in trust for her as well as for her husband. Guaranty Bond State Bank of Mt. Pleasant v. Kelley (Tex.Com.App.) 13 S.W.2d 69. The case of Eylar v. Eylar, 60 Tex. 315, would in this respect be applicable. And it is believed the factual element of misdelivery of the mineral deed by the deputy clerk, the intrusted custodian of the same, would go to make especially applicable the rule applied in the case of Tyler Building Loan Association v. Beard Scales, in the event the subvendees had no actual notice or knowledge of or about the transaction. The subvendees testified that they knew nothing about the misdelivery of the deed or about any agreement between the Smiths and R. H. Busby before or at the time of their purchase. They were shown the deed by Mr. Busby, and each paid him the agreed purchase price, relying on the face of the deed and Mr. Busby's possession of it. They were not in the vicinity of the land or in a position to know of the transaction. The subvendees lived, one in Archer county and the other at Mineral Wells. The statement of Mr. Bushy, quoted above, respecting his purpose in going to the oil field, would not of itself and alone show a joint enterprise or partnership of the parties. There appearing no circumstances even tending to impair or reflect upon the evidence of the subvendees, it is therefore concluded that under the law and the evidence a judgment in their favor was warranted under their plea of bona fide purchase. This ruling, though, does not dispose of the appeal in view of the further conclusion that the mineral deed was void for insufficiency of description of the land. And this ruling should not be regarded as prejudicing the case upon another trial, should the evidence then offered present a different situation.
The appellants urge as errors the conclusion of the court that the mineral deed was void for insufficiency of description of the land and in sustaining the objection and ruling out as evidence the lease to H. F. Worley and the deed from the Republic Insurance Company to W. F. Smith offered in aid of the description and to identify the land. The mineral deed conveys "an undivided one-fourth interest in and to all the oil, gas and other minerals in and under and that may be produced from the following described land situated in Upshur County, Texas." The deed then gives the description of the land as "100 acres out of Blocks 8 and 9 of the sub-division of Jose Maria Pineda Survey, which was patented to Adolphur Stern, Pat. 608, Vol. 2, three miles North of Gladewater, Texas." Following the above description of the land appears, namely, "And said above described lands being now under an oil and gas lease originally executed in favor of W. M. Worley and now being held by W. M. Worley. It is agreed that this sale is made subject to said lease, but covers and includes one-fourth of all the royalty and gas rental and royalty due and to be paid under the terms of said lease, in so far as it covers the above described property." The appellants offered in evidence, as stated in the bill of exception, "an oil and gas lease executed by W. F. Smith and wife to H. F. Worley, dated and registered prior to the mineral deed to R. H. Busby, and recorded in Vol. 9, page 555 of the Oil and Gas Lease Records of Upshur County, Texas, and which lease described the 100 acres owned by W. F. Smith by referring to the deed from Republic Insurance Company to W. F. Smith of date December 24, 1930, and recorded in Vol. 75, page 223, of the Deed Records of Gregg County, Texas." As further stated in the bill of exception, "said defendants in connection with the said lease also offered in evidence the certified copy of the deed from the Republic Insurance Company to W. F. Smith dated December 24, 1930, and recorded in Vol. 75, page 223, of the Deed Records of Gregg County, Texas, which said deed correctly described the 100 acres belonging to W. F. Smith." The appellees objected to the introduction of these instruments "because the lease so offered was to H. F. Worley and not to W. M. Worley as stated in the mineral deed to R. H. Busby from W. F. Smith and wife, dated February 11, 1931." It is believed the court correctly excluded the oil lease to H. F. Worley. The oil lease was, as stated in the bill of exception. "executed by W. F. Smith and wife to H. F. Worley." The evidence does not identify such oil lease as the document the deed referred to. The document of reference in the deed was to a lease "executed in favor of W. M. Worley." No such document was shown to have existed. The extent of the oral evidence was as testified by W. F. Smith: "Prior to this time (the date of the present deed) I had leased the land to a man named Worley — I don't mean Worley, either — I leased to a man named Jordan, and he turned it over (leased) to Worley. I sold the lease to a fellow named Jordan. I don't recollect the date of it now."
