Opinion
No. 4143.
March 25, 1932. Rehearing Denied April 7, 1932.
Appeal from District Court, Lamar County; Geo. P. Blackburn, Judge.
Action by Mrs. Willie Ford and another against John Hackel and another. From an adverse judgment, defendants appeal.
Reversed and rendered.
Alleging that they jointly owned in equal undivided parts section 44, block 10, H. G. N. Railway Company surveys in Pecos county, appellees Mrs. Willie Ford and Mrs. Annie Campbell, daughters of J. R. Rutherford and his wife, Mattie A. Rutherford, both deceased, and widows, respectively, of C. T. Ford and J. K. P. Campbell, also both deceased, by this suit against appellant Lillian Hackel, also a daughter of said Rutherfords, and her husband, John Hackel, sought to have canceled, because same constituted a cloud on their title, they alleged, an instrument in writing dated June 1, 1911, recorded in said Pecos county, June 6, 1911, purporting to be a general warranty deed conveying said section 44 from said J. R. and Mattie A. Rutherford to said Lillian Hackel. It was recited in the deed that the consideration therefor was love and affection the Rutherfords had for said Lillian Hackel, and $1,000 paid by her to them. In their petition appellees alleged that said instrument was never in fact delivered by the Rutherfords to Lillian Hackel and was never in fact accepted by her, and therefore that same never became effective as a deed. The instrument purported to have been executed where the Rutherfords resided in Lamar county, 400 or 500 miles from Pecos county. It was undisputed in the evidence that Lillian Hackel never saw the instrument and did not know it existed until May, 1929, which was after the death of both J. R. and Mattie A. Rutherford. Testifying as a witness in her own behalf, she (Lillian Hackel) said she claimed the land "as soon as she heard about the deed." It appeared in the evidence heard at the trial that the Rutherfords by a deed dated August 17, 1915, for a recited consideration of $500 undertook to convey an undivided one-half interest in the land to appellee Mrs. Willie Ford, and further appeared that appellants Mrs. Hackel and her husband in a deed dated April 5, 1929, for a recited consideration of $10 paid to them "and other good and valuable consideration," joined other heirs of the Rutherfords in a deed conveying all their "right, title, interest and claim as the heirs at law" of the Rutherfords in the land to J. K. P. Campbell. After hearing the pleadings and the evidence, the court below concluded that the only issue of fact made thereby was one he submitted to the jury by a question as follows: "Do you find from the preponderance of the evidence that Lillian Hackel did not accept the deed of date June 1, 1911, from Rutherford and wife?" The jury having answered that Lillian Hackel did not accept the deed, the court rendered judgment canceling same and in favor of appellee Mrs. Willie Ford for a one-half undivided interest in the land and in favor of appellee Mrs. Annie Campbell for the other onehalf undivided interest therein, subject to a claim the state had for unpaid purchase money due it by said J. R. Rutherford to whom it sold the land. The appeal was prosecuted by Lillian Hackel and her said husband, John Hackel.
Moore Moore, of Paris, for appellants.
Dohoney, Beauchamp Lawrence and Long Wortham, all of Paris, for appellees.
The parties seem to be in the attitude of agreeing that the controlling questions in the case as it was tried in the court below, and as it appears in the record sent to this court, were: First, as to whether the deed of June 1, 1911, referred to in the statement above, was delivered by the Rutherfords to Mrs. Hackel; and, second, as to whether said deed was accepted by Mrs. Hackel.
It is held that proof that a deed was recorded at the instance of the grantors is sufficient, prima facie, to show that such deed was delivered to the grantee at the time it was recorded. Breckenridge v. Coffield (Tex.Civ.App.) 283 S.W. 310; McCartney v. McCartney (Tex.Civ.App.) 53 S.W. 388. In their pleadings appellees admitted that the Rutherfords had the deed recorded June 6, 1911, but they (appellees) alleged that the act of the Rutherfords in having it recorded was due to "mistake and inadvertence" on their part. The allegation was without evidence to support it, and, as we view the record, the presumption that the deed was duly delivered, arising from the proof that it was placed of record as stated, was not in any way rebutted.
It was undisputed in the evidence that Mrs. Hackel did not know the deed existed until May, 1929, which was after the death of the Rutherfords, and undisputed, further, that Mrs. Hackel accepted the deed and claimed title to the land under it as soon as she learned of its existence. It has been held that the fact that the grantor in a deed is dead does not render a grantee's acceptance thereof inoperative. Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661, 5 A.L.R. 1660.
On the case so far as stated, we think it ought to be held it appeared as a matter of law that the deed became effective as a conveyance when it was recorded, unless it should be said that the uncontradicted testimony of Mrs. Hackel that she accepted the deed could not be treated as conclusive of the fact that she did accept it. We think that testimony was strengthened by the presumption the law indulged that the deed was accepted (Dikes v. Miller, 24 Tex. 417; Miller v. Miller, 91 Kan. 1, 136 P. 953, L.R.A. 1915A, 671, Ann.Cas. 1917A, 918), and that it should be treated as sufficiently establishing the acceptance of the deed.
By such acceptance Mrs. Hackel became bound by the terms of the deed, but her failure to comply with such terms did not divest her of the title she thereby acquired to the land. Taylor v. Sanford, 108 Tex. 340, 193 S.W. 661, 5 A.L.R. 1660. The liability she incurred by the acceptance could have been enforced by proper proceedings, by proper parties, commenced at a proper time.
It follows from what has been said we think the judgment should have been in favor of Mrs. Hackel instead of in favor, as it was, of the appellees, unless she (Mrs. Hackel) was bound by the deed in which she joined other heirs of the Rutherfords in conveying their interest in the land as heirs to J. K. P. Campbell. Appellants' contention with reference to this deed was that it was without a consideration, and that, being ignorant of the existence of the deed of June 1, 1911, they were induced to execute it by representations made to them that the title to the land was then in the Rutherfords, whereas they had conveyed same to Mrs. Hackel. As we understand appellees, they are not in the attitude of claiming that any effect should be given that deed, for in their brief they say: "If title passed under this deed (of June 1, 1911) to Mrs. Hackel, then the deed to J. K. P. Campbell of her interest in the estate of Mr. and Mrs. Rutherford as an heir passed no title whether the consideration as to Mrs. Hackel did or did not fail."
The judgment will be reversed, and judgment will be rendered in favor of appellants.
SELLERS, J., not sitting because of relationship to the parties.
On Motion of Appellees for a Rehearing.
It is insisted in the motion that this court erred when, reversing the judgment in appellees' favor, it rendered judgment in appellants' favor.
The contention should be sustained if the question made by the evidence as to whether Mrs. Hackel accepted the deed to her was one of fact; for in that event this court did not have a right in the face of the finding of the jury that she did not accept the deed to here render judgment in her favor. Sprinkles v. Kerbow (Tex.Com.App.) 279 S.W. 805. But if the question so made was one of law it ought not to have been submitted to the jury, and their determination of it was without legal effect.
In the presentation of the appeal the parties were not in disagreement, but were urging, in effect, that the question was one purely of law for the court's determination. It was in keeping with that view of the matter that this court ignored the finding of the jury and rendered the judgment in favor of appellants. We are not convinced that the course pursued was erroneous, and therefore overrule the motion.
SELLERS, J., not sitting.