The deed was in the circumstances Inadmissible in evidence. Stier v. Latreyte (Tex.Civ.App.) 50 S.W. 589. The description data of the deed cannot be varied or contradicted by parol evidence. 14 Tex.Jur. §§ 204, 251, pp 992 and 1045. As respects the deed from the Republic Insurance Company, however, quite a different and distinct point is involved. It does not appear that the deed was offered in evidence upon the ground only that it was a document called for or referred to in the mineral deed or the lease to H. F. Worley or W. M. Worley. The objection made to it at the time was met by the explanation that W. F. Smith "also testified that he owned no other land in the county (besides the 100 acres) except an interest in his father's estate." The purpose of offering the deed was evidently, not to contradict the mineral deed, but the more clearly to locate and identify the land conveyed by the mineral deed. It was shown that the deed offered in evidence was the deed from the insurance company to W. F. Smith conveying to him in the first instance the 100 acres of land, and that it "correctly described the 100 acres belonging to W. F. Smith." W. F. Smith testified that he lived "on the 100 acres of land" intended to be conveyed to R. H. Busby, and that it "was described as out of Blocks 8 and 9 of the Sub-division of the Jose Maria Pineda Survey," and that he owned "no other land in the County" and "had no other land in the Pineda Survey." That extrinsic evidence may be introduced in order to identify the land by the description given in the deed is not open to question in this state, where the description in the deed is not inherently uncertain. Smith v. Crosby, 86 Tex. 15, 23 S.W. 10, 40 Am.St.Rep. 818; Giddings v. Day, 84 Tex. 605, 608, 19 S.W. 682; 14 Tex.Jur. §§ 220, 250, p. 1011; 3 Jones on Evidence, § 450. It thus appeared by all the extrinsic evidence offered that the land intended to be conveyed could in fact be reasonably ascertained and identified from the whole description in the mineral deed.
The mineral deed from W. F. Smith and wife was not inherently uncertain. It stated the definite facts in relation to the land, of the number of acres, the county of location, the survey, the block in the subdivision of the survey, and the name of the original patentee. The deed therefore was not utterly devoid of any matter of identity whatever, and devoid of any reference from which the specific 100 acres intended to be conveyed can be identified and more clearly located. A deed is sufficient, so far as certainty of description is concerned, if it states the county, the number of acres, and the survey. Miner v. Paris Exch. Bank, 53 Tex. 559; Arnall v. Newcomb, 29 Tex. Civ. App. 521, 69 S.W. 92; Perry v. Stevens, 44 Tex. Civ. App. 108, 97 S.W. 1075. The deed, it is concluded, was sufficiently certain. Gresham v. Chambers, 80 Tex. 544, 16 S.W. 326; Smith v. Westall, 76 Tex. 509, 13 S.W. 540; Linnartz v. McCulloch (Tex.Civ.App.) 27 S.W. 279.
The point is therefore sustained, and the judgment is accordingly reversed and the cause remanded for another trial.
On Rehearing.
It is believed, upon a reconsideration of the evidence, that, as before held, the mineral deed from W. F. Smith and wife was not utterly void for lack of any matter of description of the land intended to be conveyed. It is thought, though, the ruling should not be adhered to that there was not in the record sufficient extrinsic evidence to aid in the description and identification of the land referred to in the mineral deed. Besides oral evidence, there was the written affidavit of W. F. Smith which in effect was an admission of the correct description of the land intended to be conveyed by the mineral deed.
The judgment of this court is therefore changed, and the judgment of the trial court is affirmed as respects R. H. Busby, but is reversed and here now rendered in favor of F. L. Sorrelle and R. F. Fails, denying cancellation of the mineral deeds made to them by R. H. Busby; the appellant R. H. Busby to pay one-half the costs of the appeal and of the trial court, and the appellee W. H. Smith to pay one-half of all costs of the appeal and of the trial court.
The motions for rehearing of appellants and appellees are overruled except as herein stated.